>; Tue, 21 Nov 2000 12:48:58 -0600 Date: Tue, 21 Nov 2000 12:48:58 -0600 Message-Id: <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] From: David Theroux <[EMAIL PROTECTED]> Reply-to: [EMAIL PROTECTED] X-Mailer: Perl Powered Socket Mailer Subject: THE LIGHTHOUSE: November 20, 2000 THE LIGHTHOUSE "Enlightening Ideas for Public Policy..." VOL. 2, ISSUE 45 November 20, 2000 Welcome to The Lighthouse, the e-mail newsletter of The Independent Institute, the non-partisan, public policy research organization <http://www.independent.org>. We provide you with updates of the Institute's current research publications, events and media programs. ------------------------------------------------------------- IN THIS WEEK'S ISSUE: 1. Are Soldiers Phantom Voters? 2. Bush, Gore, and the Courts 3. Lessons of the New Economy ------------------------------------------------------------- ARE SOLDIERS PHANTOM VOTERS? To test your knowledge of the Election 2000 trivia, can you identify who uttered the following? "[O]verseas ballots have not been counted. It's likely that there are more than enough oversea ballots to make up the scant difference between these two candidates.... The Presidency of the United States should not be determined by technicalities. It needs to be determined by the will of the people." If you guessed George W. Bush or James Baker, guess again. The statement was made on Nov. 10 by Al Gore's campaign chairman, William Daley (see http://www.independent.org/tii/lighthouse/LHLink2-45-1.html). Now the Gore campaign is seeking to disqualify more than 1,500 absentee ballots submitted by military personnel who are Florida residents, but stationed overseas. This latest attempt to exclude absentee ballots cast by military personnel is not without precedent. Immediately following the 1996 general election, Texas Rural Legal Aid, a grant recipient of the taxpayer-funded Legal Services Corporation, sued to block the counting of some 800 ballots cast by military personnel -- a total greater than the margin of victory between candidates in two local races -- claiming these "phantom voters" diluted the votes of bona fide local residents. After freezing the election of the two candidates until June 1997, the federal district court judge dissolved the preliminary injunction and declared the challenged candidates favored by the majority of voters, including those casting absentee ballots, the winners. Also relevant here is the Uniformed and Overseas Citizens Absentee Voting Act, which provides, among other things, that "[b]alloting materials . . . shall be carried expeditiously and free of postage," which may explain the lack of a postmark on so many military ballots. See 39 U.S.C. 3406. Furthermore, Congress has enacted statutory penalties, including fines and/or imprisonment for "[w]hoever knowingly deprives or attempts to deprive any person of a right" under the Act. (See 18 U.S.C. 608 <http://www.independent.org/tii/lighthouse/LHLink2-45-2.html>.) The latest word from the Florida Attorney General's Office: "Canvassing boards should count overseas ballots which are from qualified military electors and which bear no postmark if the ballot is signed and dated no later than the date of the election and are otherwise proper." (See http://www.independent.org/tii/lighthouse/LHLink2-45-3.html.) For a skeptical look at elections, see the Independent Institute book, BEYOND POLITICS: Markets, Welfare and the Failure of Bureaucracy, by William C. Mitchell and Randy T. Simmons, at http://www.independent.org/tii/lighthouse/LHLink2-45-4.html. Also see Sigmund Knag's article, "The Almighty, Impotent State; or, the Crisis of Authority" (THE INDEPENDENT REVIEW, Winter 1997), at http://www.independent.org/tii/lighthouse/LHLink2-45-5.html. ------------------------------------------------------------ BUSH, GORE, AND THE COURTS Will the legal wrangling in Florida determine the presidential election? The pundits have had a field day anticipating the next moves in the election imbroglio. However, they have failed to recognize that the courts cannot act as final arbiter of the election without the consent of the legislative branch. It is the legislature, not the courts, which has this power, according to Rob Latham, public affairs director of The Independent Institute. Courts are generally reluctant to interfere with political questions, claiming lack of "justiciability" under the "political questions doctrine." (The term was coined in an 1849 decision, Luther v. Borden, stemming from a rebellion in Rhode Island.) The courts have narrowed the doctrine's applicability over the years, but the current election dispute is precisely the type of case to which it applies, argues