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COUP WATCH: 'No Time For Democracy,' Supreme Court Says

by Paul H. Riosenberg Thursday, Dec. 14, 2000 at 2:31 PM

Ever since the unanimous decision in Brown v. Board of Education conservatives have been trying mightily to discredit the Supreme Court. On Tuesday, after 46 years of endless struggle, they finally succeded.

error COUP WATCH: 'No Time For Democracy,' Supreme Court Says

By Paul Rosenberg

Ever since the unanimous decision in Brown v. Board of Education conservatives have been trying mightily to discredit the Supreme Court. On Tuesday, after 46 years of endless struggle, they finally succeded.

Other Supreme Court decisions have been more purely evil--Dred Scott and Plessy v. Ferguson come immediately to mind--but none has ever managed to combine such sweeping evil with such a tangled web of sheer perversity. Consider these few samples of its depraved indifference to justice, logic, democracy and common sense:

The Court wrote, "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."

Yet this is precisely what the Court has done. Indeed, it is the very essence of the decision: it decided to prevent the counting of what are certainly many legal votes, thus depriving those who cast those votes of any equal protection guarantee. This action has left football fans across the country wondering, "Since when is delay-of-game worth 7 points?"

Why did the Court decide that recounts should stop--rejecting a remedy proposed by Justice Breyer? Read it yourself:

"Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. 5, JUSTICE BREYER' s proposed remedyremanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an "appropriate" order authorized by Fla. Stat. 102.168(8) (2000)."

In other words, Equal Protection is such a solemn principle that it must prevent an imperfect recount that would provide Equal Protection for some of those whose votes weren't counted by machine, but it's not such an important principle that it can overcome the presumed intent of the Florida Legislature in meeting an arbitrary deadline. Instead, we must deny Equal Protection for all of those whose votes weren't counted by machine (or by hand in some counties.)

Two crucial questions immediately arise:

    (1) If Equal Protection is driving concern in this decision, how can anything override--not just constrain, but overide--it? After all, here is the US Supreme Court pontificating about the supreme importance of Equal Protection--it is, supposedly, the determining consideration in the case. It was the only Bush argument the Court answered directly in the affirmative, "With respect to the equal protection question, we find a violation of the Equal Protection Clause." So how can anything override that concern?

    (2) How important is the presumed intent of the Florida Legislature? Assuming there's a reasonable answer to the first question, how important is this presumed intent? How does it manage to rise to such importance that it can override the cardinal principle of equal protection?
Before examining these questions more deeply, let's briefly consider the overall illogic of this travesty.

The Court found that the recount violated equal protection guarantees, but paid no attention whatsover to the much greater lack of equal protection in the voting systems themselves, which played an enormous role in generating the problematic ballots.

It did note that "This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter."

Unfortunate! The number of missing votes for President varied from 0.18% in Leon County (with a system that automatically rejected double votes and returned the ballot to the voter) to 12.40% in Franklin County--69 times as much! Palm Beach had 6.43% missing votes, with almost 2/3--4.40%--over-votes, a six-fold increase over 1996. If those voters had enjoyed Leon County-style equal protection at the ballot box, Gore would have won by several thousand votes on November 7, and this whole sorry saga would never have happened.

What did the Supreme Court have to say about such an eggregious denial of equal protection at the ballot box? Nothing. Except of course to wash its hands of the matter: "After the current counting, it is likely legislative bodies nation-wide will examine ways to improve the mechanisms and machinery for voting."

The Court ignored the overwhelming unfairness of the election itself--a 6800% discrepancy in unequal treatment--for the simple reason that this would doom the political goal that was the sole purpose of the decision. It ignored these vast differences at the voting booth despite saying, with a straight face, "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another." Of course, that's exactly what the Florida electoral system does by a factor 69-to-1.

On Democracy Now this morning Harvard law professor Lani Guinier, who had not yet read the decision, expressed the hope that their might be a silver lining in the Court's perverse use of Equal Protection, which might be extended to secure redress that would the kinds of disparities just mentioned.

But the Court went out of its way to foreclose that possibility, when it wrote, "The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

In short, it was a designer decision, intended solely to deliver the election to George W. Bush, cloaked in the highest principles, but drawn so narrowly that it would have no beneficial effect whatsoever for anyone in the future. Let us turn now to a deeper look at our two questions.

