Frank’s Case Book

Harry Beck was a telephone linesman and a member of the Communication Workers of America Union. If he wanted to be a linesman he really had little choice about membership. If you want to be a linesman, you are compelled to pay union dues. Beck, however, was displeased that part of his dues were used for union political activities — contributions to candidates and lobbying for legislation.

With the support of the National Right to Work Foundation, Beck sued his union and the suit ultimately wound its way to the US Supreme Court. In 1988, that court ruled that Beck’s First Amendment right to free association precluded the Communications Workers of America from, in effect, compelling Beck to support political activities. Workers who are compelled to pay union dues, the court said, are free to withhold that portion of the dues devoted to political activity.

Belatedly in 1992, George H. Bush issued executive order 12800. The order required federal contractors to post in a conspicuous place worker rights under the Beck decision. When Bill Clinton became president, he wasted little time. In February 1993, Clinton paid back union support and withdrew the executive order. The decision in Beck versus Communication Workers of America is the law of the land, but Clinton was in no frame of mind to enthusiastically pursue enforcement. Free association rights for union workers were not a priority for the Clinton administration.

The focus here is not on the wisdom or folly of the Beck decision. Rather, it is to place in context the derisive question conjured up by Democrats as to whether John Ashcroft will enforce the law as US attorney general. Of course, he will enforce the law, but the question is ill-posed and not particularly illuminating. Then again, the purpose of the question was not to shed light but rather to paint a picture of darkness.

Attorneys general, like all prosecutors save independent counsels, have finite time and funding. They must, therefore, set priorities in the application of those resources. This is a good thing. Who would enjoy a society overseen by prosecutors with unlimited resources rigorously enforcing laws without the necessity to exercise judgment.

Reasonable people can disagree as to the best apportionment of resources for pursuing violent or white-collar crime. However, the selection of these priorities is a reflection of the values and standards of an administration. How much effort is devoted to enforcement of environmental regulations, organized crime, or anti-trust laws is a measure of where an administration believes the nation’s problems lie.

It is a safe bet that George W. Bush and his attorney general will devote fewer resources to raiding the compounds of religious cultists, storming Miami homes at gunpoint in search of young illegal Cubans, and seeking out and eradicating instances of possible federal aid to Boy Scouts. Squandering prosecutorial resources dissipates the moral authority of an administration. The sage and thoughtful enforcement of the law, by contrast, can help define an administration and reinforce and support its legislative initiatives.

For example, it is a melancholy fact that a large number of African-Americans are concerned that Bush’s aversion to a racial spoils system and race-based preferences will undermine the ladder to educational and employment success. The Bush position imposes an additional moral burden to aggressively enforce anti-discrimination laws. Vigorous enforcement of equal protection laws can validate the Bush claim to be a uniter.

Bush is also unconvinced of the efficacy and legality of the proliferation of laws restricting the Second Amendment freedom to bear arms. If Bush believes that such laws unreasonably constrain law-abiding citizens, he is under an additional obligation to prosecute and jail those convicted of using a gun in the commission of a crime. Again priorities in enforcement define an administration’s vision.

Some Democratic Senators in the Ashcroft confirmation hearings were so bent on angrily satisfying their core constituencies that they failed to ask the real and important questions. Rather than asking Ashcroft if he will enforce the law, they should have asked about his priorities in enforcement.

Had the protest and contest of the Florida presidential election results not lasted so long and engendered so much bitterness, we would have had more time to focus on the real uniqueness of this election. Vice-President Al Gore won the popular vote, while Governor George Bush won the vote in the Electoral College and hence the presidency. If we were not obsessing over the dangling chad or the dimpled ballot, national attention might have lingered over the wisdom of the Electoral College.

It is ironic that before the election, Gore partisans were open to the possibility of an Electoral College win and a loss in the popular vote. They anticipated that an extraordinarily large margin in Texas for Bush, might overwhelm narrower victories by Gore in electoral vote-rich states like California and New York. The outcome, of course, was reversed. Bush won in the Electoral College.

There is an easy emotional appeal to the argument that the winner of the popular vote should be the next president. It conforms to our general notions of and sympathies with democracy. While the Founders appreciated the ethical imperative that the government should be based on the ascent of the governed, they also realized that the tyranny of the majority could be just as destructive as the tyranny of the few. That is precisely why they fashioned a limited government constrained by internal checks and balances and specific Constitutional limitations.

For example, the state representation in the House of Representatives is proportional to the population. The Senate, where each state is entitled to two representatives, balances the arrangement of the House. In engineering terms, the Senators with six-year terms sequenced so that a third of the seats are contested every two years, act as a low-pass filter keeping the Representatives, with two-year terms, from responding too rapidly and with insufficient deliberation to the passing whims of the populace. In an important sense, the argument for the Electoral College is the same argument for having a Senate and a House rather than a simple unicameral legislature.

