By Paul Rosenberg

Two crucial court decisions yesterday reinforced the marginal importance of the right to vote in American and Floridian law, while media coverage from Fox to Pacifica focused narrowly on Al Gore's waning chances of becoming President, and totally ignored the beating being taken by the right to vote. As for the Gore campaign itself, it now appears it will pay a heavy price for ignoring the widespread violations of voting rights reported by voters and activists, particularly against the rights of minority voters. But this is what it looks like when the system "works."

The Supreme Court's primary concern was that the Florida Supreme Court not rely on the right to vote in the Florida Constitution. Because the US Constitution and federal law gives state legislatures the power to determine the selection of electors and says nothing about voters in this regard, the Supreme Court essentially voted to overturn the Florida Supreme Court ruling pending a showing that it relied solely on Florida election law--passed by the state legislature--in making it's decision. But if it relied on the right to vote in the Florida Constitution, then the original decision allowing more time for hand recounts would be overturned.

Meanwhile, in the trial court hearing Gore's election contest, presiding good old boy Judge N. Sanders Sauls showed just how far Florida law could go in ignoring the right to vote. What mattered in Sauls's ruling was not that "every vote count" as Gore has repeatedly argued in the best high-school civics class manner. Forget civics class, this is a bathroom knife fight. At the heart of Sauls's ruling was his two findings that (1) there was no showing of fraud or intent in preventing an accurate vote and (2) there was no evidence showing that Gore would win if the votes were recounted--a piece of circular illogic I'll get back to in a moment.

Voting Rights Trampled and Ignored

Of course, it matters little to you if your right to vote is denied through careless neglect or conscious malice. By focusing on the intent of those who deny the right to vote, and ignoring the effect on the right itself, Sauls has once again revivified the ancient Southern tradition of trampling the voting rights of the dispossessed in the dust, although with a postmodern multicultural twist that targets the rights of Holocaust survivors, Haitian immigrants and U.S. citizens from Puerto Rico along with Southern blacks. In doing so, he was only following Gore's lead, however.

Gore never sought to challenge the butterfly ballot in Palm Beach, or the more complicated set of circumstances in Duval which produced one invalid vote for every Gore vote in the county. Gore never tried to collect affidavits from the thousands of voters turned away from the polls because they'd been improperly excluded from precinct lists and were not allowed to cast provisional ballots as Florida law provides. Nor did he seek affidavits from the smaller number of voters who were actively harassed--most notably by police road blocks. Nor did Gore follow up on accusations that Republican operatives disguised as Gore campaign workers handed out fraudulent palm cards at Precinct 153 in Miami-Dade County, giving Bush's number on the Miami-Dade ballot, while pretending to instruct people on how to vote for Gore.

For the ugly truth is that there was fraud in this election, and there was intent to deny people the right to vote, even though many more votes were nullified by malign neglect and systematic second-class treatment. But because Gore was only concerned with getting enough votes to win, because fighting for everyone's right to vote would bring down the wrath of racist pundits who accuse Jesse Jackson and Al Sharpton of being racial troublemakers, and because empowering and supporting the grassroots goes against everything Al Gore and the New Democrats stand for, Gore decided to "play it safe" with a narrow, legalistic strategy that played right into the hands of his Republican opponents in the election and co-conspirators in globalizing plutocracy and destroying democracy.

Gore's neglect of the multitudinous problems with the Florida election gave Sauls all the opening he needed. Gore made no mention of voter intimidation or fraud and Sauls jumped on that omission. Not that it should matter, mind you. A vote denied is a vote denied. Wholesale indifference is a whole lot more effective and efficient in denying votes than retail intentionality. But if the former cost Gore tens of thousands of votes, the latter certainly cost him enough to make up the margin of victory--if only he had cared enough for the rights of "the least of these" to save his own political skin.

Equally important, Gore's neglect of the wider patterns of irregularities, intimidation, misdirection and fraud opened the door for Sauls's circular illogic I mentioned in passing above: the "logic" that essentially says Gore can't get the votes to prove he would have won unless he first produces the votes to show we would have won. Sauls doesn't come right out and put it that way, of course. Instead he uses high-sounding but ambiguous legal terms which he never translates into something concrete. But the result is a clear impossibility. Gore cannot prove he would have won the election if he can't get the handcount of the votes he's counting on.

Law Without Justice

Unless he expands the scope of his challenge. But it's too late for that. For the heart of the process is a set of rules and procedures and timetables--above all it's about time-tables, about running out the clock on people's rights. On Election Day it was all about sending people from one precinct to another until they ran out of time to vote, instead of simply allowing them to cast a provisional ballot. Now it's about sending cases from one court to another until time runs out on selecting Florida's electors, instead of simply casting a provisional ballot for justice--which would mean counting all the ballots, and investigating all the other irregularities, fraud, voter intimidation and other violations at the same time that all the court cases go forward.

Historically we've been taught that the rights of those who are excluded are non-existent. The Dred Scott decision went so far as to claim that blacks were not citizens at all, and had no rights that a white man was bound to respect. We've also been taught that the rights of those who are marginal are marginal considerations. If it's not too much trouble for us, when we have time to get around to it, maybe five, ten, twenty or fifty years after the fact, well we might provide some small measure of recognition for the rights that have been trampled underfoot--and then again, maybe not.

The way in which the disenfranchised votes of Florida are being treated--by the courts, the media, the Justice Department and the Gore campaign--falls squarely within this ancient and dishonorable, nay despicable tradition, whose logic subordinates the most fundamental rights of the marginal to the slightest convenience of the privileged. We're all used to this kind of logic, for it is the logic of power and all of us must live our lives in intimate familiarity with it, whether we embrace it willingly or oppose it with every fiber of being.

But there is another logic, the logic of justice. And the logic of justice tells us that an injustice anywhere is a threat to justice everywhere, that injustice toward anyone is injustice toward everyone, that an injury to one is an injury to all. For justice is not an individual possession, it is a shared treasured enjoyed by everyone, or else it is a mockery. What we are seeing unfold in Florida is a mockery of justice and democracy. But we need not surrender to it. Indeed, we must not surrender to it if we are at all worthy of the mantle of freedom, of the legacy of those who fought before us against even more impossible odds--the Abolitionists, the Suffragettes, the Freedom Riders, Bus Boycotters and marchers from Selma to Montgomery. Al Gore is a candidate of the system and by the system. He may abandon us--as he already has by framing his battle so narrowly--but we cannot afford to abandon the much larger and much longer struggle for justice and freedom.

Let there be no doubt, if Bush is certified the next President of the United States he will not be legitimately elected, and will not rule America legitimately any more than his namesake King George III did. It isn't just a matter of not liking his politics, or opposing his desire to pack the courts with judges and justices that would take us back to the 19th Century or earlier. It's a matter of fundamental justice, a matter of respecting everyone's right to vote. This election has not done that, and even more significantly the post-election process has not done that either.

After all, it is understandable--if not forgivable--that elections will dirty to the point of violation people's fundamental rights. What is neither understandable nor forgivable is that the courts should put their stamp of approval on such a shameful betrayal of the promise of democracy. We need no more "justices" to stand in the way of justice. We need no President put in power by a legalistic coup carried out by a tag-team of thugs in suits and blind justice that recalls the immortal words of Langston Hughes:

Justice

That Justice is a blind goddess
Is a thing to which we black are wise:
Her bandage hides two festering sores
That once perhaps were eyes.