Politics

Author: Richard R. Tryon and others

Professors misleading on the rule of law
San Juan Star Friday, Feb. 16, 2001
Nat Henthoff Commentary
Nationally renowned authority on the First Amendment and the Bill of Rights.

A full page ad in the New York Times signed by 585 law professors at 115 American law schools— joined Jesse Jackson in declaring that George W. Bush is an illegitimate president because the U.S. Supreme Court was guilty, the ad read, of “Stopping the Vote Count in Florida.”
This horde of independent academic minds makes me wonder about the quality of teaching in many of our law schools. The incensed law professors accuse the Supreme Court, for instance, of “suppressing the facts to make the Bush government seem more legitimate.”
And on Feb. 4, Jeffrey Rosen — a professor at the George Washington University law school, legal affairs editor of The New Republic, and a frequent television commentator — chimed in, accusing the majority of the court in Bush vs. Gore of “greatly damaging the Court’s reputation” in the 5 - 4 vote.
What, then, are the actual facts — and Supreme Court precedents — that the 585 law professors themselves suppressed in their ad, and that professor Rosen chooses to overlook?
First, there were two parts to Bush vs. Gore. In the first part, seven — not five — justices found a constitutional violation of “equal protection of the laws” in the chaos of Florida’s presidential election.
One of those seven justices was David Souter. He joined the four-justice minority in saying that the recount should continue. Nonetheless, he wrote the following about the remarkably different standards used for counting votes in Florida: “I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.”
The Supreme Court’s Bush vs. Gore decision came down on Dec.12. Even if the Court had allowed further ballot counting under uniform standards, the absolute deadline would have been Dec.18, as set by Congress — the date when the presidential electors were to give their votes on “the same day throughout the United States.”
Stuart Taylor, a former Supreme Court reporter for The New York Times, pointed out in the National Journal that this is what would have had to take place between Dec.12 and Dec.18: The Florida courts would have had “to hear testimony and opposing arguments before setting a uniform statewide chad-counting standard. Then the vote counters would have had to inspect the condition of the more than 60,000 undervote ballots while allowing time for attorneys for Bush and Gore to record objections.”
Then there would have had to have been time for “ballot-by-ballot judicial review and the inevitable appeals up to the Supreme Court. It would have left no time to inspect the more than 100,000 so-called over- votes (let alone the rest of the state’s 6 million ballots).”
Furthermore, considering how many of the disputed ballots had already been handled and rehandled, how many of them would have been degraded by then?
In addition, the 585 law professors and professor Rosen neglected to mention that in the historic one-man one-vote decision (Reynolds vs. Sims), the Supreme Court of the United States underlined the 14th Amendment’s guarantee of “equal protection of the laws” as being basic to our fundamental right to vote.
And in Anderson vs. Celebrezze (1983), the Court ruled that a state’s election law must be nondiscriminatory with regard to both state and federal offices. That means equal protection of the laws. Writing for the court, John Paul Stevens — a bitter dissenter in Bush vs. Gore — stated: “The State has a less important interest in regulating statewide or local elections than in presidential elections” because “the president and vice-president are the only elected officials who represent all the voters in the nation.”
In his accusatory New York Times article, Jeffrey Rosen — who was almost hysterically indignant on National Public Radio the day the decision in Bush vs. Gore was handed down — charged that “the one branch of national government that still commanded respect in a fractious society is now as weakened and discredited as the others.”
He also wrote, unwittingly describing himselfand the 585 law professors, that “once you take a side in a polarized situation, you are likely to feel increasingly committed to it, even if the legal arguments on behalf of your opinion turn out not to be very convincing.” And the professor quoted William Jefferson Clinton as an authority on Bush vs. Gore: “That was one of the worst Supreme Court decisions in my lifetime,” Clinton told him, “and one of the five worst decisions of all time.”
Now that is a most impressive, dispassionate, scholarly analysis to be cited by law professor Rosen. How come the 585 other law professors left the famously credible Mr. Clinton out of their advertisement?

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights.


Commentary by Richard R. Tryon
Feb. 16, 2001

One would believe from the common misperception of the medias daily representations that it is simply true to know that Pres. Bush won the election by a single vote! Via a 5-4 decision of the U.S. Supreme Court we are led to believe that Gore had the election ‘stolen’ by an improper legal action that was acceptable to five of nine Supreme Court Justices.

Will the history books of the future teach this as ‘truth’ to our grandchildren? Will the voters in four years be bombarded with the notion that now is the time to get even?

So, what should the history text books say? What should the media be saying now and in four years?

