Vox Populi
A Letter to the Editor

I believe you missed the truth and swallowed the GOP spin...
Saturday, January 27, 2001

Mr. Berg-Andersson,

Thanks to TheGreenPapers.com for putting the page up on your site re: Florida General Election Statutes. Nicely done. I wish someone would keep not just the statutes on line in the way you have done but also the various court transcripts and pleadings. Most sites have already taken them off the web.

I have used your page a number of times to show people that the Florida election laws did not -- repeat, did not -- require machine breakage or acts of God or flood or fraud in order to have a hand recount. It's just amazing how many well-intentioned, and otherwise intelligent, people bought the GOP spin that to have a hand recount you had to have fraud or machine breakage. For example, Bill O'Reilly of FOXNews repeated that falsehood so many times, people just thought he knew what he was talking about. He didn't.

As your site noted, here is how a full manual recount was to be determined in Florida:

"(4)(a) Any candidate....may file a written request with the county canvassing board for a manual recount...

(c) The county canvassing board may authorize a manual recount...

(5) If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall:...

(c) Manually recount all ballots."

You should have put one of your editorial comments below this line, and explained "Notice how the manual recount indicates an error in the vote tabulation. Notice how there is no language or implication of a machine breakage, fraud, act of God, etc." The one and ONLY thing which determines a full recount is if the first manual recount indicates an error.

That was the well-understood law at the time. It was pure GOP spin to claim otherwise. It wasn't some little tidbit of legal technicality: this was the basic election law- and everyone connected to elections knew it. Certainly Ms. Harris knew it.

I was and am a Bush supporter. It was important to me that Bush get in. But I can recognize hypocrisy when I see it, and I, unlike most of those who support Bush, can think without taking cues from the GOP spin machine.

Now, when did that hand recount law- which everyone knew about, which was on the books for years, which was implemented in other elections-- become the evil, vile, horribly unconstitutional thing the GOP later would claim? Well, it was fine on Election Day, it was fine before the election, it was fine the other times it was used, it was fine when the GOP Legislature reviewed the law a year earlier, it was fine when another GOP Legislature reviewed it before that. Ms. Harris and the whole Division of Elections were well aware of that law. And never, not once, did they ever say " 'boo' to the cat" about it!

It only became this horribly and obviously bad thing when the law looked like it might actually work to count the votes of a political opponent. Actually, it became a horrible law about ten seconds after Ms. Harris talked to the Bush legal and political team. But more than that, your page could have exposed the rather odd little inconsistency of the GOP position.

You must recall how the GOP complained the the Florida Supreme Court "changed the law after the election", and YOU CAN'T CHANGE A LAW AFTER THE ELECTION.... Remember that? No other complaint was ever leveled that I know of against the Florida Supreme Court on this point, just that they can't change the election law after the election. Bush screamed bloody murder to that effect- the GOP lawyers did too and so did the U.S. Supreme Court.

Well, long before the Florida Supreme Court said word one about a deadline, GWB went into FEDERAL court on November 11 to change the law to suit him. His campaign asked the Federal Court to stop the hand recount law from being used. Bush failed in this effort- the Federal court wisely said "no, you cant do that"- but Bush pushed it all he could and tried very very hard to change a law after the election.

Most people who just followed all this on TV missed it because Federal court actions weren't covered much. Just the state court actions and U.S. Supreme Court was seen on TV. Sure, the Federal court action was talked about and written about: no secret at all. It's just that most people got their entire intake from TV and the GOP spin machine. These folks usually didn't have a clue that Bush ever went into Federal Court at all.

Now, naturally, most Bush supporters cant see the hypocrisy, the human mind being what it is. They reply, "Hey, that law Bush was trying to change was unconstitutional!"

Well, maybe so. Maybe not. That's not the point. You can't change the law after the election, remember? The Florida Supreme Court got slapped for trying to reconcile two conflicting points in the law -- the deadline, and the right to have a hand recount. "Too bad, so sad", the GOP said, "you can't change it now- the election is over". But the GOP wanted to change the hand recount law by throwing it out ENTIRELY. Gore never asked any statute be thrown out at all. He asked for a conflicting statue to be reviewed and interpreted.

