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Credit: The Wizard of Whimsy

Shame, Partisanship,
and Cowardice

A New York Slime Editorial

One hundred and fifty-three years ago next March, the Supreme Court of the United States of America shamed itself by declaring through its then Chief Justice and former slave owner Roger B. Taney [right], that "no slave or descendant of a slave could be a U.S. citizen, or ever had been a U.S. citizen." As a non-citizen, the court stated, "Dred Scott had no rights and could not sue in a Federal Court and must remain a slave."

Catch-22 Rulings Joseph
Heller Would Have Been Proud

Yesterday, in a meandering and often contradictory Catch-22 ruling which rivaled the infamous "Dred Scott" decision of 1857, a bitterly divided Supreme Court voted 5 to 4 [ click here to read the full decision in Adobe Acrobat ] to invalidate manually recounted votes in the State of Florida based on the purported failure of the Florida Supreme Court to apply "uniform standards" to determine what constitutes a valid and legal vote.

"The individual citizen has no federal constitutional right to vote for electors for the President of the United States."

Said the majority: "When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." The ruling effectively annoints George W. Bush the 43rd President of the United States. The Court also took care to remind the American people that "The individual citizen has no federal constitutional right to vote for electors for the President of the United States . . ."

While remanding the case back to the Florida Supreme Court and vaguely suggesting a procedure to correct the problem, the Court majority slamed the door shut in the same breath by adding that the deadline to do so was 11:59pm on December 12th, two hours after issuing their ruling.

Vice President Gore was also doomed by another clever Catch-22 trap: Had the Florida Supreme Court set a uniform standard for manual recounting, the U.S. Supreme Court would likely have struck it down because the court had upsurped the State Legislature by "creating a new law." But by not doing so, the Florida Supreme Court ruling was struck down any way on grounds there was a "violation of the equal protection clause" because there was no uniform standard!

Fleeing out the Back Door
Even more startling was how the Court majority finally released its ruling. Despite this arguably being the most important ruling since "Brown versus Board of Education" in 1954, the 65 page document was released unsigned and without being read or explained. Press reports indicated that the justices left the court through the rear garage entrance before court clerks brought out the ruling to a huge mob of anxiously waiting reporters.

"Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Dissenting Justice John Paul Stevens

Despite the seriousness of the occasion, the efforts by scrambling journalists and legal pundits to interpet the calculatingly confusing majority ruling provided the only laughs for the night. After some commentators initially thought Gore still had a shot at a recount, they found that the "fine print" cynically provided no opportunity for the Florida Courts to remedy the high courts concerns.

Democracy is the Big Loser
Speaking for the Court minority, Justice John Paul Stevens said the court's action "can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

Ten reasons why the Supreme Court majority was more concerned with politics than the law:

Prior to this ruling, Judge Scalia couldn't even spell "equal protection," much less employ it in a court ruling. In point of fact, this was the first time he had ever voted for a ruling based on a violation of the equal protection clause.
They halted the recounts citing 'irreparable damage' when it became clear that Gore was gaining votes, thereby sealing Gore's fate before even hearing arguments.
They specifically stated in their ruling that their findings should not be applied to any other circumstances, suggesting that equal protection issues only apply to recounts which adversely effect Republicans running for president.
They cynically suggested a remedy and then shut the door by declaring that the deadline for recounts was December 12th, when in fact the true constitutional deadline is December 18th.
Renquist and O'Connor have both publicly stated that they wish to retire for health reasons once there is a Republican president in office.
Clarence Thomas's wife was offered a position in the Bush White House months ago.
They left the Court by the rear garage entrance without reading from or explaining their ruling.
The ruling remained unsigned.
They accused the Florida Supreme Court of making new laws instead of interpreting the current laws, while doing the very same thing themselves.
O'Connor, Renquist, and Scalia completely abandoned their long cultivated and pathologically rigid "states rights" stance on major issues, and overruled a state court on a matter of state law interpretation.

So, after 35 days of futility, the struggle to fairly and accurately count the votes in Florida has ended. The country which gave us a man on the moon and the personal computer has demonstrated to the entire world that it is both unwilling and unable to count antiquated cardboard ballots in the most important electoral race on the planet.

The Full Supreme Court Decision in Adobe Acrobat Format

Let's Place Electoral Reform
on the National Agenda

If there is a bright side to all of this, and the expectation that we will be innaugurating a president who seems unaware that social security is a federal program, it rests with the likelihood that true electoral reform will now be placed on the national agenda. Similarly, even Frederick Douglass was able to find a bright side in speaking of the "Dred Scott" decision: "My hopes were never brighter than now, for this will bring slavery to the attention of the entire nation and be a step toward slavery's ultimate destruction."

The Supreme Court's bluff should be called, and the hypocrisy of the Republican Party should be exposed as it pertains to concerns over equal protection issues and the right to vote, and to have those vote counted. We need a national standard for voting which is fair, accurate, uniform, and free from racial, class, and regional biases.

Bringing Back the Old South?
Most disturbing are charges that the Republicans, led by Governor Jeb Bush and Secretary of State Katherine Harris, organized a campaign to reduce and impede minority voter turnout. As reported in Salon Magazine, Harris commissioned a Texas company to remove felons from the voter lists, and in the process knocked off thousands of voters (mainly African Americans) improperly for having only misdemeanor infractions on their records.

Voting irregularities were also much higher in African American voting districts, which routinely get the oldest voting machines and paper balloting systems prone to extremely high vote rejection rates (as high as 7%). The NAACP also reported that in some counties, blacks on the way to vote were routinely stopped by police near polling sites.

We call for an end, not just in Florida but nationwide, to cheap and inaccurate punch card balloting and their pregnant chads and dimples, and also elimination of penciled in check box ballots. (In New York, for example, although its voting machines are old, a recount for the entire state can be accomplished in a day, and without manual counting. It is also impossible to vote for two people for the same office.)

Direct Election of the President by the Popular Vote
The law must also be changed to allow the direct election of our president by the popular vote, although the requirements for change here are daunting—approval by two thirds of the 50 states. Here we would recommend a compromise, and strip the state legislatures of the power to arbitrarily appoint electors and require that they be assigned automatically according to the popular vote winners.

Having a parlimentary system of proportional representation is also something we need to begin a national dialogue on. Our biggest disappointment with the Green Party during this election was their failure to make this a major campaign issue. Under the current formula, big money will continue to dominate national politics no matter who's in office, and there is no incentive or benefit in building alternative or constituency based political parties. Quite the contrary, Nader's campaign helped put Bush in the White House, which can hardly be expected to raise people's faith in the ability to "fight the power" or find reasonable alternatives to the Democrats and Republicans.

Finally, our country also needs real and substantial campaign finance reform. Never before in history have corporations exerted so much power and influence over politics, government, and the major media. As we have just seen, even the Supreme Court of the nation is not immune to partisan and corporate influence. How to accomplish this is surely a can of worms, but a can that must be opened sooner or later nonetheless.

E-Mail Letters to the Editor

The Palm Beach County "Butterfly" Ballot

Related Links

Washington State Escapes Ballot Problems

What could go wrong at a polling place?

More Florida Ballots Disqualified

Confessions of a Florida Poll Worker

Florida Officials to Count by Hand

Florida Officials Clarify Duplicate Mailings

Experts say punch-card ballot counters often inaccurate



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