Election 2000 - Just Ice

Those inclined to believe in the probity of high councils, such as those that disburse a nation’s health research funds, were driven from complacency in the fall of 2000 when one of the highest councils, the Supreme Court of the United States of America, handed the Presidency to the republican son of a previous republican President.

    The republicans had discarded their most competent candidate, Senator John McCain, who strongly advocated reform of campaign financing (see above), and selected George Bush, the Governor of Texas. The democrats selected the Vice-President, Albert Gore. In a time of "unprecedented prosperity" things looked good for Gore, whose 8 year understudy had amply prepared him to assume the highest office in the land. Yet, his style was somewhat "stiff," and his mentor, Clinton, had erred in his private life. By pressing for Clinton’s impeachment on this matter, the republicans had attempting to cripple the Presidency (and hence the important role it had to play in a dangerous world) in support of their own political interests. Bush played the "integrity" card for all it was worth, and the election became "too close to call." Everything came to depend on the vote in Florida, whose 25 electoral college votes would give victory.

    In the initial count, Bush had a slight lead. However, malfunctioning voting machines in certain democratic counties had rejected large numbers of votes ("undercounts"). The voters in those counties had thus been denied "the equal protection of the law" that the US Constitution’s 14th Amendment required. Gore appealed to the Supreme Court of Florida, which has final authority in state matters, requesting a recount in these counties, and called upon Bush to join him and press for a rapid hand recount of all rejected votes in Florida, so that "the will of the people" would become apparent, and the future President would be legitimized. Bush decline to do this and the matter went to the Supreme Court of the USA.

   Meanwhile, the State Supreme Court, under pressure from the Federal Supreme Court not to "make new law" gave the go-ahead for the recount, which under existing Florida Law required that the counters manually examine the voting cards to discern "the clear intent" of the voter. While this criterion might differ from counter to counter, an individual counter would use the same criterion whether judging an undercount for Bush or for Gore. So the counting was essentially fair, and could be made fairer by group evaluation of every undercounted ballot. The Florida Law did not elaborate, in advance, what would constitute "the clear intent," thus, wisely leaving the door open to the unexpected (such as a voter leaving the card untouched, except for writing, say, "I vote for George Bush"). In any case, changing that law was a legislative, not a judicial, task. Furthermore, all parties knew the rules when the "game" began and, however imperfect the rules, it was not appropriate to change them when the game was in progress. 

    Amazingly, on Saturday 9th December, the Federal Supreme Court, issued a ruling that the counting be stopped, on the grounds that it would do "irreparable harm" to Bush in that there would be a "cloud" over "the legitimacy of the election". As pointed out by Ronald Dworkin (NY Review of Books Vol 48, no. 1. p. 53-55): This

"bizarre claim not only assumes that Bush would have lost the recount, but also that the public is not to be trusted. Public knowledge that Gore would have won, if the recounts had been continued and been accepted, would produce doubt about a Bush election only if the public disagreed with the Court’s judgement that the recount was illegal; and it is constitutionally improper for the Court to keep truthful information from the public just because that information might lead it to conclude that the election was a mistake or that the Court was wrong."

      Even more amazing was the further Federal Supreme Court adjudication that the Florida Supreme Court’s "clear intention of the voter" standard for manual recounts violated the equal protection clause. Given this, it was still possible for the Florida Supreme Court (i) to define a new standard (an essentially legislative act, which the Federal Supreme Count now countenanced) and (ii) to have the manual recount completed by 18th December, when the Electoral College voted.

     However, the Federal Supreme Court considered that the Florida legislature would want to take advantage of the Federal "safe harbor" law that guarantees immunity against the unlikely event of a Congressional challenge to the Florida result, if the counting is completed by 12th December. Dworkin pointed out:

"It goes far beyond that safe [harbor] assumption to declare, as the five [Federal] Supreme Court conservatives did, that the Florida legislature meant to insist that the optional deadline be met at all costs, even if it was necessary to ignore the principles of accuracy and fair treatment that underlie the rest of the election code. That would be a bizarre interpretation of any state’s election law – what legislature would wish to be understood as purchasing an immunity it would almost certainly never need at the cost of sacrificing its basic commitments to justice?"

     Knowing that there were time limits, the republicans took every opportunity to delay. The Federal Supreme Court gave its final judgement only 2 hours before the 12th December "safe harbor" deadline expired, stating that the recount would have to be completed by that date. This was, or course, impossible, so that the Presidency was handed to Bush. A dissenting Supreme Court judge observed that the decision "can only lend confidence to the most cynical appraisal of judges throughout the land." Another dissenting judge considered this "self-inflicted wound … may harm not just the court, but the nation".

    Naked power had won over principle. "Justice" was revealed as just ice, which melts when the political temperature rises. When Gore conceded, many sighed that at least there had been a peaceful transition. But what is a "peaceful transition"?  Did they really imagine that there would be a military coup in the USA?

Events of the last few decades have shown that small groups, with an imaginary or real sense of injustice and a little technical know-how, can disrupt peace in powerful ways. As antidote to imaginary injustice we must bolster our mental health system (Click Here) . But the only antidote to real injustice is to ensure that such injustice does not occur.