Mark Curran

Mr. Berg-Andersson responds:

Well... first of all, as to whether TheGreenPapers.com "swallowed the GOP 'spin'", I most strongly disagree with Mr. Curran. I can only speak for myself, of course, but- in my Commentaries and any research-based notes posted on the site (and- yes- I was largely responsible for the "editorial explanations" posted underneath certain Florida statutes: simply, an attempt to clarify the issues which appeared to be in play in relation to those statutes at the time we posted them)- I have always tried my best to basically "call 'em as I see 'em". Although I, naturally, would watch the "dueling press conferences" of Messrs. Baker and Christopher- the respective spokesmen for the two contending candidates- and, later, Messrs. Boies and Richards- the respective lead attorneys for their campaigns, I did not let ANYone's "spin" affect what I wrote about the Florida election debacle- whether in one of my Commentaries or otherwise!

Over the nearly year and a half TheGreenPapers.com has been online, I have received more than a few angry emails claiming I was favoring one side or the other in something or other I had written for the site (and, as you might suspect, a lot of these were, in fact, received in the heat of the Florida election debacle): yet I have never purposely shirked my responsibility to refer to something I think is silly (regardless of which candidate was acting so) as "silly", something I thought was stupid as "stupid" and, more importantly, something I thought was just plain wrong "just plain wrong" IF I felt the topic worthy of discussion on our website (and- no- I didn't write about EVERYthing I COULD have written about; time constraints forced me to "pick my spots" throughout the primary/caucus process, the Conventions, the Fall campaign and the aftermath of Election 2000 in Florida-- time constraints force me to "pick my spots" even now!). E-mails to me claiming (roughly equally in thirds) that the e-mailer "just knew for a fact" that I "definitely" was a "Bush supporter" or a "Gore supporter" or "supporter of neither Bush nor Gore" surely suggest to me that I was relatively- though, I am certain, not entirely- successful!

Let me also note- if only in our defense- that those Florida statutes, along with the editorial explanations (as originally posted on TheGreenPapers.com), were placed on the website fairly early in the game- before we could know just how these statutes would be parsed by lawyers for each side in their respective legal maneuverings over the course of the emerging Florida controversy. As a result, we did not cover- in the explanatory notes- every single aspect of those Florida election laws (we were trying- in these notes- to give the reader a "plain English" version- as best we could- of some of the more legalistic portions of the text of the statutes; we assumed early on- and, perhaps, we were wrong to have done so- that, as the Florida drama played itself out, we could much better tackle explaining the legal issues raised by those Florida statutes in what became the "red zone" ["breaking news" items in red type] directly under the "The Green Papers" masthead on the home page during the entire Florida election mess). The whole debate (political, as well as legal) over the working of these statutes solely in relation to "machine breakage, fraud, act of God, etc." occurred well after these statutes (and their accompanying explanatory notes) had already been posted on the site.

Turning now to the main thrust of Mr. Curran's "vox Populi": I DO agree with him that the hand counts in Florida, counted the way they were counted and handled the way they were handled, were perfectly acceptable under Florida election law as it existed at the time. For example, in my 22 November Commentary entitled "A POX ON BOTH YOUR HOUSES!!!", I wrote the following: "Nevertheless, like it or not, the manual recounts are permitted under Florida law: each candidate or the State political party they represented had the right to ask for them in any county in the State. The Gore camp asked for such recounts in heavily Democratic counties, the Bush camp did not (whether this was because of the reason the GOP lately gives- that the Republican Party does not believe in hand counting of the ballots over machine counting [even in the face of a machine re-count knocking Bush's original raw tally margin down in Florida by 82 percent] or, as is the more likely reason, a combination of sheer arrogance and abject idiocy by Bush people 'on the ground' in Florida [I still believe- as stated in a previous Commentary- that the Bush camp, still heady with apparent victory, was not mentally prepared for that 82 percent washout], I know not)."