In the Electoral College, each state is represented by the number of representatives plus two, the number of Senators. Although populace states are entitled to more electors, rural and low population states are represented in higher proportion than their relative population. This arrangement has several important advantages.

The primary advantage is that the Electoral College insures that a president must have broad support over many regions of the country as opposed to popularity in a relatively few heavily-populated states. If presidents appeared to be solely regional candidates, it would tend to undermine the cohesiveness of the country. Given the current Electoral College, no person could become president without both the support of a substantial portion of the population and broad support over different regions of the country.

The Bush-Gore presidential election was incredibly close. Whoever would have ultimately been the victor, would have had popular appeal over a broad number of states. If the election had been based only on the popular vote, both would have engaged in a different campaign strategy. Bush would have concentrated his efforts in Texas and some populace midwestern states where he might have accumulated even larger majorities. Likewise, Gore would have focused in the Northeast trying to generate enough votes to offset Bush’s advantages elsewhere. Bush would have had to tack further to the right of the political spectrum, while Gore would have fled to the left. Both candidates would have had less incentive to appeal to the middle.

The Electoral College arrangement forced both candidates to contest states where both had a chance for victory. This forced Bush and Gore to hone their messages for more moderate and mainstream voters. In the end, both the candidates and the country would have been more polarized with a direct popular vote. Less polarization may displease strong-minded advocates, however reducing polarization enhances political stability.

Second, the Electoral College insures that the voices of important minorities will be heard. The voice of a minority might be drowned out in a national popular election. Minorities, both ethnic and economic, would likely be very important in some states. The effort to win the electors from these states compels candidates to address the concerns of minorities.

Third, the Electoral College, particularly with the winner-take-all in each state feature, strengthens broad consensus-building parties while diminishing the extreme voices of small radical parties. Essentially small parties do not participate at all in the Electoral College unless they can win a majority in a single state. The winner-take-all aspect of the Electoral College keeps small parties from becoming king-makers in close elections, swinging their votes in the Electoral College in exchange for political concessions. If small political parties could acquire electoral votes in proportion to their popular vote, temporary coalitions of parties could pick a president who could not generate a large plurality of the vote alone. The effect of small parties pulling the larger parties towards the extremes causes political instability in parliamentary democracies around the world.

Some have argued that we could still have an Electoral College, but that electors should be elected on a district-by-district basis with two electors chosen state-wide in each state. We are told that such an arrangement would make it less possible for a person who won fewer votes to win the electoral vote.

Ironically this would likely not have been the case in this last election. Given the closeness of the popular vote, it is likely that Bush and Gore would have won roughly equal numbers of district-by-district electors. However, Bush won a large number of relatively less populace states. With additional statewide electoral votes, I suspect that such a scheme would have given Bush a larger margin in the Electoral College. Gore’s Electoral College total could have been additionally reduced if Green Party candidate Ralph Nader had managed to win the electors from a few districts. It is hard to draw these conclusions strongly since under a different scheme for picking electors, both candidates would have employed different campaign strategies.

Finally, the Electoral College isolates potential problem elections to either a few states or a single state. If the popular vote winner won the presidency, in a close election like the last one, voting irregularities in every state, indeed in every precinct grow in importance. Dangling chads in Illinois, the illegally extended voting hours in Saint Louis, the suspiciously high voter turnouts in some precincts would have all been the subject of the same intensive scrutiny lavished on Florida. Imagine not only the US Supreme Court and the Florida courts issuing sometimes-conflicting opinions, but large numbers of different states’ courts burying the country in a blizzard of rulings.

The United States is the longest currently operating Constitutional republic in the world. Structural changes to a system that demonstrated such resilience and robustness should be undertaken with great care and deliberation. The results of the last presidential election confirm the wisdom of the Electoral College arrangement. Perhaps the only salutary substantive change would be to eliminate the actual electors and replace them with an automatic count. The actions of a handful of “faithless” electors in the last election would have added instability to an already stressful situation.

“Importantly to me, I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution.” — Chief Justice C. J. Wells of the Florida Supreme Court, December 8, 2000.

On the fourth of December the US Supreme Court fired unanimous warning shots over the heads of the Florida Supreme Court justices for acting like a kangaroo court. Rather than publicly embarrassing their Florida colleagues, the US Supreme Court simply asked for clarification of the Florida Supreme Court’s decision, while at the same time vacating the Florida court’s decision to order recounts. Apparently four of the seven justices have no shame and decided to hop blindly into yet another ill-advised decision that the Florida chief justice said “has no foundation in the law of Florida as it existed on November 7.”

