GORE'S FINAL ASSAULT
Thursday,November 23,2000
By GEORGE WILL
--------------------------------------------------------------------------------
"The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny."
- James Madison,
Federalist 47
AL Gore's assault on the rule of law, crowned with success by Florida's lawless Supreme Court, has now become a crisis of the American regime. See above.
In asking that court on Monday to do what Gore wanted, attorney David Boies uttered a notable understatement: "I believe that there is going to have to be a lot of judgment applied by the court." Consider the radicalism - it far exceeds routine judicial activism - of what the court did with its "judgment."
Barry Richard, a George W. Bush lawyer, accurately told the court that Gore was asking it to read a statute, which says returns "must" be filed by a date and time certain, as though it says returns may be filed by a date and time certain. And, Richard said, Gore was asking the court to read a statute that says Florida's secretary of state "may" accept late returns as though it says she "must" accept late returns. So, Richard said, in order to rule for Gore the court must "disregard the well-established and long-standing doctrines" regarding the "clearly erroneous" standard, and regarding "implied repeal."
The "clearly erroneous" standard is this: For a higher court to overturn the ruling of a lower court, it must find the lower court clearly erroneous. In this case, it must find that the trial court had no reasonable basis for ruling that Florida's secretary of state did not abuse her discretion when she acted as though the statute reads the way it actually does, rather than the opposite way that Gore wants it to be read. Furthermore, when a court reads a statute as having a meaning directly contrary to its clear language, the court implicitly repeals the statute.
So the court, in a trifecta of willfulness, traduced all three branches of government. It says it acted out of respect for "the will of the people." But not the people's will as expressed by the people's elected representatives in the Legislature that wrote the election laws. And not the people's will as expressed in the election of the secretary of state to enforce the laws.
During oral arguments Monday, a justice mused, "Are we just going to reach up from some inspiration and put it down on paper?" Which the court did Tuesday night, saying the secretary of state could not enforce the statutory deadline for receiving vote totals, because, the court said, that deadline made recounting impossible. So the court plucked from the ether a Sunday night deadline. Then on Wednesday, Miami-Dade County officials threw up their hands and declared additional recounting impossible because of the court's new deadline. Chaos, courtesy of the court.
In Federalist 81 Alexander Hamilton said the "supposed" danger of judicial "encroachments on the legislative authority" is a "phantom." In Federalist 78 he pronounced the judicial branch the "least dangerous" to political rights because it neither wields "the sword" nor controls "the purse," and hence "can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."
No, a lawless court, using the force of its willfulness to impose its judgment, also depends on the deference of both political branches. Will Florida's Legislature defer to the Supreme Court's usurpation of legislative powers in the service of Gore's attempted usurpation of the presidency?
By legislating - by airily rewriting Florida's election law and applying it retroactively to this election - the court has thrown down a gauntlet to the state's Legislature. Responding in the climate of cynicism and trickery Gore has created, legislators could decide that deference now would betoken decadence; they could exercise their legal right to select Florida's presidential electors. If in the third week after the election Gore at last manages, by getting selected ballots judged by frequently adjusted standards, to manufacture enough votes to take the lead, his electors will be no more legitimate than any others created by raw assertions of power.
Addressing the court on Monday, Boies, speaking for Gore, used the language of contemporary liberalism's relish for judicial imperialism. Nine times Boies urged the court to wield its "power." In doing just that, the court has refuted Hamilton's sanguine assurance (in Federalist 81) that although "misconstructions and contraventions of the will of the legislature may now and then happen," they can never "affect the order of the political system." We are a sadder but wiser nation now.
===========================================================
Tossed Military
Ballots Under Guard
By GREG B. SMITH
Daily News Staff Writer
TALLAHASSEE, Fla.
judge yesterday ordered 1,527 overseas ballots that were rejected because they had no postmarks to be sequestered while a Republican lawsuit proceeds.
The order was given after attorneys for George W. Bush's campaign sued in Leon County Circuit Court to force officials in 14 Florida counties — all of them home to military bases — to count the absentee ballots.
"I never thought we'd have to be here, and I hope we can work it out," Fred Bartlitt, a lawyer for the Bush team, told Judge Terry Lewis. "Everybody's saying all the right things, but Sunday is getting closer, and nothing's happening."
The Florida Supreme Court has set a Sunday deadline for all ballots in the state to be counted.
