Election 2000 Notebook

by Doug Payton

Cliché-mania gripped the American media in the wake of the non-outcome of Election Day 2000. It’s a nail-biter, it’s not over ‘til it’s over, it’s a roller-coaster ride, a cliffhanger, history on hold, etc. etc. Here are some of my observations during this, the strangest election in 40 years.

Hollywood could not have come up with a more tense script than what we saw the night of November 7th, 2000. The electoral vote counts climbing almost in sync, Florida goes Gore, then undecided, then (as I was informed by an excited phone call at 2:30am) goes Bush, then (when I woke up the next morning) back in play again. I’m waiting for the Oliver Stone version, when we find out how aliens were involved. Right now, it wouldn’t surprise me too much.

The ballots in Palm Beach were a real sore spot. For more than 15,000 voters, they were too confusing, and the ballots had to be thrown out because they were double-punched.

And that was in 1996.

Yes, the subject of banners and protest and a Jesse Jackson visit this year was a ballot that was redesigned because of confusion last time around. You know, I don’t recall this much uproar about "the people being silenced" in 1996, do you? Was there a re-vote back then that I missed?

Nope, there wasn’t. You see, Florida law presupposes a modicum of intelligence on the voter’s part, either to carefully consider such an important ballot, or to ask for assistance if they have any questions at all. Waiting until after you’ve cast your ballot and then complain to your congressman isn’t one of their legal options.

I don’t hear anyone calling for re-votes in every place someone might have been confused. I mean, if being confused about a ballot is enough to require a do-over, isn’t what’s good for Palm Beach good for the rest of the country? The fact that the election was close in Florida is not a good enough reason to start making exceptions to the law. Double-standards, anyone?

Richard Daley of the Gore campaign has said that the "butterfly" ballot used in Palm Beach is confusing enough that Gore should be awarded the win in Florida. Funny thing is, the same ballot style is used in Chicago, a city near and dear to Mr. Daley’s heart. Sounds like another double-standard.

Before the election, Al Gore was deriding George W. Bush’s promise to nominate only "strict constitutionalists" to the Supreme Court. Al opined on how that term meant, at one point in our history, someone that considered a black man 3/5ths of a person. I suppose that would mean that Al wasn’t a "strict constitutionalist".

Until the election, that is. The "statesman" Al Gore said the Constitution should be followed exactly to determine who the next president should be. Does that now make him a "strict constitutionalist", or someone who’s putting forth yet another double-standard?

However, Al’s mouthpieces belied this façade. Richard Daley said that in order to fulfill the will of the people, the state of Florida should be awarded to Al Gore, even though the initial vote count and the recount both gave Bush more votes. Did Mr. Daley reflect what could be called the "non-constitutionalist" Al Gore? Welcome to the world of triple-standards, or more accurately I believe, non-standards. Democrats are now trying to put a spin, not on news reports or issue debates, but on hard numbers.

This graphic (click on it to display it full-size) illustrates the landmass, county by county, won by Bush, in red, and Gore, in blue. Bush won 2,434 counties (2,427,039 square miles) while Gore won 677 counties (580,134 square miles).

It illustrates perfectly why the Electoral College works so well. I read a paper at the Federal Elections Commission web site explaining the history and pros & cons of the Electoral College, and most of the arguments boil down to this: the Electoral College requires a candidate to have broad support and protects the minority vote. Here's how:

If the popular vote alone determined president, then candidates would only have to campaign in the blue areas in order to win. The rest of the country could be ignored. This would place urban areas far higher in influence than rural areas, or give individual states far more say in who wins.

Or a candidate could appeal to the Caucasian vote and not worry about the minority vote. Even within a state, if a candidate wants to get the electoral votes for a particular state, he must appeal to a broad base of voters within that state, because it's an all-or-nothing outcome.

Or a candidate could appeal to any number of things that divide us in order to win. The Electoral College forces a candidate to get a broad base of national support--geographically, ethnically and ideologically--in order to become President. This helps to legitimize his election even if, on the rare occasion, he doesn't get a plurality of the popular vote.