Taking the questions in inverse order:
1. The media, that is to say the army of people who get to mold public opinion through their spoken and written words: What will they say and write that can be absorbed in twenty second sound bytes, or the time of average attention span of the typical American voter? They will continue to revel in their ignorance of what Nat Henthoff has pointed out. Even if the Court had ruled 4-5 on the first issue regarding the need to try to divine voter intent on punched cards in the next four days, the 7-2 decision on the equal protection charge would have done the same job. Why then does the media dwell on the 5-4 rather than the 7-2 vote? Media bias is the only answer and yes, it is more than just political preference. It is the unique property of modern American journalism that telling the whole truth is secondary. Making the story is primary! A 5-4 vote is more uncertain than a 7-2 count. That sells more soap or whatever it is that pays those who build the story and sell it. I see no way to expect the current media ‘professionals’ to get ‘hooked on truth’ without a better leading example in the White House than the one now trying to tell us that he is not a liar over how and why he pardoned Marc Rich, a fugitive from justice that owed millions in taxes, and failed to be a loyal citizen.

The next four years will be telling in terms of the attitude towards honesty in reporting as we have an opportunity to view a new President who appears to be a man of honesty, integrity, and a possessor of a will to mediate and bring opponents together. If he is successful, and if the economy avoids any disaster, the media may change its tune. Will it be from education and acceptance of honest leadership without ‘hanky panky’ in and out of the oval office?  Or from a simple need of the media to ride with a winner?

That leaves the historians and the law professors who will play an influencial part in leading the historians to present their arguments and reporting of what such institutions as the U.S. Supreme Court did or did not do to help the half of America’s eligible voters, who did NOT vote, see how the other half had their votes counted correctly or not.

A further reflection is found in a Jan 6, 2001 commentary that follows:

Leslie Asseo of the Associated Press in Washington, D.C. filed a story published widely on Jan 6, 2001 reportedly aimed at updating the nation on the outcome in the Supreme Court of the land as to the disposition of the last three Florida election related legal challenges regarding the presidential election of last Nov. 6, 2000.

While the report does inform the reader of the disposition of these relatively trivial cases that had to be handled in the course of events, the writer chose this opportunity to report in a manner not out of sorts with similar comments of many other writers, that the Supreme Court had decided earlier in a “bitterly divided 5-4 decision that said there wasn’t enough time to resolve problems wiht varying standards for hand-counting votes.” She next notes that Gore conceded the next day.

The inference is clear and she would hope that historians will show that this election was decided, not by the voters of America, or even of Florida, but by one Supreme Court Justice! This idea is patently false and very misleading. It should have been stricken from the story by the editors at the AP.

Why? Because the Supreme Court also voted 7-2 on a related issue and that vote was just as controlling to the outcome of the election as was the closer vote off 5-4 over another issue. Readers of the actual Supreme Court decisions, and those knowledgeable as to how the Supreme Court works will know that the Justices are far more capable of considering reasoned and complicated legal arguments than they are of reportorial rhetoric of a political nature. They do disagree with one another in a respectful manner. There position is not to ask themselves first, what is my political persuasion and then vote accordingly!

Here are some of the words from one of the opinions:

“But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court’s textual analysis shows. We will not parse that analysis here, except to note that the principal provision of the election code on which it relied, §101.5614(5), was, as the Chief Justice pointed out in his dissent from Harris II, entirely irrelevant.”

The historians, therefore, and the general public now, should come to recognize, as I think most do, that this election was not stolen by one Supreme Court Justice for President-elect George W. Bush.
Although certain parts of the media prefer to place emphasis on the 5-4 decision regarding one of the several issues that the Bush forces put before it, the fact is that if they had ignored a request for a finding on that issue, another would have left the media to dwell only on a 7-2 vote.
Here is what the Chief Justice wrote in the majority opinion of the legal issues presented:

“Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of REF="http://www.law.cornell.edu/uscode/3/5.shtml">3 U.S.C. § 5 Justice Breyer’s proposed remedy–remanding 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).”

And at the end, the Court said:

“None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”

These words not withstanding, we are likely to see for a long time to come an array of people- good American citizens- who will remain contentious, even more than did their Republican opponents in 1960, who still think that the father of William Daley, the Gore campaign director, stole the election for Kennedy by use of patently fraudulent tactics, not just ‘divining voter intent’ of dimples on voter ballot cards.

Such persons will remain convinced that the Justices of the Supreme Court of Florida, even when they voted 4-3 in favor of the Gore desires with the Chief Justice and the two most senior other justices opposed, that this Court had it right and the U.S. Supreme Court was wrong. It is very hard to read the U.S. Supreme Court decisions and spot evidences of political overtones on either side. However, the Court did show evidence of a difference between those who would stretch the meaning of the Constitution to try to make the Florida Court position be correct, even though they offered no practical manner for a timely determination of voter intent with a clear evidence that such activity would not be in violation of the principal of equal protection, so cherished by these same legal minds.