At times courts are required to make unpopular decisions as they defend the rights of individuals. By definition, unpopular people or causes are the ones that require the most protection from majorities. Since judges sometimes stand against the popular will, deference to judicial authority rests upon a common acceptance of judicial temperance. When judges overreach, when they extend their decisions beyond what is minimally necessary to protect rights or adjudicate between rights, they usurp legislative and executive power. It is not an issue of whether judicial policy is wise or foolish. Rather, by capriciously circumventing the duly elected branches, zealous judges, who yield to the temptation of the law, bring into real question whether there is indeed the rule by the consent of the governed. Do this too often and the due deference to the authority of the courts will wither and we will no longer be afforded the necessary protections of the courts.

Judicial activism invariably leads to additional animosity and acrimony. If the Florida Supreme Court had not prevented the Secretary of State of Florida from certifying the presidential election on November 14, it is likely that Gore would have been under intense political pressure to concede. However, the extension granted by Florida’s Supreme Court for manual recounts gave time for positions to harden making it more and more difficult to ultimately accept either George Bush or Al Gore as the next president. Even if Gore had proceeded with a contest after certification, there would have been more time available for trial and due consideration of various potential remedies.

Because the Florida Supreme Court truncated the contest time period, we now face the prospect of election officials racing willy-nilly trying to interpret unclear ballots with no meaningful guidance from the Florida Supreme Court as the clock rapidly ticks away toward the December 12 deadline. The Florida justices are now required to act quickly because they acted too hastily and precipitously before. The chief justice of the Florida Supreme Court has belatedly realized the political danger inherent in the behavior of four of his fellow justices. He rightly worries that the recent Florida decision “will do substantial damage to our country, our state, and to this Court as an institution.”

Thesis: The subjective evaluation of ballots in the recount conducted in selected counties in Florida is apt to inadvertently comply with the prejudices of those who perform the evaluation. The consequence is the “mismeasure of the vote.”

One myth used to sustain the stature of scientists is that scientists are impeccably objective and this objectivity is employed in the relentless and unbiased pursuit of the truth. It turns out that, at best, such a noble disinterest remains an honest aspiration, not an accomplished fact. Even the best scientist graced with the best intentions can, if not very careful, be fooled by the unconscious drafting of data to the service of their own preconceived notions and prejudices.

In his seminal work, The Mismeasure of Man, Harvard professor Stephen J. Gould documents how the implicit assumptions of nineteenth century scientists about the intellectual superiority of whites permitted them to use quantitative measurements to “prove” their notions on the ranking of human intelligence.

Extrapolating from the rough interspecies association between relative brain size and intelligence, nineteenth century scientists like Samuel George Morton used brain size as an intraspecies measure of human intelligence. As a substitute for actual brain measurements, cranial capacities were measured by filling skulls with seeds or beads. Results were correlated with race. The experiment lent itself to self-deception.

As skulls were filled, these scientists could jiggle a dishearteningly small skull from a white person to fit in a few more beads. A conspicuously small skull from a white person might be discarded because of uncertainty in the skull’s origin. Similarly, a suspiciously large skull from a black person might be put aside on similar grounds. In addition, the normalizations of skull size base on age and sex from non-representative data samples allowed room for further fudging. To no one’s surprise, the results “scientifically” ranked whites at the top of the intelligence scale, blacks at the bottom, and others in between.

Deliberate skewing of results by mean-spirited racists might be expected, but Gould concludes upon examination of the original data, that the errors in analysis were largely inadvertent. Their own preconceived ideas fooled scientists as they “directed … tabulations along pre-established lines.”

Scientists, like other humans, will never be perfect. Even aware of the possibility of self-deception, they can still fail to see beyond the blinders of their own expectations. They must be vigilant and employ techniques like “double-blind” studies to shield themselves from unintentional bias.

One method to avoid self-deception is to establish specific rules before hand for data interpretation and culling anomalous data, and to decide upon criteria for the classification of results.

The recent hand recount schemes employed in the Florida elections fall dangerously close to the fallacy of possible self-deception. Despite known imprecision in punch card ballots, the possibility of confused voters, and dangling chads, both Democrats and Republicans agreed to the machine tabulation of ballots. If hand counts were necessary, Palm Beach County had a written policy to ignore “dimpled” chads as inconclusive. Although it is possible in some cases to make a reasonable guess as to “voter intent,” machine counts and rigorous rules for ballot acceptance retain the virtue of impartiality and hence fairness and credibility.

