-Caveat Lector-
Justice Denied
<http://www.ourfuture.org/readarticle.asp?ID=702>
by Robert L. Borosage, Campaign For America's Future
12/13/00
In a brazen decision, a partisan majority of five Supreme Court justices
trampled precedent, law and common sense to reach the result that they
wanted: blocking a fair count of the votes in Florida. As Mr. Justice
Scalia indicated in his revealing opinion justifying the five when they
stopped the count, the five partisans assumed that if the votes were
counted Al Gore would win Florida and the election. This would do
"irreparable harm," Justice Scalia said in an understatement, to the
"legitimacy" of George W. Bush taking office. Losing generally has that
effect. And so, the five partisan conservative activists chose instead to
sacrifice the Court's reputation and besmirch its tradition in order to
protect Gov. Bush's usurpation.
It is particularly outrageous that the five conservative activists summoned
up a newfound concern for equal protection to justify their lawless
decision. Somehow the common sense standard that election officials should
count ballots by hand looking to see if there is a mark that would
indicate how the voter cast his or her vote a standard that has sufficed
in handcounts determining elections for years raised equal protection
concerns. The court was in essence ruling that if a machine did not count a
ballot for whatever idiosyncratic reason that ballot need not be counted.
But the reality of Florida and many other states is that precincts with
poor and minority voters get the
oldest and least accurate machines. If you were wealthy and white in
Florida, you voted on machines that
rejected far fewer ballots than if you were poor or black. This was not
"voter error," or more offensively,
Republican claims of voter ignorance. It was machine error, and
institutionalized discrimination against black and poor voters. This was
the true equal protection concern that the Supreme Court should have been
focused on. It is understandable why George Bush did not want these
rejected votes counted: the poor and minorities tend to vote against him.
But it is inconceivable that the Supreme Court would block the counting of
votes, given the discriminatory distribution of modern as against outmoded
machines. There was ample precedent to order a full count and ample time to
do so. Instead the Court elevated an arbitrary deadline that made a count
impossible. It stopped the count to avoid "irreparable harm" to George W.
Bush. And then it ruled that its stay had done irreparable harm not just to
Al Gore, but to the voters whose votes were never counted.
Justice Stevens was surely right that a big loser in this case was the
society's confidence in the judge as a neutral arbiter above politics. But
the bigger loser was our democracy itself. A candidate who lost across the
country and in Florida will capture the office of the presidency by having
employed every means necessary from a partisan election official, to
Republican paid demonstrators, to backstage threats, to a partisan
legislature, to a partisan 5 person majority on the Supreme Court, to block
a fair count of the votes.
This will be remembered. It will be remembered by African Americans whose
voting rights were trampled by a Court that once prided itself on defending
them. It will be remembered by Democrats who had the election stolen from them.
But the true danger is that it will be remembered by the Bush crowd
themselves. Aware that they lost, they will work tirelessly to weaken the
coalition against them, even as they seek to expand their own. We are
likely to witness a desperate return to race bait, class based wedge
politics with the vicious edge that was displayed in Florida. And it is
clear that there is no law, no rule, no standard of decency which they will
allow to limit them in their pursuits.
Progressives must insure that this injustice does not stand. An immediate
reform drive should be launched to challenge the institutionalized
discrimination against working people and minorities in the election
system. In January, a massive voter registration drive should be launched,
fueled by the outrage of Florida. Al Gore may be forced to concede, but we
should not. Bush should be challenged from day one, his political
machinations revealed, his class and racial politics exposed. The Florida
vote should be investigated, particularly the detailed allegations of
purposeful suppression of the black vote. Democrats should stand up against
any attempt of Bush to institutionalize this conservative usurpation
through judicial or regulatory appointments.
Democratic Hall of Shame
Whatever you thought of Al Gore as a candidate or a leader, he deserved
support as he fought to have the votes counted. It is truly unforgivable
that some Democratic politicians did not have the basic decency or simple
courtesy to allow him to digest the Court's opinion and make his own
strategic choices before scrambling to get press attention by calling for
him to concede. Wanting to look like statesmen, they acted like knaves. The
most visible nominees to this hall of infamy were Senator Robert
Torricelli, Rep. James Moran, and Ed Rendell, former mayor of Philadelphia.
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