In the writer’s opinion the decision, had it gone the other way, would have been very destructive to America. If the Court had called for a massive manual count of all Florida ballots, contending that the machines designed to do the job had failed in a way that denied the rights of any one voter to be heard, while it would be possible to manually look, not at the voter and seek evidence of his/her intent, but at the lifeless piece of paper, and calculate with pencil and paper the correct score in several days time. Such an activity, no matter how honestly attempted would fly in the face of all reason and knowledge about what performance would be expected.

If such a last minute and massive effort had won the approval of the U.S. Supreme Court, the damage to the national character would have been far worse. How?

We would have first of all seen the agony of the growing frustration on both sides of the election be multiplied into an uncontrollable scene. We came very close to arousing the level of passion to bring mob rule into the picture. Jesse Jackson was ready to lead that mob! The opportunity for media frenzy was great.

As the nation would have to come to perceive, had Gore’s legal leader David Boies, been able to defeat Bush in the U.S. Supreme Court, the counting, arguing, and appeal process would have taken months, not days and the fact is the Constitution has other provisions that would have put the election results into the Congress to determine. God only knows if the stage would have been set for the final results to have been later overturned- no matter who won the Congressional or Court battles.

It is not really necessary to labor the point further as the nation was spared such an ugly means of resolution. The pictures of even the good Democrat Judge in Palm Beach, trying to divine voter intent by looking at the punched cards for signs of marks or effort that could be counted by hand more accurately than by machine, will linger for as long as memories last or are reinforced by pictures in text books.

What is important to remember is that an election was one that showed the weakness of the voting machinery, not just in Florida, but elsewhere as well. Efforts will be taken and we can expect new voting equipment to be soon sold all over America, with Federal funds picking up the bill.

More importantly, the lesson of this election is yet to be reported. What really matters is to determine what scholars and leaders will come to conclude about the significance of a President named George W. Bush vs the what might have been one named Al Gore. The trend of the approach of the years 1993-2000 could have been continued with an Al Gore as president. It is certainly already clearly different under the Bush team. In four years we may see a larger turnout and better election equipment to count, what really matters will be the will of the people.

The election in 2004 will do one of two things: Either the Gore approach to saving Americans from themselves will win in a crushing landslide that will destroy individualism for scores of years; or a surprising Pres. Bush will demonstrate that a large majority have come to understand that compassionate conservatism looks after all Americans in a proper way, while promoting opportunity for all to prosper in a global economy. If the Democrats run a true socialist as a liberal and win, it will make the stolen Russian revolution of 1918 seem trivial by comparison.

Eight months later, the NY Times published the results of its elaborate study of the handling of the Democrats contesting of the count of absentee ballots. They have done their best to show that had the Florida election laws been followed, without control by the 1982 consent decree to live by Federal standards, Gore might have been able to disqualify many absentee ballots which lacked postmarks, for example, because the government's APO system did not need them and the voter did not know how to require them!

Fortunatley, the WSJ published the following, but it will be lost to the many who look to the NY Times for the truth!

The Myth of a Stolen Election

By Bob Zelnick. Mr. Zelnick is a professor of
journalism at Boston University and research fellow at
the Hoover Institution, which will publish his book on the
Florida contest next month.

Readers of the New York Times were treated on Sunday to a massive report claiming that hundreds of overseas Florida ballots cast in violation of state law were nonetheless counted by election officials under pressure from representatives of George W. Bush. While even the Times stops short of claiming that inclusion of the"flawed" votes spelled the difference between victory and defeat for Mr. Bush, the report is clearly meant to provide ammunition for those who question the legitimacy of his victory and presidency.

Considering the vast research that went into the report, there are stunning critical gaps. One involves counting overseas military ballots with no postmark. Another involves counting special federal ballots mailed by voters who offered no "proof" that they had earlier tried to obtain
state absentee ballots. In both cases the Times suggests
state law was violated.

What the story fails to report is that federal law required
Florida to count these votes. Following the presidential
election of 1980, the U.S. Justice Department brought suit against Florida charging that the state's laws and procedures unduly burdened overseas military personnel seeking to vote. In August 1982, Florida signed a consent
decree, acknowledging deficiencies and pledging reform.

One of the problems was a state law prohibiting the counting of overseas military ballots unless they were mailed with an Army Post Office, Fleet Post Office or foreign postmark. Personnel on maneuvers or in combat get their mail out in a variety of ways and ought not to be disenfranchised if, say, Bosnian postal authorities treat their mail carelessly. Accordingly, Florida amended its Administrative Code to require only that the ballot be"postmarked or signed and dated no later than the date of the Federal election." The change became part of the consent decree, giving it precedence over any inconsistent provision in state law.

