Vox Populi
A Letter to the Editor

... And a Pox on the Courthouse too!
Friday, December 15, 2000

(Round 1 of this Vox Populi -- read round 2)

During the Framing of the Constitution, individual States were very concerned about maintaining their sovereignty. If you remember your American History well: before we had the Constitution, our Country was a confederation of states which was very loosely tied together by a national governing body- the heir to the old Continental Congress of Revolutionary War times generally known as the "Confederation Congress". The emphasis here is on the word "loosely"- because each State had its own currency, policies, etc.

Without a true central government, it was very difficult for us, as a nation, to negotiate with other countries. The purpose of the Constitutional Convention of 1787 was to modify the existing government so that the confederated States- now a bona fide federation- could speak with a more unified voice. The Constitution which was put forth by our Founding Fathers turned out to be a far cry from what everybody had expected: yes, it addressed the issue I speak of here, but it also had the potential to strip away state sovereignty. Many arguments resulted from the proposed Constitution- arguments which gave rise to the issue of "State's Rights". In fact, so important was the concept of State's Rights that the 10th Amendment- the so-called "Police Power" Clause- was added as part of the Bill of Rights (itself the price of ratification of the original document) to ensure that the States could govern on matters for which Congress had not the power or authority to write laws.

But State's Rights was also crucial in the formation of another part of our Constitution: the Electoral College. Again, it is important to remember that States were trying to retain their sovereignty and the duty of the President was not merely to represent the will of the People, but also to represent that of the States. This is one reason why the Electoral College is that which actually elects the President and not the Popular Vote. Why is this important? Because the 25 Electoral Votes which the U.S. Supreme Court had the ability to control in the case of Bush v. Gore brought before it belonged to the State of Florida. They are not owned by the Federal Government- nor are they owned by the People of Florida: they are owned by the State of Florida.

Florida, as does every other State in the Union, has decided that the people of the State can voice their opinion and, through casting their votes, "appoint" that State's Electors. Now, something happened during the casting of those ballots which resulted in some question as to how some votes should be interpreted. I am not going to comment as to the validity or invalidity of any of the lawsuits which were brought forth, but I would like to emphasize again at this point that the outcome of these lawsuits would, of course, determine how Florida's votes were cast.

The U.S. Supreme Court, however, is NOT part of the Legal System of the State of Florida. It would seem, then, that the Supreme Court has sided against our Founding Fathers and has further decided that the casting of Electoral Votes is no longer a State issue. Had there been an FEC violation, I might agree that the Supreme Court could intervene, as then it would be a Federal issue. However, I have yet to see anybody make the argument that this is the case. In fact, the statement from the Court was that they did not feel a recount could be done fairly in the amount of time remaining for Florida to pick Electors.

But the U.S. Supreme Court didn't delegate the choosing of Electors to the People of Florida, the State did. Isn't it more appropriate for the entity which granted that power to the People of that State to decide what is fair? What the Federal Supreme Court did simply flies in the face of State's Rights. What may be worse is that the way Judicial Review has come to work, there is no means of "checks and balances" to contest their decision.

However, there are even more suspicious circumstances behind this decision. Anybody who has been keeping tabs on how this latest Presidential Election will affect the Supreme Court knows that our next President will, most likely, get to pick anywhere from two to four Justices of that Court. In fact, a few of those Justices have intentionally held off from resigning to prevent a Democratic President (namely Bill Clinton) from appointing their replacements. They were operating under the hopes that Bush would win the Presidency so their successors will be more in line with the platform and policies of the Republican Party. You can well imagine that when they found out they now had the opportunity to influence the deciding 25 Electoral votes, it came to them wrapped like a Christmas present.

In fact, it seems quite odd that the Court made a decision saying that Florida didn't have enough time to count the ballots fairly when they are the very ones responsible for stopping the count and then taking a weekend plus two days to make a ruling. I find it amazing that that the Nation hasn't gawked at the travesty committed here. As mentioned above, the Supreme Court's power in this instance derives from a check and balance called Judicial Review; however, the point of checks and balances is to make sure that no one branch abuses their power. NEVER were those powers intended to be used as means to allow them to pick WHO gets into power: yet, this is effectively what the Court has done.