(1) If Equal Protection is driving concern in this decision, how can anything override--not just constrain, but overide--it? After all, here is the US Supreme Court pontificating about the supreme importance of Equal Protection--it is, supposedly, the determining consideration in the case. It was the only Bush argument the Court answered directly in the affirmative, "With respect to the equal protection question, we find a violation of the Equal Protection Clause." So how can anything override that concern?

There are traditional ways of answering this question, and the citation of precedents is standard practice in justifying such action. However, in this case the Court simply ignored this basic contradiction, presumably because there is no precedent for it's core decision. If there had been some precedent, it surely would have been cited. The Court did cite precedents, of course, but none of them went to the crucial question of justifying this ludicrous, narrowly-limited, results-oriented abuse of Equal Protection.

Justice Brennan, the leading theoretician of the Warren Court, developed a sensible, coherent scheme for addressing issues of individual rights across a wide body of law. It consisted of using different kinds of "balancing tests" according to the status of the rights and rights-holders, who had to be clearly recognized and identified in order to weigh their claims against competing interests. Using Brennan's approach, one would have a predetermined framework for comparing the interests of the Florida Legislature to that of voters possibly deprived of Equal Protection--if indeed they could be sensible thought of as a class of rights holders. The alleged rights and interests of these voters would have to be substantially similar to those used in the balancing test to overturn the recount process established by the Florida Supreme Court.

Brennen's schema--the very essence of 'judicial activism' and 'legislating from the bench' in the parlance of liberal-hating critics--serves to emphasize, if not demand, a high degree of consistency in legal interpretation and decisionmaking--the exact opposite of the arbuitrariness that liberal judges are routinely charged with. The absence of such a schema allowed the conservatives justices to run wild with their opinion, without any fine-grained standard to hold them accountable.

In fact, if one were to use Brennen's schema, Bush's original Equal Protection claim would look dubious, if not absurd on its face. Why? First of all, because Bush is claiming concern for equal protection on behalf of people entirely unknown, and is arguing--supposedly on their behalf, though without their invitation--that they should be entirely deprived of their rights. Without Bush's suit, at least some of the undercounted voters would have their votes counted, thus extended Equal Protection to them vis-a-vis voters whose votes were already counted.. With Bush's suit none of these voters would enjoy such protection. The only equality gained under Bush's suit is the equally total disenfranchisement of all the voters on whose behalf he is supposedly suing.

The use of Brennen's schema makes it virtually impossible to hide this fundamental contradiction. But if one does away with standard practices and interpretive schemas, then each case can be arbitrarily dealt with in whatever manner one wants. In stage one, Equal Protection trumps everything else. In stage two, it disappears without a trace. Writing an opinion becomes simply a matter of figuring out how to get the results you want. The law is your own private toolkit for them. There are no overarching concerns to contend with. Each step of the way is governed by its own set of rules, invoked especially for the occassion. It's obvious that if Equal Protection were an overriding concern in this case it could not simply vanish in less than a paragraph, but that's exactly what happened.

A second problem that Brennan's schema would expose in Bush's claim is the difficulty of knowing whose rights he is supposedly trying to protect. Conservatives are generally apopleptic over the notions of standing and individual rights. Bush was arguing for neither. He was not one of the hypothetical voters being denied equal protection, so where did he get the legal standing to argue on their behalf? What's more, he couldn't even produce a single such voter. Arguably there are such voters, but no one knows who any of them are. Thus, Bush must be arguing for the right of such hypothetical voters as a group. Such "group rights" are allegedly anathema for conservatives--yet another conservative idol smashed in this endless orgy of power-grabbing.

But this "group" is the strangest one imagineable. Not only don't we have any idea who's a member of it, but we have no idea how to characterize them. Liberals have argued for "group rights" on the grounds that individuals deprived of rights as group members--minorities, women, the disabled, etc.--can only be effectively protected on those same grounds. If you're disrciminated against as a black man, you deserve protection as a black man. This is not instead of being protected as an American (or even just a resident), rather it is the mode of your protection as an American.

In contrast to this normal example under the law, Bush's "group" has no identifiable characteristics. There is no identifiable basis for discrimination depriving them of their rights, even if someone wanted to. Hence there's also no identifyiable basis for protecting them. Bush can defend the rights of individual voters by challenging their exclusion, which he would presumably do based on whether their vote would count for him. When there's such a direct, straightforward way to defend the rights of specific individual voters, why is there a need for a more roundabout way to supposedly 'defend the rights' of an amorphous group of voters--by ultimately depriving them of their votes?

