October 16, 2007

NY Times, Al Gore and the "stolen" 2000 election

*Sigh* Al Gore wins the Nobel Peace Prize for nothing to do with peace, and suddenly there's a resurgence of "what if" scenarios whereby Gore had actually won in 2000. The latest and "greatest" (but "greatest" only terms of volume) comes from the NY Times where they wrote:

One can generate a lot of heartburn thinking about all of the things that would be better about this country and the world if the Supreme Court had done the right thing and ruled for Al Gore instead of George W. Bush in 2000. Mr. Gore certainly hasn't let his disappointment stop him from putting the time since to very good use.

The Times' Thomas Friedman harped on the same theme in yesterday's NY Times edition:

Mr. Gore and Mr. Bush each faced a crucible moment. For Mr. Gore, it was winning the popular vote and having the election taken away from him by a Republican-dominated Supreme Court.

The New Republic's Marty Peretz chimes in as well:

Yes, the prize is rightly his. No one has devoted himself with such dedication and intellectual probity to a cause as important as this one. No one. So he deserves the Nobel. And the country deserves Al Gore to make another run at the presidency, he having lost his last try through chicanery and the arrogance of a party for which lying is second nature. Or maybe first.

As Newsbusters' Clay Waters notes, back in 2001 the "Paper of Record" reported that even with a permitted statewide manual recount in Florida, George Bush still would have won the state and hence, the election of 2000. Nevertheless, back in the day, I sure watched with intense interest how the historic election of 2000 played out. I actually think both camps -- Bush and Gore -- played the law meticulously and shrewdly, and ultimately (like it or not) Bush came out on top.

States' rights advocates (typically conservatives) must bristle at how the Bush camp was the first to go to court, especially federal court, in the whole imbroglio. The Gore camp played Florida law close to perfectly, in my opinion:

  • They wisely utilized the state provision for manual recounts if the initial [machine-counted] results resulted in a difference of less than 0.5% between candidates, even in cherry-picked counties (there's nothing that prevented them from doing just that);
  • They appealed directly to constitutional provisions that clearly state that individual states make their own rules for determining who won a state's vote:
    On Fri. Nov. 17th the judges ruled that "states have the primary authority to determine the manner of appointing presidential electors and to resolve most controversies concerning the appointment of electors.... Both the Constitution of the United States and 3 U.S.C. 5 indicate that states have the primary authority to determine the manner of appointing presidential electors and to resolve most controversies concerning the appointment of electors.
  • They appealed to what they dubbed "arbitrary deadlines" such as the Republican Secretary of State's mandated deadline for finishing a manual recount of various counties:
    [The Florida Supreme Court said] it was the clear from the overall statutory scheme that 7 days after an election was not a firm deadline. (Manual recounts could be initiated as late as 6 days after the election, and fines could be levied against counties that were late -- which meant that the statute contemplated that counties could be pressured into turning in their late votes as soon as possible, presumably so those votes could be counted.) "Ignoring the county's returns is a drastic measure and is appropriate only if the returns are submitted to the Department so late that their inclusion will compromise the integrity of the electoral process in either of two ways: (1) by precluding a candidate, elector, or taxpayer from contesting the certification of an election pursuant to section 102.168; or (2) by precluding Florida voters from participating fully in the federal election process" by missing the federally-mandated deadline for certifying electors. In other words, rather than allow the Secretary of State to ignore the county's returns unless she approved of their reasons for being late, the Court required her to count all ballots unless delays put at risk everyone else's ballot.

The Bush camp, on the other hand, played a "separation of powers" hand. On the last Gore point above, Bush & co. argued that the FLSC was usurping the law that the state legislature laid down, and that was a firm seven-day deadline. In addition, the high court intruded upon executive branch powers by ignoring the Secretary of State's power of certification of the vote results. (After all, if it is OK to ignore the seven-day deadline set by the state legislature, then how in the world did the FLSC come up with an additional of five extra days -- and why wouldn't it then be OK to ignore it?) In addition, the FLSC -- while having little difficulty in setting "new" rules to make sure "every vote was counted" -- did not set any specific guidelines as to just how "voter intent" should be determined.

Eventually, Bush and co. went to the US Supreme Court hoping that they would determine that the FLSC had overstepped its bounds. The SCOTUS agreed to hear the case ...

and asked the parties to address "the consequences of this Court's finding that the decision of the Supreme Court of Florida does not comply with 3 U.S.C. Sec. 5," which requires that a state resolve controversies relating to the appointment of electors under "laws enacted prior to" election day.

