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COUP WATCH: Upside-Down-Backwards Land -- From Red Rock Eater News Service

by Phil Agre Monday, Dec. 11, 2000 at 3:05 PM

Anybody who was surprised by the Florida Supreme Court's order to finally count the votes in the presidential election has been sucking right-wing media exhaust. Al Gore won the election, except that the Republican machine in Florida insists on counting illegal ballots and not counting legal ballots, and accuses the Democrats of stealing the election for insisting otherwise.

error COUP WATCH: Upside-Down-Backwards Land -- From Red Rock Eater News Service

By Phil Agre

Sat Dec 09 16:28:45 2000

[Anybody who was surprised by the Florida Supreme Court's order to finally count the votes in the presidential election has been sucking right-wing media exhaust. Al Gore won the election, except that the Republican machine in Florida insists on counting illegal ballots and not counting legal ballots, and accuses the Democrats of stealing the election for insisting otherwise. Florida Republicans stole the 1998 Miami mayor's race using illegal absentee ballots, and now they insist that illegal absentee ballots be counted in the 2000 race, and excoriate the Democrats for circulating a memo that summarizes Florida absentee ballot laws. It's incredible. Welcome to Planet Whacko.

Meanwhile the Republicans accuse the Democrats of trying to change the rules after the election simply for going to court to make the election boards follow the Florida election law, even as the Republican Florida legislature attempts to change the rules after their election with their utterly illegal attempt to replace the citizens' votes with their own.

We see here the central principle of the new jargon: whatever you're doing, falsely accuse your opponents of doing it. Now the far-right wing of the US Supreme Court has engaged in the most extreme case of judicial activism in American history, staying action by the Florida Supreme Court under the very clear authority granted to the Florida courts by the Florida legislature, shutting down the contest procedure that Florida law provides and thus effectively throwing the election to its preferred conservative choice. In response to all of this, the sidewalk of the federal building in Los Angeles is filled with right-wing protesters whose signs use words like "fascism" and "evil" -- to describe what the *Florida* court did.

America is now Upside-Down-Backwards Land; it is filled with people who are capable of doing *anything*, because whatever they do, no matter how crazy or extreme, they hallucinate that it is really being done to them. How do they get themselves into that state? Let me give you an example. Looking at the map of which American states voted for which presidential candidate, conservative pundit Mike Barnicle remarked on MSNBC that the southern and middle states, which voted for Bush, represented "family values", and that the northeastern and west-coast states, which voted for Gore, represented "entitlement".

In a normal country this sort of thing would be denounced as ugly and divisive stereotyping. Instead, Gore supporter Paul Begala responded in a polite way by arguing that the situation is more complicated, and that every state has both good and bad aspects. To illustrate this, and clearly in that context, he pointed out that the states that Barnicle praised where also the states where James Byrd was lynched, Matthew Shepard was crucified, a federal office building was blown up, and so on. He continued by repeating that each of those states also has good attributes, and repeated that the picture is complicated. He concluded by calling Barnicle a "gifted commentator".

Then Peggy Noonan, writing in the Wall St. Journal, took out of context the bit about the Bush states being places where people got lynched and crucified and so on, and presented it as if Begala were claiming that those events defined the states they happened in. She mentioned nothing of Barnicle's comments, or of the message about things being complicated. Noonan's out-of-context quote was then repeated over and over by the conservative media echo chamber, Michael Kelly in the Washington Post for example. The quote bounced all over the Internet, and was mailed to me by several different people.

In each case, starting with Noonan, the argument was the same: this is the viciousness of Democrats to which we must respond in kind. Can you see the projection? Republican columnist issues vicious stereotype of Democratic states. Nobody expresses outrage. Democrat responds that the picture is complicated and that stereotypes do not apply. Republicans quote Democrat out of context, accusing *him* of issuing vicious stereotype of *Republican* states, using said accusation to justify further vicious behavior of their own. That's how it works.

Here's another example. The Republicans have incessantly used the word "selective" to suggest that there is something wrong with the Florida law that allows a party to an election to ask for recounts in particular counties. This law is not remotely unusual, and Republicans have asked for recounts under similar laws in many jurisdictions. Now, however, they claim to discern a 14th amendment equal-protection problem, an idea that the courts have basically laughed at.