The Brennen schema requires us to think consistently across all areas of rights protection, and when we do so we clearly see how abitrary and unusual Bush's alleged group of rights-holders is. It's impossible to distinguish who's a member of this group as opposed to being a member of the group that's allegedly being discriminated in favor of. But this latter group is simply those who are being afforded equal protection vis-a-vis those whose votes have already been counted.

This hypothetical division of missing votes introduces considerable confusion that's not present if we simply think of all those voters who cast missing votes as a class, either on a statewide, or a more refined (county- or precint-level or voting-system type) basis. This larger group can be identified numberically, it can analyzed statistically, and extremely high-probabilty statements can be made about it. We know, for example, that this group contains an extremely large number of minority voters. The barriers they are now encountering to having their votes count are part of a long history, which is the specific reason that equal protection voting rights law has developed in the first place.

This larger group of all voters whose votes were uncounted has significant, disproportionate overlap with an historically protected class of voters--minorities. It can almost entirely be attributed to differences in voting systems (missing votes accounted for only 0.18% in Leon County compared to 2.9% statewide, and a high of 12.4% in Franklin County), which in turn reflect issues of resource allocation, and attitudes toward voters institutionalized into various procedures that were the cause of much confusion and many complaints on Election Day. This larger group has every indication of passing the test as a protected class in Brennan's schema, one can only dispute the level of scrutiny that should be used in weighing its rights.

In contrast, the amorphous, hypothetical group of voters that the Court sought to protect--by depriving others of their rights and doing nothing positive for them--gives no indication of being a protected class. Conservatives are quite fond of such groups of people. They routinely insist that anyone with any grievance--except white male Republicans--is a member of just such a group, and that the only appropriate remedy for them is to "just get over it." "Life's not fair," they explain, and that's the end of it. But not this time. Why? Because it's necessary in order to elect George W. Bush. And that's all there really is to it.

(2) How important is the presumed intent of the Florida Legislature? Assuming there's a reasonable answer to the first question--despite everything I've already said--how important is this presumed intent? How does it manage to rise to such importance that it can override the cardinal principle of equal protection?

The Court's implicit answer is that it doesn't matter. It's the law, and that's that. This is really all we have to go on, since the Court failed to provide any explanation of why this presumed intent is so important. It said nothing by way of explanation. The presumption is that Florida law must not be tampered with. The only citation is to "an 'appropriate' order authorized by Fla. Stat. 102.168(8) (2000)." In other words, the Court now finds that Fla. Stat. 102.168(8) (2000) trumps the 14th Amendment!

We must be very clear here. There is nothing special, much less sacred about December 12 and the safe-harbor benefits of 3 U. S. C. 5. In 1960, Hawaii certified its electors for Richard Nixon in mid-November, which was immediately challneged. The challenge significantly narrowed Nixon's already-slim lead. As historian David Greenberg explains in Salon (December 13, 2000):

"After some legal wrangling, state Circuit Judge Ronald B. Jamieson, a Democrat, on Dec. 13 orders a recount of the 34 precincts in which the totals failed to match up. On the first day, 12 precincts are recounted, netting a single additional vote for Kennedy. Nixon's lead stands at 140."

"At that point, Republicans call attention to the "Safe Harbor" provision in federal law requiring states to choose their electors six days before the Electoral College meets. Hawaii's attorney general calls on Jamieson to halt the recount. Jamieson denies the request."

"By the time the 34 precincts are recounted on Dec. 15, Nixon's lead stands at 50 votes. Now persuaded of the unreliability of the original counts, Jamieson orders new tallies in still more precincts -- after which Kennedy regains the lead, by 21 votes, on Dec. 17."

Kennedy went on to win Hawaii. Despite the earlier certification of Nixon's victory, he got Hawaii's electoral votes. The Supreme Court came nowhere near the case. Thus, there is no precedent for stopping the election contest process because of the December 12 "safe harbor" provision. To the contrary, precedent supports getting the vote right, not getting it fast.