The SCOTUS ended up vacating the FLSC ruling, but sent it back to them for further clarification. On the same day, FL judge N. Sanders Sauls ruled against every one of the Gore camp's bases for contesting the certified vote count. In what was viewed largely as an "amazing" reversal, the FLSC by a 4-3 vote ordered that Gore's contest be reinstated, that previous "certification" edicts be overturned, and that a statewide "undervote" count get underway. They also further extended the certification deadline.

At about the same time, the SCOTUS was deciding the historic Bush v. Gore case. Many either forget -- or choose not to remember -- that seven of the nine justices believed the lack of a uniform recount procedure in Florida was a "constitutional problem" (conflicting with the 14th Amendment). Indeed, the Bush camp argued in part that it was an equal protection violation that different counties and even within counties were using disparate guidelines by which to manually recount votes, and quite subjectively "determining the intent of the voter."

The majority of the Court argued using (in part) an Alabama case from the 1950s where the Alabama Supreme Court "railroaded" the state NAACP:

"...in NAACP v. Alabama ex rel. Patterson (1958), it was argued that we were without jurisdiction because the petitioner had not pursued the correct appellate remedy in Alabama's state courts. Petitioners had sought a state-law writ of certiorari in the Alabama Supreme Court when a writ of mandamus, according to that court, was proper. We found this state-law ground inadequate to defeat our jurisdiction because we were 'unable to reconcile the procedural holding of the Alabama Supreme Court' with prior Alabama precedent.... What we would do in the present case is precisely parallel: Hold that the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required...."

The ironic thing about this opinion is that I argued a few times back in 2000 and early 2001 (on various political bulletin boards -- this was before blogs proliferated) that imagine if certain counties (and within certain counties) had differing recount standards -- and it was a white candidate vs. a black candidate. (And I wasn't aware at the time of the SCOTUS majority's views regarding that Alabama case! Pretty amazing, huh?). Would the usual federal government-is-needed-for-everything left wing settle for a "states' rights" argument that the Gore camp so vociferously espoused throughout this whole ordeal? It is extremely difficult to imagine that would be the case. So, what makes it OK for Bush and Gore?

The liberals and Democrats accused the Rehnquist wing of the SCOTUS of incredible hypocrisy on their ruling. In some respects they were right. Rehnquist, Scalia and Thomas especially are quite states' rights aficionados and their ruling seems to contradict that philosophy. But on the other hand, the liberal wing of the SCOTUS -- and liberals/Democrats in general -- also were guilty of that very same hypocrisy by arguing so vehemently for states' rights! This quite cogent view did not see much time on the myriad pundit shows and papers (surprise!) following the momentous SCOTUS decision.

In addition, the Gore camp's claims of their desire to "see every vote counted" proved to be an outright lie as Gore's lawyers attempted to thwart the counting of innumerable military votes from overseas. How come? Because those votes would likely prove a majority for Bush. After all, that's why Gore only wanted manual recounts in certain -- Democratic -- counties in the first place!

In the end, I believe very good arguments were made by both camps, and ultimately Bush's camp prevailed. But you'll never hear that from the NY Times or others in the MSM now, will'ya?

(Most source material courtesy of this site.)

Posted by Hube at October 16, 2007 04:05 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

Just how did the evil right-wing Supreme Court prevent Gore from winning his home state?

Posted by: G Rex at October 16, 2007 05:44 PM

The ironic thing about this opinion is that I argued a few times back in 2000 and early 2001 (on various political bulletin boards -- this was before blogs proliferated) that imagine if certain counties (and within certain counties) had differing recount standards -- and it was a white candidate vs. a black candidate.

As in 2000, liberals wouldn't have a problem with this so long as the vote counts were jury-rigged to the black candidate won. Unless the Black candidate was a Republican of course.

Posted by: Jeff the Baptist at October 17, 2007 09:11 AM

The democrats threw out all of the absentee ballots from the Military in Florida. To me, that was a life long decision. Proving Democrats were unrepresentative for those willing to fight for them, and a tyranny as a party.

They have sunk this nation and my vote is not with any of them until they reform their ways.

They sicken me.

Posted by: newc at October 19, 2007 01:18 AM