You can even take this issue one step further and compare it to an injustice committed by Franklin Delano Roosevelt. During the end of the New Deal period, early in his second term, FDR tried to expand the size of the court to 13 justices, the idea being that he would get to pick the four new Justices (one for each Justice over the age of 70) and "pack the Court" with people who would follow his ideals. Fortunately, Congress stopped him in his tracks and slapped him on the wrist. But looking at today, the current Court is composed of mainly Republican appointees. Again, going back to the point that at least two Justices will be leaving during the next presidential term, the current Court has effectively "one-upped" FDR. Not only are they trying to pack the court by making sure that the next replacements are also Republican appointees, but they will also get away with it- presumably without punishment.

Now that I have had my chance to rant, I'm sure that some people might take my comments as having come from a disgruntled Gore supporter. I would like to counter that by noting that I never believed that even the Florida courts would stick their hands in this mess. Traditionally, the courts try to stay out of such matters. It is difficult for me to say whether or not the Florida Supreme Court made a good decision as I did not follow that case closely enough to make an educated opinion. However, at the very least, the Florida Supreme Court is part of the Legal System of the State of Florida so they weren't tinkering with a State's Rights issue. From that point on, anything you accuse the Florida Supreme Court of wrongfully doing you have to then extend to the Federal Supreme Court.

Finally, I will note that the Florida Legislature does have the authority to appoint Electors in the event of a contested election. I have no problem admitting that, by appointing Bush electors under the circumstances that they did, that the Legislature was not acting illegally or violating any constitutional principles. My point here is that I am not trying to contest the Bush election, but rather chastise the Supreme Court (or at least the majority of its Justices) for using very poor judgment and abusing their power.

David Jones

Richard E. Berg-Andersson responds:

Thank you for your comments which seem to dovetail so well with my 13 December Commentary "OUT OF DIVISION, DECISION". I myself would like to expand upon one of your core ideas and, in the course of doing so, respectfully disagree with a few of your comments in your piece above:

First, to expand upon that core idea- that what the U.S. Supreme Court engaged in was- besides "very poor judgment"- "abusing their power". The point which was the focus of my 13 December Commentary was that ANY authoritative decision at ANY level in this case (as it would be in any intractable political/legal situation) was, by definition, something of a blow to the theory of self-government in any event: on the one hand, it would be liable to be called an abuse of power (such as that you ascribe to the U.S. Supreme Court) because whoever had the final say would not- as you so well point out in the case of the U.S. Supreme Court- at all be checked and balanced (one presumes that, had the Florida Supreme Court had the final word, this would only have been because the U.S. Supreme Court would not have found reasons to get involved themselves and that, had the Florida Legislature picked Bush Electors on their own, Congress clearly would have, if only because of the Political Party lineup in the new 107th Congress, acquiesced: thus, these differing State decisions- had either of them, in the end, been definitive- would not have been checked any more than the U.S. Supreme Court itself could be); it is precisely such failure to check and balance that is the firm indication, if not final proof, that the 2000 Election could not help but be "unfair" once we got past the tallying of the automatic recount on 9 November and the failure of such recount to convince one of the candidates to concede or the other to agree to manual recounts- no matter which major Party candidate won (thus, neither side had any real basis- other than for purposes of advancing partisan rhetoric [i.e., more or less "preaching to the choir"]- on which to call the other side any more unfair than they themselves were acting; there was more than enough blame to go around in this particular dispute).

The flip side of this coin, however, is that there- eventually (if this Nation were ever to achieve any sense of finality [however bitter the taste of it])- would have to be some definitive body (whether a court- State [i.e., the Florida Supreme Court] or Federal [i.e., the U.S. Supreme Court]- or a legislature [whether the Florida Legislature or Congress itself]) stepping in and "bringing the hammer down"- BIG time- on the ultimate loser (which turned out to be Vice President Gore): there was simply no other way to settle this election dispute! Elections in which the ordinary citizen participates as a voter are meant to be decided by merely crunching the numbers- mathematically determining who had more votes than the other guy; they were never meant to be decided by either a court or a legislature. Yet only a court or legislature would, like it or not, have the ability to make that "authoritarian imposition" Robert A. Burt- from whom I quoted in my 13 December Commentary- spoke of: an imposition which would finally bring an end to the controversy. When one candidate says "I have more votes than you" and the other candidate says "No, I have more votes than YOU!", we can't possibly- in a free election- let the supporters of one candidate decide the issue to the detriment of the other candidate; what I early on referred to as a "truly botched" election was only capable of resolution- a hard, forceful resolution, to be sure!- by court or legislature: it just so happened it was a court- and the highest Federal court at that!- that held that hammer of finality.

