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December 6, 2000
Electoral 'Legitimacy'

By Robert Parry

New York Times columnist Thomas L. Friedman spoke for America’s pundit class when he found solace in judicial rulings that dashed – or at least significantly diminished – hopes for counting of 10,750 disputed ballots from Florida’s Dade County.

“Slowly but surely, in their own ways, the different courts seem to be building a foundation of legitimacy for Gov. George W. Bush’s narrow victory,” Friedman wrote. “That is hugely important. Our democracy has taken a hit here, and both Democrats and Republicans must think about how they can start shoring it up.” [NYT, Dec. 5 2000].

To Friedman and other pundits, “building a foundation of legitimacy” seems to have taken on a greater importance than legitimacy itself. The court rulings that so impressed Friedman involved decisions that have prevented the hand-counting of ballots, many apparently cast by African-Americans and retired Jews living in poorer precincts served by inferior voting machines.

Newspaper studies, published in both The New York Times and The Washington Post, concluded that predominantly black precincts suffered higher than normal rates of so-called under-votes -- ballots without a choice for the presidency that could be read by a machine -- when compared to affluent Florida precincts with modern equipment.

One of Texas Gov. George W. Bush’s expert witnesses, John Ahmann, conceded – when confronted with his own past writings – that the aging Votomatic machines used in poorer precincts were prone to failure in registering votes.

“Incompletely punched cards can cause serious errors to occur in data-processing operations utilizing such cards,” Ahmann wrote in a patent application for an improved version of the machine. Ahmann was forced to agree that manual recounts were necessary to correct these errors. [NYT, Dec. 4, 2000]

Still, the two court rulings on Monday that so impressed Friedman made manual recounts far less likely. The two rulings also circumscribed the legal space for the Florida Supreme Court when it hears Vice President Al Gore’s last-ditch appeal on Thursday.

The first of those two court cases was handed down by the U.S. Supreme Court on Monday morning.  On a rare expedited basis, the high court had accepted the case from Bush seeking to throw out hundreds of votes for Gore that had been discovered in a recount in Broward County.

Oral arguments revealed that the court’s Republican majority sympathized with Bush’s position that the Florida Supreme Court had erred in citing the state constitution and the broader principle that the right to vote was more important than legal technicalities.

While Chief Justice William Rehnquist appeared to be in a position to push through a pro-Bush ruling with a narrow majority, he apparently opted for a compromise that won over all nine justices. The court chose to vacate the Florida Supreme Court’s ruling with a request for clarification of the state court’s justification for extending a certification deadline that had allowed recounts to continue.

Effectively, the U.S. Supreme Court was signaling that the state court could not cite constitutional provisions regarding a citizen’s right to vote and must confine its reasoning to narrow statutory interpretations. The Florida Supreme Court had argued that the right to vote – and to have that vote counted – should take precedence over technical deadlines.

In the second court ruling on Monday, Circuit Judge N. Sanders Sauls denied Gore’s lawsuit seeking to require completion of Dade County’s aborted recount – that had ended on Nov. 22 as paid Republican demonstrators were pounding on the walls and as the three-member canvassing board appeared swayed by the special pressures of Miami politics.

Sauls refused even to look at the ballots in question, a judgment that is providing a basis for Gore’s appeal back to the Florida Supreme Court.

Beyond the rulings by the U.S. Supreme Court and by Judge Sauls, the Florida Supreme Court is additionally boxed in by the Republican-controlled state legislature – whose leaders have vowed to certify a Bush victory even if a court-ordered recount shows Gore the winner – and by Secretary of State Katherine Harris, Bush’s state campaign co-chair who certified Bush the winner even as she refused to count late-arriving Gore votes from Palm Beach County.

Other Bush backstops include the Republican-controlled U.S. House of Representatives and Bush’s brother, Jeb, Florida’s governor.

The Florida Supreme Court justices must know that if they rule for Gore and allow the hand counting of the disputed ballots, they will face a political firestorm. They will be denounced as Democratic partisans and possibly have to deal with the kinds of pressures that the county canvassing boards faced in South Florida. 

Given all these pressures and constraints, the Florida Supreme Court might well decide that political discretion is the better part of judicial valor. By simply ratifying Judge Sauls’s ruling to let the ballots be tossed out, the state justices could assure themselves an enthusiastic commendation from the nation’s political and journalistic establishments.

The pundits then could agree that the foundation of Gov. Bush’s legitimacy was indeed strong.

In his column on Tuesday, Friedman also expressed hope that Bush could become known as the “democracy president” inspiring commitment to democratic principles at home and abroad.

It apparently never crossed Friedman’s mind that if George W. Bush wished to be the “democracy president,” he might want to start now by ensuring that the votes of African-Americans and Jewish senior citizens be counted, even if those votes help elect Bush’s opponent.

The heart of the democratic process is not to throw out the votes of people who may disagree with you – especially when those votes come from groups that have faced historic discrimination. It is not to use legal tricks and obstructionist tactics.

It is certainly not to hire demonstrators to intimidate voting officials and then thank the rioters later, as Bush did. [See the Wall Street Journal, Nov. 27, 2000.] Nor is it to take office although a plurality of voters nationwide and in the crucial state of Florida clearly went to the polls to vote for the other candidate.

The essence of democracy is to want as full and complete a vote tally as possible whatever its results, even if the other candidate wins.

In a democratic society, the foundation of legitimacy is not built by men in black robes, nor is it ratified by columnists who value the institutions of democracy more than the reality of democracy.

The legitimacy of democracy rests solely upon the consent of the governed – and the only way to determine that consent is to count the votes.

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