The military ballot controversy exploded Nov. 14, the day absentee ballots were due, and resulted from conflicting laws. Under Florida law, ballots without postmarks are disqualified. However, federal law says ballots from military service members stationed overseas don't need postmarks.
Democrats, including vice presidential candidate Sen. Joseph Lieberman, have called for the ballots to be counted, but Bartlitt said county officials had done "almost nothing" to include them in vote counts.
Lewis issued an emergency order protecting the ballots, but he refused to order county officials to copy the envelopes so Republicans could review them. Lewis said he feared that handling the ballots further would lead to charges of tampering.
Democratic lawyers did not attend the hearing, which took place two hours after the lawsuit was filed. Lewis said both sides could sit down through Thanksgiving to work things out.
Original Publication Date: 11/23/2000
===========================================================
Jewish World Review Nov. 23, 2000 / 25 Mar-Cheshvan, 5761
Thomas Sowell
PLOYS R US
http://www.jewishworldreview.com -- THE FLORIDA SUPREME COURT has disgraced itself and undermined election laws, not just for this election in Florida but for future elections across the country. Any future losing candidate in a close election now knows that he need only create enough noise and confusion, and then shop around for sympathetic judges.
On the eve of this election, no one in his right mind would have thought that it would be decided by hand-counting ballots in three counties in Florida and machine-counting the other 64 counties. It is not just a question whether dents on a ballot should count as votes, but whether dents should count as votes in heavily Democratic counties, while only perforations count as votes in the rest of the state.
Amid all the pious talk about wanting every vote to count, the Florida Supreme Court has not lifted a finger to enable the military ballots from overseas to be counted. Nor does the pious statement by Florida's Democratic attorney general that he would like to see the military ballots counted have the slightest effect, because he has no authority in this matter, and local Democrats who are counting the votes are disregarding his words. The attorney general knew that his words would not change the vote-counting, but it was a clever political ploy to sound sympathetic to the people serving in the military overseas -- while continuing to disenfranchise them on a technicality.
This whole post-election free-for-all could be called "Ploys R Us." These ploys have even included trying to corrupt the electoral college itself by digging up dirt on Republican members of that college and then contacting them to try to "persuade" them to vote for Gore, even though they were elected to vote for Bush.
The legal issue before the Florida Supreme Court was not how ballots were counted. The legal issue was whether Florida Secretary of State Katherine Harris abused her discretion by not extending the statutory deadline to allow time for hand counting. This was not Ms. Harris' deadline. It was the deadline established by law. Although she had the discretion to extend it -- as, for example, when there are hurricanes, floods or power outages -- discretion doesn't mean anything if anyone who asks for an extension has to get it.
Disasters beyond the control of local election officials are one thing. But, if large counties with hundreds of thousands of votes choose a method of counting them that they cannot or will not complete within the deadline, does that give them an automatic extension to take however long they want? Or however long judges want to give them? Why then does the law give discretion to the Secretary of State? The point here is not just that the judges made the wrong decision. It was not their decision to make.
The Constitution gives different powers to different branches of government for a reason. "Separation of powers" is not just some arcane phrase used by constitutional lawyers. It is what keeps us free. Power is too dangerous to all be in one set of hands, whether judicial, executive or legislative. But the Florida Supreme Court has a history of usurping powers belonging to other branches of government. Now they have given us a civics lesson in corruption -- how the use of arbitrary power from the judicial bench can even determine who becomes President of the United States. But we have gotten used to judicial despotism and some even confuse the fiats of judges with the rule of law -- which is the real danger for the future of this country.
The media have covered all this as a horse race between Bush and Gore, with very little attention being paid to what it means for the country and for the future. Some seem to think that it makes them "objective" if they condemn "both sides."
Just what is it that the Bush side has done? They played by the rules. When the Florida votes were counted in the way prescribed by Florida law, Bush won. When the votes were automatically recounted because of the narrow margin of victory, Bush won again. Only after Gore's operatives came up with another way to count votes -- or dents on ballots that could be called "votes" -- did Bush go into court. Meanwhile, the state governor recused himself from exercising his own right to vote on the decisions being made because his brother is a candidate.
If those who play by the rules are to be equally condemned with those who make up their own rules after losing, are we not in an Alice in Wonderland situation? Or is it just the land of "Ploys R Us"?
JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, A Personal Odyssey.
