Posted on 11/17/2001 12:34:37 AM PST by LawProf
Supreme Vindication
No coincidence.
By Randy E. Barnett, the Austin B. Fletcher Professor at Boston University School of Law & author of The Structure of Liberty: Justice and the Rule of Law(Oxford Presss, 1998)
November 16, 2001 12:10 p.m.
In recent days we have been treated to press reports that President Bush would have won the vote count in Florida had the Supreme Court not intervened to "stop the counting." (Actually, the Court remanded the case to the Florida supreme court. It did not order the counting stopped.) These reports imply that it was merely a fortuitous coincidence that the Supreme Court's decision had the same effect as a continued vote count would have. But this overlooks a critical fact about the Court's decision in Bush v. Gore that its critics persist in willfully ignoring: The Supreme Court majority merely restored the decisions reached by local, Democratic election officials, decisions that were found to be reasonable by Democratic circuit court judges. It was the decisions by these Democratic officials that the Florida Supreme court had reversed — a reversal that followed its preventing on its own motion the Republican secretary of state from certifying the machine-recount results as required by Florida law.
In other words, the people responsible for counting the votes and certifying results had decided George W. Bush had won Florida, their exercise of discretion was then upheld by lower court judges, and it was only the Florida supreme court — at first unanimously, and then by a vote of 4 to 3 — who overrode their judgment. Local officials were right all along to find Bush the winner. Lower courts were right all along to find that they had not abused their discretion. The Democratic chief justice of the Florida supreme court was right all along to dissent (along with two of his colleagues) from their last intervention. And the U.S. Supreme Court was right all along to restore these judgments and reverse the one court responsible for inflicting chaos on the nation and nearly sabotaging a presidential election: the Democrat-dominated Florida supreme court.
In short, following the law ultimately led to the correct outcome. Given the design of that law, this was no coincidence. But there is another, more cynical reason to believe that this vindication of the five-justice majority in Bush v. Gore is no coincidence. One could reasonably believe that local Democratic election officials had done everything they could to hand the election to Al Gore, but were unable to mine enough votes from the otherwise spoiled ballots (the "undervotes"). Had their efforts been successful, their decisions would surely have been upheld not only by the lower courts as within their discretion, but by the Florida supreme court as well. By this account, all the majority of the U.S. Supreme Court did was prevent yet another attempt to snatch victory from electoral defeat — by restoring the decision of the partisan local officials who decided correctly that, notwithstanding their best efforts, George Bush was the winner.
Either way, though it was hardly inevitable that the press recounts would vindicate the five-justice majority in Bush v. Gore, neither was it a coincidence. Far from subjecting them to unending recriminations, the nation owes these justices thanks for doing their judicial duty in the face of foreseeable outcries from the partisan intelligentsia. Pundits, and my academic colleagues, owe them an apology for impugning their professional integrity. For, by upholding the decisions of local election officials, the justices not only reigned in an out-of-control lower court — they also restored the correct vote result that had already been calculated by those charged with this responsibility, and certified by the secretary of state.
So whether local Democratic officials were acting partially or impartially, it was no coincidence that, by reversing the four Florida justices who had cast aside the decisions of these officials and of lower court judges, the outcome of Bush v. Gore corresponded to the tally eventually reached by the press.
As you note, Democrats (journalists being a subset of the species) have a remarkable propensity to oppose the prevention of vote fraud. And they tend to win some of their biggest victories via judical activism--e.g. the SCoFlaw.
The fact is that--all pious protestations to the contrary notwithstanding-- Democrats simply don't believe in democracy.
In NO state where that Senator was elected, can a voter be sure that his or her active abstain vote will be counted as an abstain vote. Thus, we have a remnant of the European aristocracy mentality still in our political system: the elected have more rights than those who elected them. The perverse among us even try to count abstain votes as votes for themselves.
A voter who casts a ballot with no candidates marked for a given office has cast a legal abstain vote. For example, casting a ballot with no candidates marked for the office of County Judge.
The people that count the votes, such as Sec. Katherine Harris in Florida, do not count abstain votes as abstain votes, they count them as "machine rejected," "unmarked," "Dimpled or hanging chads," or the libs favorite: "undervotes." It is an unsolved mystery why election officials choose to ignore the obvious will of the voter.
In the 2000 National Election, there were 2,800,000 voters who actively voted to abstain, and NONE of their votes were counted as abstain votes. They voted for "none of the above" just like U.S. Senators do, the difference was that NONE of the legally cast abstain votes were counted as abstain votes in Florida, or any other State.
Bullet balloting, that is to say, voting for selected candidates, rather than the whole ticket,
particularly in state primaries where one declares party affiliation, is a form of abstention.
Thus, this method of voting for "none of the above" should be well understood by all voters to be an active form of voting, that is, to actively vote to abstain.
Curiously, few voters protest that their abstain votes are not counted as official abstain votes.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.