In addition, in my 24 November Commentary entitled "IN DEFENSE OF THE COURTS", I wrote the following: "It is sheer hypocrisy for a Bush supporter to, on the one hand, consider any attempt to somehow review what voters who 'voted wrong' say their votes would have been as a violation of the notion that 'we are a Republic, not a Democracy' the Framers, so they say, intended but then, on the other hand, turn around and suggest that somehow it was unfair for the Texas Governor not to be given the same opportunity for manual recounts in GOP-dominated counties on grounds that the Democrats somehow 'twisted the law' in getting such manual recounts in counties favoring their Party... Moreover, if you are going to live by the letter of the law, you surely are required to die by it!! If you voted the 'wrong' way in Palm Beach County, that is your fault: there is no legal nor constitutional method- despite the feelings of those who, perhaps legitimately, feel terrible about the manner in which their vote was cast and, thus, counted- to reverse the vote returns that resulted back on 7 November; likewise, if Governor Bush and the Republicans failed to ask for manual recounts in the immediate aftermath of that same election as the law in Florida provides, that is their fault (and, if it be true [though I think it quite the disingenuous excuse] that they did not ask for manual recounts because they honestly felt such recounts would be inherently inaccurate on their face, then they laid down their apparently principled gauntlet and must now stick with it; they can't very well then complain when their opponents then take advantage of a statute of which they voluntarily choose not to avail themselves. A principled position cannot bind those who do not share those principles and criticizing those for acting accordingly- which is quite a different matter from criticizing someone for not sharing such principles [a legitimate debating point]- is of little import where such departure is, in fact, legal!). One cannot have it both ways!!"

So I, too, recognize hypocrisy when I see it (my Commentaries throughout the Election 2000 cycle are full of many other examples where I have pointed out such hypocrisy)- and I have also often agreed with readers of TheGreenPapers.com who have pointed out hypocrisy they themselves have perceived in many a "vox Populi" of theirs we have posted (my responses to these "vox Populi"s show this). At the same time, however, the Bush camp DID have the perfect right- if only from a purely legal perspective- to suggest (and then emphatically declare in briefs filed in Federal court) that the Florida law as it existed at the time did, in fact, violate Federal Constitutional protections for the ordinary voter; from a purely POLITICAL perspective, moreover, they actually were- in a sense- even forced to take this action (hypocritical or not): to quote from my response to a 26 January 2001 "vox Populi": "Al Gore could do nothing about the 'butterfly ballot' or its effect on the election outcome per se (and a pursuit of that particular legal option- at least as an option for the Gore campaign itself- was dispensed with pretty early on) but he could- given the closeness of the margin in Florida- try to find other avenues which would allow his campaign to right what they- again, rightly or wrongly- saw as the 'wrong result'. Obviously, the Bush campaign had to counter that- from their perspective- the 'wrong result' would have been to allow the Gore campaign's wishes to prevail and we were 'off to the races' ".

But, turning now to a major point Mr. Curran made in his "vox Populi": Mr. Curran, it seems to me, favors the core of the argument made by the Bush camp during the Florida chaos that "you can't change a law after the election"- his complaint appears to be with the implications of that argument and the implementation of that argument (or lack thereof) by the Bush campaign: that the Bush camp was, generally speaking, equally as bad as the Gore camp in then seeking to violate this well-worn mantra; this is the very "hypocrisy" which Mr. Curran himself, apparently, sees. It also appears that Mr. Curran's complaint is not so much that either Supreme Court (State or Federal) should or should not have acted but, rather, that it was wrong for the Bush camp to do- for political reasons- what the Gore camp- for their own political reasons- were seeking to do through the legal process on both levels. This complaint, combined with his being a Bush supporter, suggests- to me- the assumption that Mr. Curran might regard a fair amount of contemporary judicial interpretation of Constitutions and statutes as "changing the law"- that is, so-called "Judicial Legislation" in violation of the doctrine of "Separation of Powers". At the same time, Mr. Curran does concede the fact that Al Gore merely, as he put it, "asked for a conflicting statute to be reviewed and interpreted."