Like so many words of the new jargon, the word "selective" is nicely ambiguous: it has one meaning that is true but trivial, and another meaning that is menacing but false. The true-but-trivial meaning is simply that the recounts are to be held in some jurisdictions and not others; a more suitable word might perhaps be "selected". But "selective" carries a negative connotation that the selection has been made in an arbitrary, unfair, or biased way, and this is the second, menacing, false meaning -- false because, as everyone on a sane planet would clearly recognize, the Republicans had a perfectly equal right to ask for recounts of their own, and simply declined to do so. They've even been criticized by some Republican lawyers for this decision.

But asking for their own recounts would have legitimized the very idea of recounts, and by any kind of fair recounting the Republicans would lose. No, their strategy throughout has been to twist language so as to delegitimate perfectly ordinary statutes and procedures, including some that reflect practices that have been commonplace for hundreds of years. So they endlessly repeat this word "selective" that is balanced between the trivial and the false, hoping to wear down rational thought and replace it with blurry connotations. Notice the projection: the fact that only Democratic areas are being recounted is a choice that the *Republicans* made by their own conscious acts of omission, and yet they are presenting it as some unfair thing that is being done to them.

Evidence of the Republicans' great success in this blurring of rational thought has flowed into my mailbox since the controversy started, in the form of indignant messages about the unfairness of these "selective" recounts. People will say things like "Democrats insist on selective recounts only in heavily Democratic counties -- what could be fair about that?". Do you see how twisted that is?

Or listen to George W. Bush himself: "Unfortunately, what the vice president proposed is exactly what he has been proposing all along: continuing with selective hand recounts that are neither fair nor accurate" (NY Times 11/16/00). Or Karen Hughes: "we are increasingly convinced that a manual recount, which is now underway in selective, heavily Democratic, hand-selected counties cannot produce that fair and accurate result" (NY Times 11/14/00) -- she manages to get in both "selective" and the extra- pejorative "hand-selected". This kind of strategic ambiguity is very common in the new jargon, and it helps to account for the distressing state of confusion that many otherwise healthy people experience when they are exposed to it.

I want finally to point to the irony of Judge Nikki Clark's decision in the Seminole County absentee ballot case. Republicans defamed Judge Clark, as is their habit, because she is a liberal judge. But precisely because she is a liberal judge, she didn't strictly apply the law and precedents that dictate throwing out the absentee votes whose applications had been improperly prepared and illegally tampered with. Instead, and precisely because she is a liberal judge, she tried to be fair.

She tried so hard to be fair that she even suggested that the Democrats hadn't been treated unfairly because they hadn't asked for the same treatment that the Republicans got, even though the treatment that they should supposely have asked for was a felony! A principled conservative judge -- if principled conservative judges exist, as opposed to judges who always rule in favor of conservatives -- would have thrown the book at the defective absentee ballots and imprisoned the people who modified the applications. But Judge Clark, soft on crime, gave them a break.

One small correction. The Supreme Court decision that invented a new protection for states against lawsuits by their citizens under federal law was in June 1999, not a few months ago as I said. The case was Alden vs. Maine . This decision was not a fluke, and the same activism can be found in another decision issued at the same time as Alden, College Savings Bank vs. Florida Prepaid, and in a 1996 case, Seminole Tribe of Florida vs. Florida. (Observe that two of these three cases both came from Florida.)

The big picture couldn't be clearer: Bill Rehnquist got his start as a Republican lawyer agitating against minority voting rights, and now the Rehnquist Court is returning the United States to the "states rights" era before the civil rights movement, and ultimately back to the political world of the Articles of Confederation. The same majority that decided those federalism cases has now thrown the election in Florida, and if they succeed in their rampage then the United States of America will effectively cease to exist.

Here are some more election-related URL's:

Supreme Court order stopping recount

W Stands for Wrongful

circuit court decision in the Seminole case

circuit court decision in the Martin case

Thanks to everyone who contributed.

The enclosed messages are forwarded with permission, and the first one has been reformatted.]

This message was forwarded through the Red Rock Eater News Service (RRE). You are welcome to send the message along to others but please do not use the "redirect" option. For information about RRE, including instructions for (un)subscribing, see http://dlis.gseis.ucla.edu/people/pagre/rre.html

Date: Fri, 08 Dec 2000 18:57:23 +0000
From: John Wilson
Subject: Florida legislature's illegal session


Stolen Elections
The Florida Legislature Wants to Name the Next President. Here's Why It's Illegal.

