Election 2000 Redux

The erudite contributor known as Commonsensical has accused the Florida Supreme Court of “legislating from the bench” during the Florida 2000 election when they allowed Florida’s Republican Secretary of State Katherine Harris to delay her vote certification. I vociferously disagreed and I’ll explain why. (Furthermore, I feel that this issue of “activist judges” is pure unadulterated bullsh*t, and becomes dangerous when Republican politicians make veiled threats to judges who disagree with their views--but that’s another issue.)

We all know that I never made a big deal over the 2000 election results. As Vincent Bugliosi and others stated at the time, Gore was in a Catch-22, and coupled with partisan decisions made by Florida’s Republican Secretary of State Katherine Harris, he was never going to win Florida. But for anyone to say that “Gore didn’t have the votes” is not only disingenuous, it is altogether unknowable—they were never counted. As Josef Stalin said, “Those who cast the votes decide nothing; those who count the votes [or in Harris’ case: refuse to count the votes] decide everything.”

From the USA Today, the Florida 2000 vote:

Gore lawyer David Boies said the Gore campaign's appeals raised two questions:

• When can Harris certify the statewide ballot?

• Should Harris wait for the manual recount tallies from Palm Beach and Broward counties, two Democratic strongholds, before deciding whether to accept or reject them?

According to Boies, Florida law says a statewide certification can be blocked if Harris rejects "a number of legal votes sufficient to change or place in doubt the outcome of the election."

[snip]

Boies appealed after Leon County Circuit Judge Terry Lewis, a Democrat, ruled against Gore earlier Friday.

Lewis ruled that Harris "exercised her reasoned judgment" in deciding to reject manual vote recounts filed after a November 14 deadline.

All 67 counties submitted their vote totals by deadline.

But the counties of Palm Beach, Miami-Dade and Broward were conducting or considering manual recounts of some or all votes cast within their borders and told Harris they would file amended totals.

Lewis on November 14 said Harris has the authority to accept or reject such amended totals filed after the November 14 deadline.

However, [Judge Lewis] told [Harris] to base her decision on proper "discretion," ordering her not to reject any amended total simply because they were filed after the deadline.

On Wednesday, Harris announced that she would reject the amended totals.

[snip]

On Thursday, the Gore campaign told Lewis that Harris had violated his order by acting in an arbitrary fashion, asking the Democratic judge to declare the preliminary statewide vote certification "null and void."

Lawyers for Harris and Bush argued that Harris exercised proper discretion.

They said the law requires counties to file by deadline unless natural disasters or malfunctioning balloting equipment prevented vote tallies. The counties did not raise such problems, therefore Harris rejected hand recounts, they said.

The problem from Gore’s standpoint is that the law allowed Katherine Harris to use her “discretion” and she made an arguably partisan move by rejecting the prospect of amended totals. We all know that the Florida SC agreed unanimously (7-0) with Gore that if manual recounts are allowed by the Florida Constitution, then a reasonable amount of time should be given for such recounts. Commonsensical, that’s an “interpretation of the law”, NOT legislating from the bench.

The US Supreme Court eventually intervened in a split decision (5-4) that the 2-county recounts should stop because they violated the equal protection of the other 65 counties who did not enjoy recounts. (SCOTUS never mentioned the lack of protection for the 5 or 6% of the 2-county vote that was not counted versus the 2 or 3% in the other more Republican counties: no equal protection there?) So, Gore was in a Catch-22: Florida law allowed only for recounts in counties that have suspicious vote tallies, yet SCOTUS disallowed partial recounts. Hmm.

I do not see Judge Lewis “legislating from the bench” as Commonsensical has accused him of doing. Now, if he had mandated Harris to delay the vote certification, then that would possibly be an example of “legislating from the bench”, but many would still argue otherwise. The courts are required to interpret the intent of the law, and to protect the rights of the minority—in this case the citizens whose ballots were not counted properly.

The Democratic argument has always been that:

1)According to the US Constitution, the states are allowed to choose their electors by their own prescribed methods, unless their methods do not allow equal protection for all voters.

2)Florida law states that the election judges have a duty to attempt to determine the intent of each individual voter, to the best of their ability. Running faulty ballots through scanners does not necessarily fulfill that obligation.

3) If equal protection is an issue in state Florida, then SCOTUS did not ensure proper attention to equal protection of the 2-county region whose votes were not counted to the same degree as the other 65 counties.

In conclusion, I have always opined that on that cold November morning, more Americans and more Floridians intended to vote for Al Gore. This, however, is an unproveable hypothesis and therefore I have never pushed the issue. As far as the Florida SC “legislating”, I would say that you should truly re-think this premise and come up with a better example of “legislating from the bench.” Furthermore, I would argue that the best examples of activist judges are actually Republican appointees, with Justice Scalia the best example (here’s the link of a NY Times opinion piece.)

I’ll go one step further and say that I feel that the events of the past 4 years have shown evidence of the Bush team lying and cheating and cooking intelligence to meet their predetermined goals; so, I am becoming more and more convinced that stealing the Florida election in 2000 is not as far-fetched as I once thought. And I cannot fathom how anybody, let alone a majority of supposedly informed Americans, could have re-elected Bush in 2004. A sad, dark and dreary time indeed. As John Dean, Nixon’s Chief Counsel and later detractor says, Bush’s presidency is “Worse than Watergate.”