Thomas Sowell Archives
© 2000, Creators Syndicate
============================================================
Jewish World Review Nov. 22, 2000 / 24 Mar-Cheshvan, 5761
Walter Williams
JWR's Pundits
World Editorial
Cartoon Showcase
Mallard Fillmore
Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
David Limbaugh
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
MUGGER
Kathleen Parker
Wes Pruden
Debbie Schlussel
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Mort Zuckerman
Consumer Reports
Majority rule equals tyranny
http://www.jewishworldreview.com -- THE CONTROVERSY surrounding this year's presidential election has led to calls to abandon the Constitution's Article II provisions for the Electoral College to select presidents. Despite the fact the system has served us well for over 200 years, many Americans now call for its abandonment in favor of electing presidents by popular vote. Before we do this, let's consider the function it performs.
California, Ohio, Texas, New York, New Jersey, Florida, Illinois, Pennsylvania and Michigan can boast a combined population of 137 million. That's slightly more than half our 272 million national population. It's therefore conceivable that just nine states could determine the presidency in a popular vote. The Electoral College gives states with small populations a measure of protection against domination by states with large populations. That's because the nine high-population states have a total of 243 electoral college votes, but 270 are needed to win the presidency.
Compare Wyoming to California. California's population is over 33 million, while Wyoming's is 480,000. Thus, California has 69 times more people than Wyoming. California has 54 electoral college votes (since it has 52 congressmen and two senators), while Wyoming has three votes. In terms of the Electoral College, California has only 18 times as many votes as Wyoming. The Electoral College forces presidential candidates to appeal to voters in states with small populations.
The Constitution's Framers feared tyranny of the majority. That's why there's an Electoral College -- plus, even though California's population is 69 times that of Wyoming's, both states have two senators.
Despite public consensus, there's nothing inherently just or fair about majority rule. In fact, one of the primary dangers of majority rule is that it confers an aura of legitimacy and respectability on acts that would otherwise be deemed tyrannical. Ask yourself what day-to-day decisions would you like to be decided by majority rule? What about where you live, for whom you work, what kind of car you drive, what clothing you wear, what woman you marry?
You say: "Williams, those decisions are nobody else's business but mine. What's more, those are issues that don't belong in the political arena anyway!" You're right. Plus, we'd all agree that it would be nothing short of tyranny if where you could live and whom you could marry was decided by majority rule.
What if the decision whether to enslave a group of people were made through a popular vote instead of a dictatorship? Wouldn't you say that it was tyranny nonetheless? Instead of enslave, we could easily substitute the words rape, murder, rob and torture, and reach the same conclusion. Those examples are extreme and unlikely in the United States, but the principle is just as applicable on questions like: Should a popular vote decide how much of my weekly salary is set aside for retirement, or how much is set aside for housing, clothing, food and entertainment? If a popular vote decided these questions, there's still tyranny, but of a lesser degree.
Americans should read the wise words of James Madison in Federalist Paper No. 10. There's no clearer statement that the Framers fashioned a republic and not a pure democracy. Our Constitution set limits on not only the power of the three branches of the federal government, it also set limits on the arbitrary will of the people that might be expressed through a majority vote.
Madison said, "Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." And he's right.
============================================================
Breaking: RNC Accuses Gore of Tampering with Electors
NewsMax.com
Thursday, Nov. 23, 2000
In an urgent email sent out to approximately one million Republicans, Republican National Committee Chairman Jim Nicholson claims that Al Gore is tampering with the Elecoral College.
Nicholson says Gore's operatives have even begun doing background checks on Republican electors.
Here is the text of the Nicholson email:
Al Gore is attempting to reverse the outcome of the election by any means necessary. That includes tampering with the Electoral College itself.
Democrat operatives have begun clandestine background checks on Republican electors already certified from the 29 states George W. Bush won on November 7. They are looking for ways to persuade -- or intimidate -- Republican electors into changing their votes.
With Florida's 25 electoral votes, George W. Bush has a total of 271 electoral votes. (270 are needed to win.) That means a shift of three would give Al Gore a majority -- and there are people in Gore's camp who seem to think private investigators can sway enough votes to win.
This is outrageous. Already Al Gore has flooded Florida with lawyers, attempting to win in court what he lost at the ballot box. He is pushing for partisan, rigged recounts in Democrat controlled counties. He is demanding that Florida's election laws be junked so Democrat judges can impose a brand new, ad hoc system to accommodate the Democrats' frantic legal maneuvers.