By John K. Wilson

If Tom Feeney has his way, he'll get to decide the next President of the United States. As the Speaker of the Florida House of Representatives, Feeney is making a unique claim: that the Florida legislature has the power to overrule the courts and the popular vote, and appoint its own slate of electors. Florida Gov. Jeb Bush, who knows that the Republican-controlled legislature would elect his brother, has endorsed the idea as "the right thing to do".

There's only one problem with Feeney's plan: it's blatantly illegal. Both Federal law and Florida law explicitly prohibit the legislature from declaring the next president.

On Dec. 8, the Florida House and Senate made history by becoming the first state legislature ever to meet for the purpose of overturning the people's vote in a presidential election. The Florida legislature plans to declare George W. Bush the winner on Dec. 13, and even if court rulings make this unnecessary, the precedent of legislators illegally overruling a popular vote is a serious threat to democracy.

Feeney hired conservative Harvard law professors Charles Fried and Einer Elhauge, along with attorney Roger Magnuson, to argue this notion before a Republican-controlled joint legislative committee that issued a report Nov. 28 endorsing the idea. The lawyers also filed an amicus brief in the U.S. Supreme Court and Florida Supreme Court cases, asking the Court to endorse their dubious belief in legislative supremacy.

Feeney's lawyers argue that the Florida legislature has "an affirmative constitutional duty to appoint Presidential Electors before December 18 to assure Florida is represented in the Electoral College". Feeney's lawyers relied upon shaky justifications for their proposal to allow legislative nullification of a presidential election. The lawyers' brief cited McPherson v. Blacker, an 1892 Supreme Court case which declared that appointing electors is "placed absolutely and wholly with the legislatures of the several states". Unfortunately for Feeney, though, the Florida legislature used its absolute authority to give Florida courts the final power to determine the winner of a contested election.

Florida's state law directly contradicts the idea that the legislature rather than the judiciary can determine the final outcome. Section 102.168 (8) of Florida law declares about a contested election, "The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances".

Nothing could be clearer: the courts, not the legislators, have the power under Florida law to make a final determination. Because the Florida Supreme Court has the authority to overrule a circuit court in accordance with Florida law, the judiciary is the ultimate arbiter.

Just to be perfectly clear, Florida statutes explicitly declare that there is only one exception to this rule, under 102.171, "to hear any contest of the election of a member to either house of the Legislature". For the presidential electors, the legislature is utterly powerless to intervene under its own laws.

Of course, the Florida legislature does have the power to change the rules. In fact, under the U.S. Constitution, the Florida legislature can eliminate elections and simply appoint the presidential electors directly. However, Federal law 3 U.S.C. 1, under Section 5, explicitly outlaws changing the election system after the vote in order to affect the outcome. If the Florida legislature tried to appoint electors in place of election procedures, there would an immediate legal basis for having these electors thrown out because of the violation of Federal law.

Feeney's lawyers argue, "If a State's election 'has failed to make a choice' that is timely and conforms with pre-existing law, then 3 U.S.C. Sect. 2 recognizes that appointment of Electors by the State Legislature is proper". A superficial reading by someone unfamiliar with legal language might lead to this misreading of Section 2, which states: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct".

However, this provision exists not to allow state legislators to overturn a contested election, but to provide an option in case of a tie. Because federal law normally bans any election held after the designated election day, this provision is necessary to allow a re-vote to break a tie. The word "appointed" in federal law refers to voters electing a candidate, not the legislature declaring a winner. Since Florida has certified George W. Bush as the choice, there is no case where the state fails to make a choice. If courts reverse this decision and Al Gore is declared the winner, there will be two choices, not zero. Yale law professor Bruce Ackerman, noting that the Florida legislature's plans were illegal, told its special committee, "Florida will not have failed to act, but will have acted twice. This two choice situation has also been foreseen in the federal statutes--which have elaborate provisions for regulating the way in which the claims of rival slates should be assessed under the Constitution".

Feeney's claim is so radical, it even argued to the U.S. Supreme Court that "departures" from standards in previous elections on manual recounts by county canvassing boards "require the Florida Legislature to appoint Electors". By arguing, the Florida legislature could overrule the popular vote in almost any situation where an election is contested. Indeed, the constitutional argument that state legislatures can appoint electors means that any legislature could overrule a popular vote at any time.