Regarding requests for overseas ballots, several states had laws similar to Florida's. Congress addressed this situation in 1986 with the Uniformed and Overseas Citizens Absentee Voting Act. This permits overseas voters who have not received state ballots to cast a generic federal ballot. To protect against fraud, the overseas voter must sign an oath stating "that my application for a regular state absentee ballot was mailed in time to be received 30 days prior to this election." The oath is a substitute for physical proof of the effort to obtain a state ballot.

To the Gore team, the absentee ballots to be counted on Nov. 17, 2000, were a lethal threat. Bob Dole, who lost Florida in 1996, had won a hefty majority of absentee ballots and Mr. Bush was expected to prevail by 2-1. On Nov. 15, Gore campaign attorney Mark Herron circulated a memo to Democratic lawyers across the state providing a five-point guide to throwing out military votes. The first instructed Gore lawyers to "Determine that the voter affirmatively requested an overseas ballot," the intent being to exclude federal ballots supported only by the oath.

Item number five on the Herron list stated that only those
ballots mailed with an APO, FPO, or foreign postmark should be considered valid. He acknowledged that his instructions were inconsistent with the Florida Administrative Code. But there was not a word of this in the Times.

The Gore team was successful in scuttling military votes,
particularly in Democratic counties. A total of 356 overseas military ballots were disallowed due to postmark challenges and another 157 because there was no independent record of requests for state absentee ballots. Combined with other causes, a total of 788 military absentee ballots were rejected. In Bush counties, 29% of overseas ballots were disallowed, but the figure was 60% in Gore counties; in pliant Broward, the Gore kill rate was 77%. Compared with these totals, the number of voters documented by the Times who cast illegal ballots -- e.g., by omitting to include a witness, or mailing envelopes postmarked inside the U.S. -- seems positively puny.

When the Herron memo became public, the Bush team erupted in protest. Democrats, from Joseph Lieberman on down, retreated. Florida Attorney General Robert A. Butterworth issued a memorandum saying that "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."

Mr. Bush's team then filed suit against seven county canvassing boards. On Dec. 8, U.S. District Judge Lacey
A. Collier found that any state statute requiring an APO,
FPO or foreign postmark "conflicts with federal law." The
judge also held: "We must presume . . . that if the election
official does not have the application on record, it is
because of a problem with the overseas mail system or
their own clerical error." The generic federal ballot
supported by an oath had to be counted.

At the time, Mr. Bush's lawyers expected the decision to
increase his victory margin by up to 500 votes, providing
an additional buffer against any last-minute recount mandated by the Florida Supreme Court. As we know, the recount was terminated by the U.S. Supreme Court four days later, putting Mr. Bush in the White House, but without the additional absentee military votes.

Through journalistic alchemy, absentee votes required by
federal law to be counted have now become "flawed ballots" serving to further delegitimize the victory. We can expect more of the same in weeks ahead when Sen. Christopher Dodd (D., Conn.) takes his Rules Committee on an excursion through election reform. The myth of a stolen election gallops on, impervious to fact, reason and law.

Commentary by
Richard R. Tryon
July 19, 2001

To discerning readers, it should not be hard to figure out that the NY Times spent a lot of time and money to gather the data presented in its ‘big story’ aimed at showing that Bush supporters worked harder than Gore’s to get the foreign GI absentee ballots to count.

Nothing was said in the NY Times story about the court cases filed by the Gore team aimed at keeping those absentee ballots out of the count, even though out of the other side of their mouth poured the simplistic mantra of let every vote count! That efforts are still being made to show that Bush ‘stole’ the election is not surprising. By the same token, you will probably never read in the NY Times that the Supreme Court voted 7-2 to give a key issue to Bush that would have won the election action taken by the Court even if the other issue had been lost by 4-5 instead of having been won by 5-4! It sounds more like it was a ‘put-up’ job if you talk about a one vote swing.

That Gore forces controlled the Florida legal process is also ignored. It took honest Democratic judges in Florida to vote in favor of the Bush position. Only the Florida Supreme Court’s four junior judges outvoted the Chief Justice and the two senior judges who knew that their Court action would not get past the U.S. Supreme Court. Do you think that the NY Times would accuse those four junior judges of ‘selling-out’? Of course not! Those younger judges were the ones with the correct ruling is far more likely to be the position of the Times.

The Appellate Judge in Tallahassee, a loyal Democrat, nonetheless was the key man to use his head instead of his heart to determine that the high priced lawyer David DuBois did not have the best or even an honest argument. There are many good Democrats in the U.S. but unfortunately those in NYC tend to be convinced that they alone know what is best for all of us and they want to take care to “save us from ourselves”.

They may get the chance in the next election if we update the voting system so that voters need not have to know how to read....just point at a picture and press a button!