     A political transition that leads Ronald Dworkin, Professor of Law at New York University and of Jurisprudence at University College, London, to write as quoted above, may turn out to be far from peaceful. This lack of peace may not be confined to North America. A clear signal has been sent to those who have power, but hesitate to use it. Winning is more important than justice. The ends justify the means.       

            Donald Forsdyke. 7th. Jan. 2001. 

Time-line adapted from the NY Times

Tuesday 7th November. Election Day

Tuesday 21st November. Florida Supreme Court lets recounts proceed in four counties.

Wednesday 22nd November. Bush appeals to US Supreme Court.

Friday 24th November. US Supreme Court accepts appeal.

Friday 1st December. Case is argued to US Supreme Court.

Monday 4th December. US Supreme Court unanimously decides to vacate the Florida Supreme Court's decision, asking for a better explanation of the ruling.

Friday 8th December. Florida Supreme Court overturns a lower court decision and order a statewide recount of ballots for which machines had registered no choice for president. 

Saturday 9th December. Justices accept Bush appeal and, by 5-4 vote, also grant the Bush request to stop the recount in the meantime. 

Sunday 10th December. Both sides file briefs.

Monday 11th December. Cases are argued before the US Supreme Court.

Tuesday 12th December. The US Supreme Court rules, 5-4, that the recount as structured by the Florida Supreme Court is unconstitutional and there is no time to fix it. 

Wednesday 13th December. Gore concedes. 

Legitimacy of the President?

In the final hours of his administration the out-going President took an important step to improve the legitimacy of Bush. The NY Times declared on 24th Jan:

"Bill Clinton's last-minute pardon of Marc Rich, the shadowy commodities trader who fled to Switzerland in 1983 to avoid American justice, was a shocking abuse of presidential power and a reminder of why George W. Bush's vow to restore integrity to the Oval Office resonates with millions of Americans who otherwise disagree with the new president's politics."

Casualties: First Justice, then Truth?

In January 2001 The New York Times, The Washington Post, The Wall Street Journal, Associated Press, Newsweek, CNN and several other news organizations commissioned Chicago's National Opinion Research Center to conduct a comprehensive examination of the 180,000 ballots not officially counted in Florida. It seemed that the press was fulfilling its constitutional responsibility to search out the truth. 

    Weeks turned into months. It took until August 2001 to complete the survey. Then, on September 11th came a terrorist attack on the World Trade Center in New York, and the Pentagon in Washington. Shortly thereafter, cases of anthrax were reported in individuals who received letters in the post containing a strange powder. The USA was placed on a war footing.

    On October 12th the Globe & Mail of Toronto (John Ibbitson) reported that "A consortium of major U.S. news organizations had decided unanimously not to analyze and report the results ... of the audit they commissioned to identify which presidential candidate received the most votes in Florida ...". The following day a lead editorial stated:

"Executives of the five major U.S. television networks have met and decided, on the advice of the U.S. government, that there are some things it would be best for the American people not to know. This is a startling act of collective self-censorship. ... The participants say that, given the dramatic shift in priorities since Sept. 11, they have neither the staff nor the space to pursue a stale-dated story. 

   Come again? The issue is who would have won the U.S. election if the choices of 180,000 voters had been respected; the story has major implications for American Democracy and the U.S. Supreme Court's intervention in the vote. Even with a war to cover, that's a tale that needs to be told.

   It is hard not to see this as a further subordination of news judgement to the desire not to rock the government's boat at a perilous time. Once again, journalistic independence is the loser."

From all this it is hard not to suspect that, just as the real experts who might have given advice on bioterrorism were sent "off fishin" because of the way our health research peer-review system works, so (?)President Al Gore (and his probable Secretary of State, Richard Holbrooke) were sent "off fishin" because of the way the US electorial system works. 

    At times which demand the very best of the very best, we should know if our world is in the hands of Governor George Bush or President George Bush? He states that, while being cautious, US citizens should get on with their lives and show the terrorists that they cannot succeed. However, "business as usual" requires that the press be unshacked. 

Donald Forsdyke, 14th October 2001

On 12th November, the press were unshackled. Yes, if all the Florida votes had been counted Gore would have won by from 42 to 171 votes. However, the headlines did not reveal this and one had to dig deep to find the truth. Gore's requests for limited recounts had been rejected, so it showed good judgment that he had requested, but not pressed for, a state-wide recount. If the limited recount proposal were rejected than it is certain that the state-wide recount would also have been rejected. 

     It turned out that, if only the limited recounts had been performed, then Bush would have maintained a slight lead. But that detracted from the real issue. Governor Bush was now in charge, for better or for worse. The most valid question was, who got the most votes in Florida? The result, albeit through a "photo-finish", was President Gore. There was much mumbling about the result being statistically insignificant. Well, so is the result of a photo-finish in the 100 metres dash. Yet, to the winner we accord the gold. Political contests are won by those who get a nose ahead. Statistics are irrelevant. 

Donald Forsdyke 12th November 2001


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This page was last edited 17 Jul 2010 by Donald Forsdyke