From a distance, it appears that some Florida counties have jettisoned objective and repeatable methodology for manual counts in the service of manufacturing votes for Al Gore. Palm Beach resorted to inferring presidential choices from dimpled ballots despite a pre-election policy to the contrary. Gadsdsen County produced Gore votes by an unknown procedure hidden from public view in violation of law.

Broward County election officials were the most creative. There they judged dimpled ballots on the basis of the votes for other candidates on the same ballot, as if “ticket splitting” were not an American tradition.

Like the nineteenth century scientist using a thumb to force as many beads into a white skull as possible, Broward election officials examined and re-examined ballots in the hopes of harvesting barely discernable indentations into Gore votes. Even if we grant honest intentions, such a situation is fraught with subjectivity. The Florida recount has descended into the “mismeasure of the vote.”

Clinton saw the law was lax
And gave the truth forty whacks.
Al Gore saw what he had done
And gave the country forty-one.
With due apologies to Lizzie Borden.

Somehow the word “supreme” hardly seems like an sufficient superlative or adequate description in reference to the Florida Supreme Court. Perhaps the terms “penultimate,” “paramount,” or “preeminent” more aptly apply to the Court’s opinion of itself.Many times when a Court acts to reverse a decision, it is only the decision of a single other branch of government it overrules. In a single action this week, the Florida Supreme Court overruled all three branches of government. It overruled the executive branch, when it precluded the Florida Secretary of State Katherine Harris from exercising her authority under Florida statute to certify the Florida elections. It overruled the legislative branch when the Court thought that a single week allowed under law to certify an election was not sufficient. To complete the “trifecta with a capital-T” [1], the Florida Supreme Court overruled the trial court that decided that Harris had acted within the discretion granted her by statute. Indeed, the trial judge pleaded that, “…I cannot enjoin the Secretary to make a particular decision, nor can I rewrite the Statute which, by its plain meaning, mandates the filing of returns by the Canvassing Boards by 5:00 p.m. on November 14, 2000.” The Florida Supreme Court had no such qualms.

The Florida Supreme Court did not act slowly or reluctantly, exhibiting proper judicial temperament. Rather it acted enthusiastically and aggressively. The attorneys for Al Gore had read Florida election law and even they did not have the audacity to ask the Florida Supreme Court to enjoin Katherine Harris from certifying the elections. The Florida Supreme Court volunteered to do this on its own. Indeed, there are press reports that the Court took one hour to come its decision after the oral arguments. This would only be possible if the judges had made up their minds before there were presented with any oral arguments.

The Court’s action was based on the assertion that Florida election law is self-contradictory. On one hand, the law specifically directs that the Secretary of State “shall” certify the election one week after the election. On the other hand, the law has provisions under which there can be recounts that may extend beyond specifically expressed certification date. With this claim of internal contradiction as a device, the Court took it upon itself to alter the certification dead line to November 26.

Of course, there really is no contradiction. Once the election is certified, the election can be “contested.” The Florida statute allows additional recounts in the context of a contest after certification. Questions about recounting and about “dimpled” chads can be resolved in such a contest. The Florida Supreme Court even commented in its decision that the “will of the people” is paramount and cited Boardman v. Esteva (Florida, 1975). However, that was a case of evaluating an election after it had been certified, in other words a “contest.” It is the Supreme Court’s decision not the Florida election statute that is internally inconsistent.

While it is true that the Florida Supreme Court is populated with Democrats, a couple of whom are avid Al Gore supporters, that is not the problem with this Court. This particular Court is just an example of why judges should be confined to interpreting the law rather than creating it. This Court argues that it is balancing various factors: allowing as many people to have their votes counted as possible, allowing enough time after certification for contesting the election, and still having a slate of electors selected by the time they are needed to vote in the Electoral College. There are valid arguments for altering this balance in time. However, that is properly a legislative function and the time constraints have already been decided. The Florida legislature decided to allow a week for certification and about a month for contests.

The Florida Supreme Court is not ignorant of this distinction. Indeed, it was brought up in oral arguments. However, the Court chose to ignore it because to grant the validity of this distinction would have rendered the Florida election law internally consistent and would have robbed the Court of the opportunity to substitute its own best judgment for that of the legislature’s.

It is more than ironic that a Court that proclaims that it is vitally concerned with “will of the people,” finds no problem with an unelected courts cavalierly thwarting the will of the people as expressed by their elected legislature and elected executive.

The Florida Supreme Court’s action thus eloquently makes the argument why the country would be better off with a Bush presidency. A Bush Administration would be more likely to select judges capable of behaving with judicial restraint as opposed to those enamored with judicial arrogance.

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[1] This is a term borrowed from Dick Vitale, a television college basketball announcer notorious for his glib superlatives.