To justify his decision, Feeney quoted James Madison's statement in Federalist No. 45: "Without the intervention of the State Legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will perhaps in most cases of themselves determine it". But the Federalist Papers were propaganda, not constitutional analysis. Madison's attempt to butter up the state legislators was never intended to allow them to seize power after an election. The president can't be elected without the state legislatures because the legislators pass the state election laws. Madison said that the state legislatures might determine the election because he expected legislatures to appoint electors (seven out of ten states did in the first presidential election in 1788), not because they would unilaterally overrule a public vote required under state law. When state law demands an election, as it does in Florida, the legislature is powerless to overturn it.

Republicans are pushing for this legislative nullification of the Florida election because they're terrified that a court-ordered recount will hand the election to Gore. Federal law forces Congress to accept state election results only if they are finalized six days before the electors vote (on Dec. 18 this year). If the Florida electors remain in dispute by Dec. 12, the Florida could end up sending a contested slate of electors' votes to Congress. In that case, the Senate (which is now split 50/50 and until Jan. 21 will be controlled by the Democrats, with Vice-President Gore casting a tie-breaking vote) and the Republican House would disagree if there is a party-line vote, and then under Title 3 of Federal law, Section 1.15, the decision on contested electors would go to the slate certified by the Governor of the state.

However, if the Florida courts overturn the Bush election before Dec. 18, Florida's Secretary of State and the Governor are obligated under Florida law to sign a new certification removing the old victor and declaring a new one. If this happens, Jeb Bush's own signature would provide the tie-breaking vote to take the presidential election away from his brother. Perhaps that's why Jeb is so anxious to have the Florida legislature do "the right thing" for his sibling, even if it means violating its own laws.

Date: Sat, 09 Dec 2000 08:49:23 -0800 (PST)
From: "jane c."
Subject: Jane's handy gatorgate links 12/9/00



feel free to copy and cross-post
Salon.com - Now What? In the weirdest election of all
time, it's fitting that Al Gore could end up casting a
saving vote for himself -- and Jeb Bush could hold his
brother's fate in his hands.

Judge Sanders-Saul's wife reveals hizzoner dearly
loved his black nanny, and other foot-in-mouth


The fiasco in Florida is a tormenting drama in which
the audience keeps thinking it will know the answer to
the riddle and never quite does. But no playwright
could have imagined the scenario of this election.


Slate: Take It Like a Mandate - The Myth of a Bush
Mandate By William Saletan

Imagine George Orwell on "Hardball." If he could get a
word in, he might have an interesting thought or two
regarding the debasement of political language -- the
further debasement, that is -- that has occurred
during the weeks of No Decision 2000.

NYTimes: Supreme Court Again Faces a State Issue
By LINDA GREENHOUSE As Gov. George W. Bush's lawyers
raced back to the United States Supreme Court tonight,
the contours of the final legal battle of this
tortuous presidential election were fairly clear.

The Nation: As the Speaker of the Florida House of
Representatives, Tom Feeney is making a unique claim:
that the Florida legislature has the power to overrule
the courts and the popular vote and appoint its own
slate of electors. There's only one problem with
Feeney's plan: It's blatantly illegal. Both federal
law and Florida law explicitly prohibit the
legislature from declaring the next President.

latimes.com: Blacks wary of Jeb Bush's election oversight


FISHY OUTCOME: The Legend of Nixon's 1960 Loss
Was the Election Stolen from Him?

Palm Beach Post: Experts see high court's ruling
language as crafty

Inner Circle Likely to Extend Its Orbit to a Bush
White House


UK Guardian
Following in Daddy's footsteps - Blood is more
important than talent at the court of George II


When Gov. George W. Bush named Dick Cheney on Sunday
to prepare the transition to the White House, he fit
him into the role he had always had in mind for his
running mate: running things.


The Atlanta Mobile Register: Lawyers argue legality of
party workers filling blanks


Steve Kirsch, a Republican dot-com millionaire, is the
man bankrolling the lawyers charging fraud in the GOP
absentee ballot controversy in two Florida counties.
He explains why.


*************ACTIVIST LINKS*******************

The Florida Republican leadership needs to know that
the rest of the country does not want the Florida
legislature to select our next President.Tell the
Florida legislature to respect the courts and honor
each voter and each vote.


Respectfully submitted,
Jane C.