Latham. Hence, if Gore strategists hope to keep Florida's electoral votes from being counted by Congress, they may find their hopes dashed. Under federal law (Title III, Section 2 of the U.S. Code) and the Twelfth Amendment, Florida's Republican-controlled legislature can appoint electors to the Electoral College. Further, under federal law (Title III, Section 15 of the U.S. Code), Congress could reject Florida's electoral votes if they are not "regularly given," and elect a new president on its own initiative. "Congress also has other options," writes Latham. "Some include rejecting 'faithless electors' -- a term describing those electors who have pledged their vote to one candidate and actually vote for another candidate. Others envision a President Strom Thurmond, or a President George W. Bush by appointing him first to Speaker of the House of Representatives. "True, the members in both Congress and Florida's legislature could pay a political price for what the mainstream media would label as 'partisan' if they, instead of the Florida Supreme Court or Palm Beach County Commissioner Carol Roberts, decided the outcome of the presidential race. "But the fact remains that Al Gore won't accede to the Presidency in 2001 -- with the power to appoint both federal judges and justices to the U.S. Supreme Court for the next four years -- without the acquiescence of Congress and the Florida legislature," Latham concludes. For more, see "Presidents, Courts, and the 'Political Questions Doctrine,'" by J. Robert Latham, at http://www.independent.org/tii/lighthouse/LHLink2-45-6.html. For Luther v. Borden, 48 U.S. 1 (1849), see http://www.independent.org/tii/lighthouse/LHLink2-45-7.html. For more on the relationship between Congress and the Supreme Court, see Bernard Siegan's insightful review of AGAINST THE IMPERIAL JUDICIARY: The Supreme Court vs. the Sovereignty of the People, by Matthew J. Franck, at http://www.independent.org/tii/lighthouse/LHLink2-45-8.html. ------------------------------------------------------------ NEW POLICIES FOR THE NEW ECONOMY In non-election news, Alex Tabarrok, research director of The Independent Institute, spoke recently at "AdamSmith.com: Free Enterprise and the New Economy," a conference in Berkeley, Calif., sponsored by the Intercollegiate Studies Institute. "What distinguishes the New Economy from the old is not new technology per se but rather the greater importance of ideas," said Tabarrok. "The core industries of the New Economy -- microchips, software and telecommunications, as well as the products of leading sectors like health care, entertainment, and pharmaceuticals -- are all based on ideas." While the New Economy does not warrant new restrictions on economic liberty, as the pressure groups would like, it does offer new lessons to guide public policy -- lessons that stress the economics of ideas, according to Tabarrok. Among them: 1) Intellectual property rights are the engine of innovation in the New Economy. 2) Market share is not a good indicator of anti-consumer monopoly power. 3) Free trade is more important than ever. 4) The "digital divide" is about the failure of government schools not the failure of the New Economy. 5) Venture capital beats industrial policy any day. For details, see "New Policies for the New Economy," by Alex Tabarrok, at http://www.independent.org/tii/lighthouse/LHLink2-45-9.html. Also see, "No-tech Rules for the High-tech Economy," by Stephen Margolis, at http://www.independent.org/tii/lighthouse/LHLink2-45-10.html. Also see the transcript of the Independent Policy Forums, "The Future of Freedom and High Technology," by Virginia Postrel, at http://www.independent.org/tii/lighthouse/LHLink2-45-11.html and "Simple Rules for Open Markets," by Richard Epstein, at http://www.independent.org/tii/lighthouse/LHLink2-45-12.html. "Does the New Economy Require a Free Economy?" is the theme of the 2001 Garvey Fellowship Contest (for college students). For more information, see http://www.independent.org/tii/lighthouse/LHLink2-45-13.html. ------------------------------------------------------------- If you enjoy receiving THE LIGHTHOUSE ... please help us support it. Your supporting Independent Associate Membership enables us to reach thousands of other people. So, please make a contribution to The Independent Institute. See http://www.independent.org/tii/lighthouse/LHLink2-45-14.html. to donate, or contact Ms. Priscilla Busch by phone at 510-632-1366 x105, fax to 510-568-6040, email to <[EMAIL PROTECTED]>, or snail mail to The Independent Institute, 100 Swan Way, Oakland, CA 94621-1428. All contributions are tax-deductible. 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