I fully understand- and, in large part, share- your position that the "abuse of power" you are decrying above is this very Federal court having stepped on the prerogatives of the State of Florida. At the same time, however, it must be recognized that when the Florida Supreme Court decided to extend the deadline for county canvassing boards to send the State their amended certifications by 12 days (that court's attempt at a final "authoritative imposition"- as it would have been had the U.S. Supreme Court not stepped in), it could be said that they- too- abused their power (though I myself do not agree: see my 24 November Commentary- "IN DEFENSE OF THE COURTS"). The singular irony of this whole episode is that- putting aside the issue of Federal Supremacy versus State's Rights you have brought up- the particular Legal Method employed and its relation to Judicial Review in general was pretty much the same in the decisions of both the Florida AND United States Supreme Courts: the Bush team made basically the same claim of abuse of power you have made above (though, obviously, their reasons for making such a claim differed from yours), only against the Florida Supreme Court rather than the Federal Supreme Court, as you did- yet it was a similar abuse of power to that they denounced that ultimately won them their case in the U.S. Supreme Court; the Gore side has roundly scored the U.S. Supreme Court (however much they and their candidate have accepted it) but has spared the Florida Supreme Court the same reprobation.

But if the Florida Supreme Court- in its 21 November ruling- overreached in its having interpreted (the Bush side would- and, in fact, did- say "reinterpreted and rewritten") the Florida election laws as they stood on 7 November, the U.S. Supreme Court did no less in its 12 December application of the Equal Protection Clause to those very same statutes (note that this higher Court never said 'no hand recounts per se', only that the standards used in such recounts must pass constitutional muster and that they also accepted the idea that the Florida Judiciary was trying to wrap things up by 12 December and had simply failed to do so; the U.S. Supreme Court, thus, extended the deadlines found in Florida election law no less than the Florida Supreme Court had!): if the U.S. Supreme Court was wrong, then the Florida Supreme Court had also been wrong; if the Florida Supreme Court was correct to have allowed recounts after the statutory deadline for certification, the U.S. Supreme Court was correct in its application of the 14th Amendment to those same recounts. Whichever side of the issue one is on- Bush's or Gore's- one surely cannot have it both ways! You yourself have so well pointed this out when you wrote "...anything you accuse the Florida Supreme Court of wrongfully doing you have to then extend to the Federal Supreme Court".

I also understand that you are not taking sides here- that your criticism of the U.S. Supreme Court is based on your sense that this highest Federal Court unreasonably took over a process which should have been left to Florida's own devices; you don't appear in your comments to have very much cared just which organ of Florida government ultimately made Burt's "authoritarian imposition" which ended the election debacle- your point being that either the Florida Supreme Court or the Florida Legislature were just as much part of the State's political and legal apparatus as the other. In addition, you noted above that you "have no problem admitting that, by appointing Bush electors under the circumstances that they did, that the Legislature was not acting illegally or violating any constitutional principles".

I, however, am not so sure. Besides the rather questionable reasons the Republican leadership in the Florida House of Representatives themselves gave the public for contemplating doing so (which I have already addressed in my 13 December Commentary), there is the legal aspect of the problem (what you have described as "constitutional principles"- a legitimate term, as Chapter 1 of Title 3 of the United States Code [which consists of Sections 1 through 21] simply fills out the electoral scheme outlined in Article II, Section 1 of the U.S. Constitution- as subsequently amended, of course). The issue is in the wording of 3 U.S.C. 2: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct"; the problem is: did Florida, in fact, "fail to make a choice" on 7 November? If the election was still being legally contested (as it- indeed- was until the U.S. Supreme Court ruled it could no longer practically be), there were still votes from 7 November to be subject to potential recount- but this was hardly a "failure to make a choice": the "choice" made by the votes cast "on the day prescribed by law" simply had not yet finally been determined by the time the Florida Legislature took it upon itself to act; thus, I myself had to question the legality of this move by the Florida Legislature.