Allow me to make a few comments regarding this concept of "Judicial Legislation" in relation to the legal aspects of the recent events in Florida. In my 24 November Commentary "IN DEFENSE OF THE COURTS", I DID note- though, admittedly, only in passing- "the fact that two strands of Law- one Statutory, the other 'Judge-Made' (a term which implies that judges may, in fact and at times- however rarely those times should be, constitutionally "legislate"- putting that last verb in quotes to clearly indicate that I am here using that verb in the sense in which it is used [and often misused] by those who decry what they often derisively refer to as 'Judicial Legislation')- have long existed side by side as they both came into the constitutional scheme the United States of America as a Federal Nation-State, as well as its constituent and Unitary States, have inherited- and modified- from English Common Law". I then- in that 24 November Commentary- primarily concentrated on the justification for Judicial Review found in the Federalist, No. 78 written by Alexander Hamilton and then applied such "Hamiltonian" reasoning to the Florida situation (though only as it existed the day after Thanksgiving- this was, of course, all before the U.S. Supreme Court's two rulings with the Florida Supreme Court's having ordered a statewide recount sandwiched in between). It might be wise for me, here and now- once and for all, to move from the particular (the Hamiltonian Judicial Review position [ultimately embodied in then-Chief Justice John Marshall's famous opinion in the case of Marbury v. Madison]- as opposed to both the Jeffersonian Legislative Supremacy and Madisonian Egalitarian [wherein each of the three Branches of Government, under Separation of Powers, are equally competent to interpret the Law] positions) to the more general (the entire overarching concept of "Judge-Made Law"- that is, "Judicial Legislation"- in our legal system as it was applied to the Florida mess of late last year):

"Judge-Made Law" and so-called "ordinary Legislation" (that is, law created by statute) have always had a rather uneasy co-existence in the Anglo-American legal system. At one time, all law was- in effect- "judge-made": the Bible itself is replete with stories reflecting how this concept once functioned in the Ancient World- and it is not totally by accident that, while the Hebrew title of the seventh book of the Bible (Shofetim) is best translated as "chieftains", the name of the book in English has come to be- through Greek and Latin- "the Book of Judges", for chieftains- tribal rulers- were judges as well!

In pre-Norman (that is, Saxon) England, law was primarily the province of what we today would call the Judiciary. An accused was brought before a court of the shire (county) which, in many cases, had to define the crime, determine the appropriate sentence upon conviction, even come up with what we today would call "rules of evidence", all often virtually on the spot. The law in one shire might differ from the law in an adjoining shire (partially as a reflection of the shires having been, in at least a few cases, one-time separate kingdoms of a more or less united England but mostly simply a reflection of each shire handling legal issues their own way).

The Norman Conquest brought the Roman "Civil Law" concept of the Ruler (in this case, the King of England) as "the fountainhead of Justice". This created two new concepts in English law: the Civil Law concept of Equity (in which the King's Chancellor could fashion remedies not hitherto available under Saxon law) and, more to the point of this discussion, the Common Law (in which the King's courts could oversee the operation of shire [county] courts to make certain that there was but one law "in common" [hence the name] throughout the English realm). The Common Law was the origin of England as a Unitary State (in which such a State's Civil Divisions- at this point, the shires- were mere creatures of a higher sovereignty for the benefit and convenience of that higher sovereignty's own political and legal purposes) as well as the concept of Appellate Review of the decisions of lower courts (and it is no accident that the judges of the King's own courts came to be known as "Justices"- as opposed to mere "judges").

Throughout English history- well into the 19th century, in fact- the King's Justices were considered to be "ministers of the King" no less than the members of the King's "Privy Council" (the Executive in the nascent English Constitution: in effect, an early form of what- much later- came to be the Cabinet). Those fearful of the arbitrariness- real as well as potential- of decisions made by the King's court (whether legal or political) managed to- over time- gain for Parliament (consisting of the House of Lords, made up of the greater nobility [the "barons"- earls, dukes, viscounts, etc. as well as bishops of the Church (the "lords spiritual" to the barons as "lords temporal")], and the House of Commons, made up of the lesser nobility [the knights- aka "baronets"] and the freemen of the chartered municipalities known as "boroughs" [the freemen therein, thus, known as "burgesses"]) the right to alter such judge-made Common Law by specific "statute".