Besides, plenty of states are remarkably unconcerned about the "safe harbor" provision. According to US Representative Alcee Hasatings (D-FL), on "Democracy Now" this morning, only 29 states submitted their lists of electors by yesterday, Dec. 12. Thus, it's obvious that the December 12 date is very far from being a monumental deadline. Its importance derives from just one place according to this decision:

"Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. 5."

That's right. There is nothing explicit in Florida State law that demands a halt to recouints by December 12. It's an interpretation (by the US Supreme Court) of an interpretation (by the Florida Supreme Court) in a vacated judgement--a judgement that no longer has the force of law!

After all the Republican railing against the Florida Supreme Court "making new law," it is precisely such "new law" that forms the foundation of this decision! But it's not even that! A mere interpretation of intent doesn't necessarily translate into the uncontestable, Constitutional meaning of a law. It's not at all clear how much weight the Florida Supreme Court itself would put on this supposed intent, particularly if it were asked to do so in light of a Supreme Court ruling that would cause this interpretation to collide with the 14th Amendment.

If this were an honest decision, it would remand to the Florida Supreme Court, allowing them to further clarify this point. The Florida Supreme Court would then have two perfectly good options that Court completely ignores: (1) They could harden this interpretation of intent into the meaning of the law, and find it unconstitutional under Florida law. This is an unlikely choice, which the US Supreme Court would probably overturn in its new pretzel-logic tradition. (2) They could soften this interpretation by emphasizing the differnce between implicit intent--a hoped-for result--and explicit demand--a required result. This would be completely consistent with the conservative/Republican demand that the Florida Supreme Court make no "new law" (and leave that to Rhenquist, Scalia & Co.)

Clearly, so long as the Florida Court itself was available to clarify this crucial point, and so long as it had various different options available, it was utterly indefensible for the Supreme Court to usurp its power and responsibility to interpret Florida law.

Equally clearly, the Court's decision deals with this in a single sentence precisely because there was nothing possible to say in defense of it. Any further discussion or explantion would only make it all the more obvious that the entire decision rests on absolutely nothing. Better to say it quickly in a whisper, and hope that no one notices. More than anything else, this sleight-of-hand clearly demonstates that this presumed presumed intent has no importance whatsoever outside that of justifying the Courts premeditated intent of electing George W. Bush. If it had any importance whatsoever, the Court would surely have spelled it out for us in excruciating detail. Instead it said nothing, because there was nothing to say.

All this is a rather detailed, though hurried, way of saying something that Gwendolyn Mink, Professor of politics at UC Santa Cruz put remarkably well in a statement distributed by the Institute for Public Accuracy, "The Supreme Court not only stole the 2000 election from the people, it deranged our constitutional order. Yesterday's decision was not just about who will be our president; it also was about the relationship of the Court to democracy. In one fell swoop, the majority jettisoned 40 years of jurisprudence promoting electoral equality. It set time limits on democracy, and then let the clock run out. It cried 'equal protection,' and then discarded votes that endanger its desired electoral outcome. It pleaded 'state's rights,' and then knee-capped the Florida State Supreme Court in interpreting state law. It claimed 'due process,' and then gave the Florida legislature carte blanche to trample the people's rights in elections. This is a throwback to the Lochner Era, when the Court contorted the Constitution to suit its economic and political sympathies."

The most quoted passage from the Court's various opinions in this case comes from the conclusion of Justice Stevens' dissent, which reads in full: "Although we may never know with complete certainty the identity of the winner of this year' s Presidential election, the identity of the loser is perfectly clear. It is the Nation' s confidence in the judge as an impartial guardian of the rule of law."

"I respectfully dissent."

No, Justice Stevens, I respectfully dissent. The loser is much more than simply our "confidence." The loser is justice itself--not just confidence in a means for attaining it. The loser is democracy, the loser is all those voters whose votes were denied by Rhenquist & his gang of thieves--including those they and Bush were acting to "protect." The loser is America, and all who believed in her.

After 46 years, the conservatives have finally succeded. They have utterly and completely discredited the Supreme Court. It is heaped in shame as it was in the aftermath of the Dred Scott decision. The Civil War is before us now, not behind us. The only thing that remains uncertain is just how much America will lose at the hands of these five lawless desperados.

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Is it over? Fred Hilgart Thursday, Dec. 14, 2000 at 7:02 PM
The Supreme Court As Art Hugh Stegman Friday, Dec. 15, 2000 at 9:41 AM
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