Interestingly, the paper was written before this election, and its arguments for the Electoral College boost the arguments for a legitimacy to a Bush election even if Gore gets more popular votes.

You can read the document "A Brief History of the Electoral College" at the Federal Election Commission web site. (You'll need to download a program called Adobe Acrobat Reader, which is a free program that allows you to read PDF documents.) I'd really suggest a reading of that paper. It's a very interesting discussion of why the Electoral College was created, and how it's evolved to its present form.

Many people have given their reasons why all these machinations are bad for the country, but let me offer up a few reasons why this year’s election process has been a good thing.

• It’s reaffirmed to this generation that individual votes do count. The point is not that had a specific individual voter stayed home that things would’ve turned out differently; they wouldn’t have. However, it wouldn’t have taken too many people with that same inclination in certain precincts to change the course of the election. Enough snowflakes can cause an avalanche.
• More folks have learned about how the Electoral College works and why it was implemented. Well, I’m speaking for myself, because I’ve certainly learned quite a bit and tried to pass that information on, but I imagine curiosity has risen quite sharply.
• Apparently, this new awareness of the reasons for the Electoral College is not a universal phenomenon, and another good thing to come out of all this is the exposure of hypocrisy over it. Hillary Clinton, who’s vowed to introduce legislation to abolish it, certainly hasn’t learned much. For someone who’s supposedly so interested in minority interests, it should be noted that she is now against the means by which those minority voices can be heard in a presidential election. It should also be noted that she didn’t seem to have a problem with the Electoral College when it helped put her husband Bill in the Oval Office with 43% of the popular vote, but now that it could put a (gasp) Republican in office with 49%, it needs to be abolished.
• As much as other countries (and some in this country) would like to compare all this legal wrangling to a banana republic, there’s not been gunfire or tires burning in the streets or rioting or any of those things that happen in many other places where the election doesn’t go the way some want it. As rough as this was to go through, it’s a walk in the park comparatively speaking. The transfer of power from one administration to another is still a peaceful one.

11/21/00

From an Associated Press story dated Tuesday, Nov. 21, 2000; 10:36 p.m. EST by Linda Deutsch headlined "Top Florida Court OKs Late Recounts".

TALLAHASSEE, Fla. –– Florida's Supreme Court ruled unanimously Tuesday night that manual recounts may continue in Florida's contested presidential election until Sunday or Monday, when a final statewide vote must be certified….

The court thus rejected Secretary of State Katherine Harris' insistence that a deadline prevented her from accepting amended returns after Nov. 14.

"Twenty-five years ago, this court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases," the court ruled.

"We consistently have adhered to the principle that the will of the people is the paramount consideration."

The court's decision said Harris must accept amended vote totals until Sunday at 5 p.m. – if her office is open – or else Monday at 9 a.m.

There were several problems with this ruling:

• The Florida Supreme Court scored a rare legal "trifecta", as I saw it put. Firstly, they managed to rewrite the law that says "one week after the election" (referring to the date by which all recounts must be completed by existing Florida law at the time of the election) to say "about three weeks after the election". This trumps the Legislative branch. Secondly, they substituted their discretion for that of the Florida Secretary of State, who, by law, has that discretion. This trumps the Executive branch. And thirdly, prior to their hearing of the case in question they issued an injunction saying that the manual recounts should continue. Since no plaintiff had specifically asked that that be done, they trumped even their own Judicial branch of government by doing this unilaterally. This sort of action creates dangerous precedent for future judgments.
• The court’s opinion regarded Katherine Harris’ adherence to the Florida statute as "hyper-technical reliance". The phrase "one week after the election" requires no such delicate parsing of words; it’s as plain as the Legislature can possibly make it. Now, it appears, Florida government can redefine what the meaning of "is" is at a moment’s notice.
• The will of the people is expressed in many ways. One way is through popular ballot for President. Another way is through their elected state representatives. Those representatives wrote the "one week after the election" statute. That, then, is the will of the people as well. The well-established will of the people, communicated via legislation, is now being overturned by a miniscule minority of people who couldn’t punch a hole in a ballot card. This decision makes the phrase "the will of the people is the paramount consideration" sound awfully hollow.
• If the will of the people can only truly be determined by hand-counting ballots, then it’s time to dispense with automated counting equipment nationwide and just go back to drawing X’s on a piece of paper.
• The following day, Miami-Dade county decided that there wasn’t enough time, even with the new deadline, to finish the recount, so they stuck with the most recent machine count. Given the court’s "paramount consideration" for the will of the voter over mere reliance on the law as written, this raises even more inconsistencies. The main reason that the November 14th date was overruled was that the Democrats complained that some counties couldn’t finish hand recounting in time. Well, some still can’t. So are we to believe that the November 14th was wrong but November 26th is right? On what basis? What does the court mean by "paramount consideration" of the will of the people if there are still ballots that won’t have been hand recounted by the 26th? If hand recounting stops on the 26th, is that just a "hyper-technical reliance" on a Florida Supreme Court ruling?