Two sources of law now existed in England, side by side, the "judge-made" Common Law and the Statutory Law consisting of Acts of Parliament (which, of course, the judges and Justices alike were expected to apply while adjudicating legal cases brought before them- though, of course, in determining just HOW to apply either the Common Law or Acts of Parliament to an instant case, the Judiciary was, in fact, also interpreting both!). This was the politicolegal situation those British colonies which would eventually become the United States of America would inherit from the Mother Country.

In his massive 1898 work, The Origin and Growth of the English Constitution... and the growth out of that system of the Federal Republic of the United States, Dr. Hannis Taylor well points out that the equivalent of Parliament in Great Britain is NOT the Congress of the United States (even though, to the "court of Nations"- that is, the international community- both the British Parliament and United States Congress are the respective legislatures of independent Nation-States) but, rather, the Legislatures of the Several States. The Common Law was brought to the American Seaboard by the English colonists and subsequently interpreted in case after case by judges and modified by statutes passed by the colonial assemblies- but only to fit each colony's peculiar circumstances. The assertion- by the Patriot cause- that these colonial assemblies were, in effect, "mini-Parliament"s (against the opposition of King and Parliament of the nascent British Empire) was one of the main causes that touched off the American Revolution. The problem faced by those who sought a "more perfect Union" in the aftermath of that Revolution was in how to reconcile the fact that Georgia- the southernmost of the "original 13"- had, in the course of colonial history, developed both a Common Law (a repository of judicial opinion) and a Statutory Law (a repository of codified legislation) significantly different from that of New Hampshire- the northernmost of the newly united States- with the idea of an overarching National Government superior to both without infringing unnecessarily with the States' own inherent sovereignty as Unitary States no different in kind from the Mother Country.

Thus, the horizontal tension between "judge-made" case law and law created and modified by statute was- under the United States Constitution- joined by a vertical tension between Federal law (regardless of source- judicial or legislative) in general and law in the equal- though lower- sovereignties of the several States. It is precisely these very tensions built into our Anglo-American legal system (as one would have to call it, given its English origins- however much the American governmental system differs from its British counterpart today, a byproduct of that separation between the two some 225 years ago) that came into play in the Florida election debacle this past Fall.

One of the more potentially dangerous arguments put forth by the Bush campaign's attorneys (and one which disturbed me greatly as the whole Florida drama unfolded)- a premise which appears to, thankfully, have been rejected by the U.S. Supreme Court in its final 7-2 decision that the lack of statewide standards in the Florida manual recounts violated the Equal Protection Clause of the 14th Amendment- was the concept that the Florida Supreme Court had no authority whatsoever to interpret the Florida election laws at least insofar as a Presidential Election was concerned. This errant hypothesis was based on an attempt to twist the meaning of the word "legislature" in both the Federal Constitution as well as Title 3, Chapter 1 of the United States Code which each state that "each State shall appoint, in such manner as the legislature thereof may direct, a number of Electors..." [U.S. Constitution: Article II, Section 1, clause 2] and "The electors of President and Vice President of each State shall meet and give their votes... at such place in each State as the legislature of such State shall direct" [U.S. Code: Title 3, section 7].

The Bush team argued that "legislature" meant, literally, the State Legislature- and only the State Legislature [!]- as a body in and of itself and, further, that this fact prevented a State's courts from reviewing the "manner" in which "the legislature thereof may direct" how the Presidential Electors were to be chosen (in this case, the Election Laws insofar as they functioned relative to a Presidential Election). U.S. Supreme Court Justice Anthony Kennedy- early in one of the hearings before the Nation's highest court- called Bush attorney Ted Olson more or less to task for suggesting that a State Legislature could be so "divorced"- I believe that was the term Justice Kennedy used- from its own Constitution (in this case, the Florida State Constitution) so as to preclude any judicial review of its statutes by its State's own courts. Olson replied with the position that Federal law- as "the Supreme Law of the Land"- overshadowed State law (on the basis of the Bush team's contention that the use of the word "legislature" in the relevant Federal law quoted in the previous paragraph meant only the State Legislature itself).

