political fights are not about ideology. They are about
raw power. This is what makes them especially ferocious.
When jobs, money and patronage are at stake no one can afford
to give an inch. America’s elite is at war with itself.
Arrayed on on one side are Hollywood, the big media and
many of the lawyers. Arrayed on the other side are big oil,
tobacco, the aerospace industry, indeed much of corporate
America. The Gore-Bush contest may have been the most boring,
issueless election on record. Yet without the US Supreme
Court’s abrupt termination, it may well have ended in bloodshed.
Bill Clinton was probably America’s most conservative President
since Calvin Coolidge. Yet Republican hatred of him ran
so deep that it went ahead and impeached him.
to the outpourings of dreary establishment types like David
Broder and David Gergen, it is America’s elite not the nation
itself that is deeply divided. In the normal course of things,
imperial adventures "humanitarian intervention,"
hunting for oil in the Caspian, or hitting back at the "terrorists" can
be relied on to paper over the cracks. Clinton learned this
a long time ago. Whenever he got into trouble politically,
out came the bombers and some country somewhere would get
it. Conservatives applauded the bombs, liberals the "humanitarianism."
During the Fight for Florida neither Gore nor Bush had this
option at his disposal. So bitter was the acrimony that
representatives of the two factions were unable even to
cobble together an agreement to secure an orderly succession
of power. Consider: On November 7 the United States was
confronted with scarcely the most intractable problem in
the world. There had been a close election and there had
to be a recount. This sort of thing happens every day. It
should not have been beyond the bounds of human ingenuity
to come up with a reasonable plan to count Florida’s votes.
One proposal: There would be a statewide manual recount,
but so-called "dimpled chads" would be tossed
out. Another proposal: A statewide manual recount, with
discretion left to the individual canvassing boards and
possible disputes left to the later contest stage.
President Al Gore announced, however, that he only wanted
a manual recount in four heavily Democratic counties. This
had nothing to do with the closeness of the vote. Nor did
it have anything to do with getting an accurate tally of
the votes cast. Gore was just trawling for extra votes in
Democratic precincts. Governor Bush, on the other hand,
wanted no recounts at all. Having lost the popular vote
in the country, he was nonetheless happy to assume the Presidency
on the basis of a 300-vote margin in a state in which 6
million people went to the polls. America’s elite was unable
to work out a reasonable solution to the problem. There
was no accepted procedure in place. There were no "wise
men" prepared to mediate between the two camps.
elite seems bent on self-destruction. Gore would never have
been accepted as the winner of Florida based on selective
recounts in four Democratic counties. He would never have
been accepted as the winner of Florida on a count that only
included the so-called "undervotes." He would
never have been accepted as the winner of Florida on a count
that included "dimpled chads," particularly if
other counties refused to consider them. Similarly there
was no way in the world George W. will be accepted the winner
of an election in which he received fewer votes than his
opponent. Nor will anyone ever believe that he won Florida.
long-established institutions proved to be of little help.
They only compounded the problem. The Florida Supreme Court’s
intervention was particularly inane. Its first ruling, issued
on November 21, extended the certification deadline. This
served no purpose whatsoever since it did not allow enough
time for the recounts. The Court could have allowed Secretary
of State Katherine Harris to certify the election, as prescribed
by the statute, thereby leaving plenty of time for the election
contests. Second, it could have extended the certification
deadline beyond November 26. Third, it could have ordered
a statewide manual recount, which could easily have been
completed by December 12.
Florida Supreme Court ruling, issued on December 8, was
even more absurd. It ordered a statewide recount, without
explaining why it had failed to so in its earlier ruling.
In the recount only the so-called "undervotes"
would be counted. The "overvotes" evidently belong
in the trash. No explanation for this bizarre double standard.
The Court would allow each individual canvassing board to
decide what counted as a vote. Most outrageously, the Court
demanded that the votes counted for Gore in Miami-Dade County
before the termination of the recount be added to his tally.
But those votes were based on a full manual count, not just
a count of the "undervotes." The remaining Miami-Dade
precincts would only be allowed to count the "undervotes."
Moreover, a in Miami-Dade a fairly permissive standard had
been used as to what counted as a vote. Who knows what the
new standard would now be?
addition, as Florida Justice Major B. Harding, joined by
Justice J. Leander Shaw argued: "Even if such [a statewide]
recount were possible, speed would come at the expense of
accuracy, and it would be difficult to put any faith or
credibility in a vote total achieved under such chaotic
conditions." But there were many other idiocies as
well. As Michael McConnell pointed out in Slate:
"Under the Florida Supreme Court’s decision, the initial
decisions by the county boards…are given no legal weight.