Now the Gore camp is tampering with Electors. Al Gore will do anything to win. I've attached a Wall Street Journal report on the Democrats undercover assault on Republican electors. Read it and draw your own conclusions.
This election should be OVER. Because Al Gore refuses to accept the results, the fight continues. The RNC is working to defend the integrity of the vote, not only in Florida but also in other close states like Oregon, Wisconsin and New Mexico as well. We will fight this to the end, and we are confident we will prevail. But we need your help.
We realize that we have asked a great deal from you in the past few days, but the future of our country may well be at stake. We need to squelch this effort to steal Republican votes in the Electoral College in its infancy.
The Democrat Electoral College tampering is being led by Bob Beckel, who you may remember as Walter Mondale's campaign manager in 1984. Below is Mr. Beckel's contact information. Please contact him and express your outrage at his low handed tactics.
Bob Beckel & Associates 1501 Lee Highway, Suite 200 Arlington, VA 22209 Phone: 703.841.0600 Fax: 703.841.1115
In addition, please do the following five things to help. Your efforts could help make the difference:
1) If you haven't done so already, take a minute to make a contribution to the RNC to help defend the integrity of the electoral process . . .
2) Call, e-mail and write your local elected officials, Democrats and Republicans. Let them know that this recent ploy by the Gore campaign is an outrageous attempt to undercut our Constitutional Democracy . . .
3) Call your local talk radio show or TV news show and raise these issues.
4) Write a letter to the editor of your local, regional or national newspapers on these subjects.
5) Finally, send this e-mail on to your own e-mail list - to all of your friends and neighbors who are interested in knowing the truth about what is going on in Florida.
The situation we face is unprecedented. The presidency and the course of our nation for the next four years hang in the balance. . . .
Jim Nicholson Chairman
============================================================
Illinois Now Key to Florida
John LeBoutillier
Wednesday, Nov. 22, 2000
The key to last night’s stunning unanimous Florida Supreme Court decision can be found on pages 34-35. Addressing the subject of what exactly is a vote, the court quoted directly from an Illinois State Supreme Court ruling on the very same subject:
"The purpose of our election laws is to obtain a correct expression of the intent of the voters. Our courts have repeatedly held that, where the intention of the voter can be ascertained with reasonable certainty from his ballot, that intention will be given effect even though the ballot is not strictly in conformity with the law. ... To invalidate a ballot which clearly reflects the voter’s intent, simply because a machine cannot read it, would subordinate substance to form and promote the means at the expense of the end. The voters here did everything which the Election Code requires when they punched the appropriate chad with the stylus. These voters should not be disfranchised where their intent may be ascertained with reasonable certainty, simply because the chad they punched did not completely dislodge from the ballot. Such a failure may be attributable to the fault of the election authorities, for failing to provide properly perforated paper, or it may be the result of the voter’s disability or inadvertence. Whatever the reason, where the intention of the voter can be fairly and satisfactorily ascertained, that intention should be given effect."
Pullen v. Milligan, 561 N.E.2d 585, 611 (Ill. 1990)(citations omitted)
This passage will be used today in a Palm Beach County courtroom when the Gore forces go to Judge Jorge Labara and ask that he force the county canvassing board to include 800 dimpled/indented ballots. If so counted, these 800 would translate into a 300-vote pick-up for Gore. Those votes, combined with pick-ups in Dade and Broward, would put Gore ahead of Bush in the manual recount.
Similarly the Gore legal team, armed with this totally pro-Gore ruling, will use it to cajole, prod, squeeze and argue the Dade County Canvassing Board to include the controversial dimple chad vote.
It is on this very issue that the election will be decided.
These votes are the source of contention between the two campaigns and explain the normally reserved James Baker’s almost frantic performance late last night. His ill-prepared threats to use the Florida legislature to reverse the Supreme Court’s ruling may come back to haunt him. Because if this case returns to the Supreme Court in Tallahassee – and it very well might during the "contest" phase – that court is not going to appreciate Baker’s tone and demeanor.
Teddy Roosevelt’s motto was "Speak softly and carry a big stick." The modern-day post-Reagan GOP has become "Yell loudly and then wimp out."
Gore has so far won each legal battle all across the Sunshine State. But he has to win two more key court cases: convincing Palm Beach and Dade to include the dimples.
If successful, Gore will go ahead in the recount and have a shot at the presidency.
If not, Bush is our 43rd president.
============================================================
Continue