Finally, there is another way in which the U.S. Supreme Court abused its power which you did not address, as you were concentrating on the State's Rights aspect of the problem, and that is the Federal Separation of Powers problem (the horizontal, as opposed to the vertical, aspect). Title 3, Chapter 1 of the United States Code makes it abundantly clear that the ultimate arbiter of disputes over Electoral Votes is Congress, not the Supreme Court. When Congress is presented- come the tabulation Joint Session in early January- with Electoral Votes "not regularly cast" or two sets of Electoral Votes, it alone decides the issue once and for all; that is, it is solely Congress' prerogative- under Federal law- to make Burt's "authoritative disposition". If Florida HAD presented two sets of Electoral Votes (which would have happened- assuming Gore would have won a constitutional recount [that is, one that could pass 14th Amendment muster], which I [for reasons which will be addressed in a future Commentary] sincerely doubt- had your own scenario [i.e., leaving it to the State of Florida to sort it all out] been allowed to play itself out without U.S. Supreme Court interference), Congress would have exercised the provisions of 3 U.S.C. 15 and, in the end, Bush and Cheney still would have been elected President and Vice President (because the political lineup in the new Congress would not favor Gore).

By letting the reasoning behind their ruling get so intertwined with the Florida Supreme Court's own obsession with the 12 December deadline for uncontested Elector slates (per 3 U.S.C. 5), the U.S. Supreme Court short-circuited the very process outlined by Federal law (and this even more highlights my argument that the U.S. Supreme Court could be seen to have "rewritten" the law as much- if not more than- the Florida Supreme Court may or may not have on 21 November). How many times did we hear that, if Electors were not certified by Florida by 12 December, Florida would not have been able to have its Electoral Vote counted by Congress in January when this was patently false? (And, by the way, this was yet another bogus argument used by the overzealous partisans of Florida's lower house to attempt to mitigate their own disrespect of at least one possible outcome of a then-still legal election contest). All the 12 December date meant was that, after that date, Congress would take over the conclusive determination of "whose the legal Electors" from the State; it is like when the first pitch is thrown in a baseball game: up until that point, when the weather is inclement, the home team gets to decide if and when the game should be delayed or even postponed; after the umpire points to the home pitcher and- with a visiting player at the plate- calls "Play!", the umpires on the field take over such determination. The 12 December so-called "drop dead" or "safe harbor" date was no more significant than that!

By allowing themselves to get so involved in the process then ongoing in Florida, the U.S. Supreme Court abused its power by taking the final decision away from the very body in which Federal law had vested it- Congress: that is, of course, the picture from the standpoint of legality. Yet, of the two institutions- Congress or the U.S. Supreme Court- which was the more highly respected, at least prior to the 12 December ruling? Clearly, "Congress" is NOT the answer to this question! Again, as a practical- as opposed to a legal- matter, we must come back to what I myself addressed in my 13 December Commentary as well as above in this very response- the fact that some "authoritarian imposition" had to be made by a court or legislature in order to finally determine the outcome of the 2000 Presidential Election. The U.S. Supreme Court took it upon itself- as, earlier, the Florida Supreme Court had done and the Florida Legislature had begun to do- to be, if necessary, the final arbiter that Congress, ultimately, had the legal right to be. Events had transpired to force Vice President Gore to concede and so the 107th Congress will now never have to exercise its due jurisdiction and act on this question; it remains to be seen if the U.S. Supreme Court has tarnished its image- at least somewhat- through its actions of 9-12 December.

Yes, for BOTH reasons- that of State's Rights AND Federal Separation of Powers- the Federal Supreme Court abused its power; yet, at the same time, the Court- as I wrote on 13 December- did us all a favor by forcing us to avoid what I saw as a greater abuse, the Florida Legislature invoking 3 U.S.C. 2 in the middle of an election contest (which is somewhat different from a "contested election"). Regardless of just how much the high Court has abused its authority, SOMEone had to make the final call and- no matter the "someone"- it was no more nor no less "anti-democratic" and/or "authoritarian" than any other political or legal entity's final call in this whole matter. This "truly botched election" did not leave us with any real good alternatives.

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