Date: Fri, 8 Dec 2000 18:32:23 -0800 (PST)
From: "jane c."
Subject: Jane's handy gator-gate links 12/8/00

****JANE'S HANDY GATOR-GATE LINKS 12/8/00*******

Please feel free to copy and cross post:

Revenge of the Democratic governors? If the Florida
Legislature picks its electors, others states could
follow suit -- and give the election to Al

David Bois: Poster Boy for the Lamest Generation Gets
Battered But N.Y. Lawyers Say They Couldn't Have
Done Better

Today on "The Connection" Heather Gerkin and Lani
Guiner discuss the right to vote:

errata: The Connection is on in NYC at NPR AM

Sic 'em: Republican's Bash Seminole County Judge
Nikki Clark

Do courts give results legitimacy?

"The Nation" magazine gets tough w/ electoral college:

Wasted labor - The Democrats told AFL-CIO activists in
Florida to take affidavits and act "nice," while the
GOP mobilized its troops and got tough -- and won the
political battle.

Eliminating fraud -- or Democrats? Florida's
controversial crusade to purge its voter rolls has
revived an old partisan debate: Can states crack down
on fraud without disqualifying eligible voters?

NY Times 12/8 Storm Over Election Casts Cloud on
Prospects of the Younger Bush - By RICHARD L. BERKE

The Last Green Mile By THOMAS L. FRIEDMAN With Gov.
George W. Bush likely to be declared president, a
couple of things are becoming clear: Bush voters are
the winners. Gore voters are the losers. And all those
people who voted for Ralph Nader are the really big

For more information about exit poll results -

For a more detailed discussion on Social Security and
Gore's late surge,see this article in the Weekly
Standard from the Nov. 27 issue:

For info on the CNN-Larry Flynt item, see

Complaint filed against Bush DWI tipster:

Expose on Bush family:


Dem activists pressuring electors to switch votes to

a Bush-connected media company is under FBI
investigation for the delivery of a videotape of Bush
for the debates to a Gore campaign advisor. This
happened while
the debates were still going on in October.


TALLAHASSEE, Fla. (AP) - On the eve of a special
session with
national implications, a leader of Florida's
Legislature acknowledged Thursday he has received
advice from intermediaries of George W. Bush as
lawmakers move toward appointing a slate of electors
loyal to the Republican
presidential candidate.

*********ACTIVIST LINKS*******

MSNBC anchor Brian Williams has been airing audio of
Rush Limbaugh's hate radio shows with absolutely no
commentary to
balance it out as part of their Election 2000 coverage

email : thenews@msnbc.com
Phone : 1-888-MSNBCUSA

If you wish to support the recount committee, you can do so on line at:

- Florida Vote News

boycott Florida petition

Leadership of the Florida State Senate

John McKay
President of the Senate

Ginny Brown-Waite
President Pro Tempore

James King, Jr.
Senate Majority Leader

Leadership of the Florida State House

Tom Feeney
Speaker of the House

Mike Fasano
House Majority Leader


Governor Jeb Bush
Governor Jeb Bush
Secretary of State Katherine Harris
Attorney General Bob Butterworth

Speaker of the House Tom Feeney (Rep)
Speaker of the House Tom Feeney (Rep)
Speaker of the House Tom Feeney (Rep)
House of Representatives Majority Office - Republican
House of Representatives Minority Office - Democratic

FL Senator Mandy Dawson-White (Dem)
FL Senator Buddy Dyer (Dem)
FL Senator Buddy Dyer (Dem)
FL Senator Steve Geller (Dem)
FL Senator Ron Klein (Dem)
FL Senator Bill Myers (Rep)
FL Senator Tom Rossin (Dem)
FL Senator Jim Scott (Rep)
FL Senator Daniel Webster (Rep)
FL Senator Daniel Webster (Rep)

FL Representative Bill Andrews (Rep)
FL Representative Fred Brummer (Rep)
FL Representative Lee Constantine (Rep)
FL Representative Lee Constantine (Rep)
FL Representative Lois Frankel (Dem)
FL Representative Addie Greene (Dem)
FL Representative Ed Healey (Dem)
FL Representative Suzanne Jacobs (Dem)
FL Representative Randy Johnson (Rep)
FL Representative Randy Johnson (Rep)
FL Representative Curt Levine (Dem)
FL Representative Sharon Merchant (Rep)
FL Representative Rick Minton (Dem)
FL Representative Rick Minton (Dem)
FL Representative Bill Posey (Rep)
FL Representative Alzo Reddick (Dem)
FL Representative Debby Sanderson (Rep)
FL Representative Bob Starks (Rep)
FL Representative Bob Starks (Rep)
FL Representative Bill Sublette (Rep)
FL Representative Bill Sublette (Rep)
FL Representative Tom Warner (Rep)


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