It’s funny how Al Gore was all for letting the local canvassing boards determine how to proceed as long as they determined that they’d proceed the way he wanted them to. But as soon as Miami-Dade county said they wouldn’t recount the ballots in the wake of the Florida Supreme Court decision, Al was right on top of them with a lawsuit to force them to recount. You see, Al’s for the little guy, as long as the little guy is doing what Al tells him to do.

When the Florida Supreme Court denied his request without prejudice to force Miami-Dade to keep counting, a Gore aid said to the media, "It’s like the Florida Supreme Court doesn’t even exist." When I heard that comment on my car radio, I just had to laugh out loud. Here the court rewrote the election rules for them, and they still have the audacity to say that it’s as if the court doesn’t exist. Too funny.

And consider their request. They got the state Supreme Court to create a deadline of November 26th for the hand-recounts, but Miami-Dade said that it would take them until December 1st. Why then would the Gore campaign sue to force them to continue the recount if it couldn’t possibly be finished in time? Simple: it would set up the perfect opportunity to force yet another extension of the deadline.

11/24/00

"This is a time to honor the rule of law, not surrender to the rule of the mob." - Vice-Presidential candidate Joe Lieberman.

Joe was talking about the protests over the hand recounts that were trying to divine "voter intent" from indentations on a card. He was strangely silent, however, about protests over voter ineptness with respect to the butterfly ballots. He said nothing about calling off Jesse Jackson’s mob. But when Republicans speak up, only then do the Democrats call for calm.

The thing is, the protests over the "dimpled chads" is entirely legitimate, because the rules for judging them were so much in flux on a day-to-day basis, they couldn’t possibly get an accurate or consistent count or determination of vote. But as Florida only allows for hand-counting when there are blatant examples evident of voter fraud or ballot machine malfunction, the Democrat protests succeeded in imposing the rule of the mob over the rule of law on the ballot-counting process. Once again, we see a Democrat blatantly imposing a double-standard.

Republican protestors were described as thugs and that their protests intimidated the all-Democrat canvassing board. But the canvassing board themselves did not explain away their vote to stop recounting in that partisan manner. David Leahy, one of the board members told CNN, "I was not intimidated. My vote had nothing to with the protests. It simply had to do with not enough time." The Democrats calling protestors "thugs" are conveniently ignoring this.

And the strangest thing about all this is that, while the news media dutifully parrotted back the Democrats' charge that the protestors were trying to shut down the recount, that's not what was happening at all. They were protesting the fact that the recounters had decided to disregard Florida's Sunshine law, which states that the recount had to occur in plain view in an open door session. Instead, the Democrat canvassing board took the disputed ballots to a room with no windows, and excluded everyone else. The protestors were simply asserting their rights under law, and given the nature of this whole election, were understandably peeved when they were thrown out of the process. (Most of the protestors were official observers.) This move belied their party's motivation of wanting to provide fairness and follow the rule of laws.

"We need a fair count of the ballots in question, and that must include freedom from intimidation. That is what the American people deserve and that is what our democracy is all about." Sure Joe. Just explain where you were two weeks ago on this issue.