This argument on Bush's behalf was specious at best where it was not, at worst, fallacious! The Framers of the Federal Constitution could not know the exact political system or "republican from of government" guaranteed to the States by the Federal Constitution [in Art. IV, section 4 of that document] which would be utilized by the several States once the Constitution were ratified and have come into operation (to take one obvious example, both Connecticut and Rhode Island were still operating under their 17th century colonial charters- not newly minted State Constitutions as in their 11 sister States- in 1787; to those to whom "republican form of government" only means Separation of Powers, let me point out that- in 1787- the upper house of Connecticut's General Assembly (the State Senate) also functioned as the highest court in the Nutmeg State- the Supreme Court of Errors- and would do so until Connecticut adopted a written State Constitution in 1818!). The use of the word "legislature" in the U.S. Constitution, therefore, was a legal term of art intended to contemplate the whole law-making machinery of a State of the Union (legislative acts, executive enforcement and judicial application) as it existed- and, in future, would exist- under a State's own constitution (small "c" so as to include the two "colonial charter States" of far Southern New England).

Furthermore, I myself was responsible for compiling the information for the table posted on TheGreenPapers.com entitled "Place and Time of Meeting of Presidential Electors"; in so doing, I had to read the Election Law in EVERY State- including such statutes enacted by the State under authority of Title 3, section 7 of the U.S. Code as quoted earlier in this response- and I do not recall seeing, in any of the annotations re: the legislative history of these laws, any reference to the Governor of the State at the time of their passage, not having signed these bills into law! Clearly, the use of the term "legislature" in Title 3, section 7 of the U.S. Code included constitutional authorities outside the State Legislatures operating solely as a body (in this case, the Constitutions of the several States either requiring their Governors to sign Election Law proposals [including determining the time and place of the meeting of Presidential Electors] passed by their Legislatures into law or, where a Governor might have vetoed such a bill, requiring the Legislature to then override his veto in order for the bill already passed to become law).

And, if the executive of the State be here considered an integral part of a "legislature" under authority of either Article II, section 1 of the Federal Constitution or Title 3, Chapter 1 of the Federal Code in his or her impact upon the State's law as it relates to the conduct of Presidential Elections, how then can the judiciary of the State not be so considered, insofar as it utilizes its constitutional authority under the State Constitution, likewise a part of the whole state law-making process which the term "legislature" as used in the Constitution and Federal statutes expanding upon such Constitutional provisions (as Title 3, Chapter 1 of the U.S. Code) was, as it so appears, intended to embrace! To me, that position taken by the Bush camp- attempting to, indeed, legally "divorce" the Florida Legislature from its own State Constitution and, thereby, the courts of the Sunshine State- is an even more grievous- where not egregious- example of the hypocrisy on the part of the Bush campaign Mr. Curran so rightfully decries in his "vox Populi" above.

To again quote from my 24 November Commentary "IN DEFENSE OF THE COURTS": "[M]any claims that the Florida Supreme Court was unconstitutionally 'legislating' or 'overreaching' ('supplanting the Legislature' as one emailer put it, after which he specifically took issue with my previous Commentary urging that the Florida Legislature not take it upon itself to choose the State's Presidential Electors... on grounds that, in his view, that Legislature would- should they do so- simply be 'taking back' powers and authority 'they claim they already have')... statements that themselves fly directly in the face of American constitutional tradition and the Rule of Law that most of these emailers claim to be so ardently defending". The fact is that the Florida Legislature might very well have claimed two months or more ago to "already have" powers which they had to "take back"- but claiming so did not make it so.

That the United States Supreme Court, in both of its admittedly controversial rulings this past December, remanded the case of Bush v. Gore back to the Florida Supreme Court each time (even though the Equal Protection aspect of the High Court's second decision effectively mathematically eliminated former Vice President Gore from the Presidency once and for all [for the reasons I stated in my response to the 26 January "vox Populi" entitled "Conducting Recounts in 'All the Closer States' "]) suggests that the Florida Legislature is, indeed, not- when it comes to the regulation of the conduct of Presidential Elections in that State- operating in a vacuum- a vacuum sealed against the outside by Federal law. The Bush camp's assertion of just such a vacuum for purely partisan gain deserves to be scored and scored most harshly: it is, unfortunately, yet another of the many negative legacies Election 2000 in Florida has left us to ponder.

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