Instead, the judiciary takes upon itself the legal responsibility
of deciding whether to conduct manual recounts, of conducting
those recounts, and of certifying the winner…. Instead of
a process in which both branches of government are involved an
initial determination by county executive officials followed
by judicial review to ensure that their discretion has not
been abused the Florida Supreme Court adopted a procedure
in which one branch of government, the judiciary, has sole
discretion to decide all contested questions."
Florida Supreme Court’s abysmal decision in turn provoked
an absurd decision by the US Supreme Court. The US Supreme
Court could have responded to Florida’s inanities in a number
of ways. It could have simply ruled that the Florida results
had been legally certified and there existed therefore no
good reason for a manual recount. According to Florida law
the only justification for a manual recount is failure of
the voting machines to work properly. Since the machines
did their job on Election Day, there was no need for any
more counting. Alternatively, the Court could have sent
the case back to the Florida Supreme Court and demanded
that it come up with a recount scheme that would ensure
fairness one in which all votes were counted and according
to a single standard. If the Florida Court failed to meet
the December 18 deadline, then it would have no one to blame
but itself. Instead, the US Supreme Court came up with the
silliest argument of all. There needed to be a manual recount
but, alas, there was now no time for that. The Florida Legislature
intended to obtain the so-called "safe-harbor"
benefits of 3 U.S.C. Section 5 according to which its election
results had to be certified at least six days before the
meeting of the Electoral College. But the US Supreme Court
had no business deciding this issue. It should have left
it to others. The Florida legislature and the Florida courts
can decide for themselves if they want to enjoy "safe
harbor" benefits or not. The Florida Legislature could
have picked its slate of electors. If the recount had gone
Gore’s way, the Florida Supreme Court could have demanded
that Secretary of State Harris certify a Gore slate of electors.
And then it would have been up to the US Congress to decide
whom to accept.
the "equal protection" arguments the US Supreme
Court arguments came up with will undoubtedly have far-reaching
effects. Any voter who feels in some way shortchanged by
the voting machine he uses or by the counting practice of
his canvassing board will now have grounds to object to
any election result he does not like. Indeed, it is hard
to see how the Electoral College system can pass muster
with this new "equal protection" doctrine. Clearly
voters in California count for less than voters in Wyoming.
According to Alan Brinkley in Slate, the Supreme
Court could as easily have argued that voters who messed
up their ballots in "Palm Beach County were denied
equal protection; other Florida voters had clear and lucid
ballots, and they did not. One could argue that the overseas
military personnel who cast absentee ballots at military
post offices that did not provide postmarks were denied
equal protection when their votes were not counted; that
Bush voters who did not vote on Election Day because the
networks called Florida for Gore before the polls closed
were denied equal protection."
all goes to show that in this mad scramble for power everybody
is jettisoning principles for the sake of getting their
man into the White House. The conservative justices on the
US Supreme Court endorse a doctrine of "equal protection"
of extraordinary breadth and scope. The Florida Supreme
Court, which in September had struck down an amendment to
the state constitution, supported by 73 percent of the voters,
designed to curb the Court’s power to prevent executions,
has suddenly become a tribune of the people. (In its ruling,
the Court had argued that the voters had been confused by
the ballot language.) The New York Times, which is
usually shrieking for Feds to strike down some local law
or custom or court ruling, is now demanding that the US
Supreme Court stay the hell out of internal Florida affairs.
Bush won this election because the US Supreme Court secured
it for him. Can one imagine the Supreme Court ruling the
way it did on Tuesday had the situation been reversed, and
it was George W. who was calling for a manual recount and
Al Gore who was demanding an end to the recounts? Can one
imagine the Florida Supreme Court ruling the way it did
had it been Bush seeking a recount and Gore demanding that
the Secretary of State’s certification be final?
divided elite does not mean that the United States will
not be throwing its weight around. To the contrary. This
split can only be concealed by foreign adventures. President-elect
George W. hinted as much in his acceptance speech: "Together
we’ll have a bipartisan foreign policy true to our values
and true to our friends, and we will have a military equal
to every challenge and superior to every adversary."
The Congressional Democrats will do everything in their
power to embarrass Bush, ready themselves for taking over
Capitol Hill in 2002 and then impeaching him. In the meantime,
Gore will be waiting in the wings as the "People’s
President." Bush’s longed-for "unity" will
only come when the bombs start flying.
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Sunnyvale, CA 94086
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