11/27/00

It’s quite interesting to hear the pundits, the reporters and the Democrats say how the Supreme Court appeal by the Bush campaign is contrary to their stand on states’ rights. It’s as if all these folks don’t realize that there are federal laws that govern a federal election. The states do have wide autonomy with respect to how elections are carried out, but this particular situation is, after all, of national importance. The election of a president is not some big government imposition, like national speed limits or land use regulations or any of a myriad of extra-constitutional straightjackets imposed on the states by the federal government. This is a federal election governed, ultimately, by federal laws and the U.S. Constitution itself.

If this were an election to the Florida state senate that was in dispute, the federal courts would have no business in it. And I tend to agree with the Supreme Court’s decision not to hear arguments from the Bush campaign on whether or not the hand counting of ballots was fair. That’s a matter for the Florida legislature to take up (and I’m sure they will).

States’ rights should be upheld far more than they have been under liberal administrations. But the election by the states of federal positions is one which has laws to govern it at both levels. When the states make laws, or state courts issue rulings, that violate the U.S. Constitution, calling them on it is not contrary to that principle.

Funny how Al Gore said at the beginning of all this that the Constitution must be followed exactly to determine who the next President will be, and now the Democrats deride the use of the Supreme Court in the election process. How exactly do they think that constitutional questions are to be answered?

Interesting fact: Did you know that the absentee ballots for a state may not be counted at all? If, after all the Election Day ballots are counted, one candidate is ahead by a number greater than the number of absentee ballots, the absentee ballots aren’t even counted and don’t appear in the state’s popular vote results.

Are those people disenfranchised, just like the Palm Beach County voters who couldn’t follow instructions? If so, why aren’t the Democrats worried about them, too? Does "every vote matter" or just every Palm Beach / Broward / Miami-Dade county vote matter? Just remember that when you hear all that patriotic Democrat rhetoric.

Oh, and remember that when Gore folks quote popular vote numbers, too.

12/13/00

What appears to be the death knell for the Gore campaign came last night, and it was quite a scene to watch. On every major network, correspondents were out in the cold, reading a 65 page Supreme Court decision, and trying to comment on it on-the-fly. Live TV hadn’t looked this live in quite some time.

As the reporters started reading it, some were saying that it breathed new life into the Gore campaign, since the U.S. Supreme Court was technically remanding the whole thing back to the Florida Supreme Court. However, within minutes they were changing their tune when they realized that the majority opinion was that while the recounts were unconstitutional and would require substantial work to remedy, there wasn’t time to remedy it. The Florida legislature had long ago decided that it would respect the December 12th "safe harbor" deadline, and the U.S. Supreme Court was not going to overrule a state legislature when there wasn’t a constitutional question.

And so, within 30 minutes of the release of the decision, we had almost a microcosm of what happened election night; Gore ahead early, but Bush wins in a squeaker.

After Al Gore managed to win a 12-day extension of the recount phase of the Florida election, it was so strange to hear Peter Jennings comment that it appeared that the Republicans had been successful in "running out the clock". Has Pete been paying attention?

With seven U.S. Supreme Court justices finding constitutional problems with the Florida recount as it stood on the day they halted it, it was quite telling to hear Democrats attack the court for stopping the recount when it did. Their preference in all this was to have an unconstitutional recount continue, and this says volumes about their stand on the rule of law.

The Supreme Court ruled 9-0 to vacate the Florida Supreme Court’s ruling on extending the election certification deadline. They later ruled 7-2 that the recount was unconstitutional. So of all the votes cast by the U.S. Supreme Court, 16 out of 18 were against the Gore campaign. And the Democrats are wringing their hands about a divided Supreme Court?

Among other groups, Jesse Jackson’s Rainbow/Push Coalition has said that they will do their own recount of the Florida votes. However, they’re coming at this with a unique tactic. FOX News read a quote from a Rainbow/Push representative that they would count the votes themselves and prove that Gore won the state. They’ve already decided the outcome before they count the votes, and they’ve thrown aside any pretense of objectivity. They’ve lost their credibility before they’ve even started, because they’ve shown their blatant partisanship and revealed their bias in all this (not that it wasn’t ever in question). Jackson said this wasn’t about Republican and Democrat, but about right and wrong. Unfortunately, his actions are in direct opposition to his high-sounding words.