8 of 10 people found the following review helpful
- Published on Amazon.com
Judge Richard Posner performs an invaluable service by cutting through the Cherminsky and Sunstein left-wing legal clutter surrounding Florida Election 2000. Judge Posner delivers clear legal analysis that is still accessible to the educated layperson. His overall conclusions: the Florida vote was fair, the Florida supreme court was partisan, and the U.S. Supreme Court was as well, although it had practical reasons for being so. Specific points include:
* First and foremost, Posner correctly places most of the blame for the fiasco where it's most deserving, on the Florida supreme court. To those who complain of judicial politicization of the U.S. Supreme Court, just remember where it began: with seven Democratic Party hacks in robes in Tallahassee. Posner slams the Palm Beach County Canvassing Board v. Harris decision (both the original and on remand) several times. Highlights include:
>>> The Florida court used inexcusably poor reasoning and logic in saying that a voter's error in completing a punch card ballot is a form of "error in vote tabulation" (pp 95, 116, 122). This reasoning is a violation not just of the plain meaning of F.S. 102.166(5) (2000), but also a violation of common sense. As Posner notes, no allegation was ever made of an error in a punch card reader (pp 62, 86).
>>> The court also created a false dilemma by saying that the statute allowing a protest for seven days after the election conflicted with the overall seven-day deadline to certify returns (p 105). Posner correctly points out that (a) if a candidate were so stupid as to wait for seven days before protesting that "the losing candidate has himself to blame for not acting faster," (b) in any event, such a delay in protest did not in fact occur with Gore so the court never should have addressed the issue in the first place and (c) a recount to review an error in the vote tabulation machines (as opposed to a review of the vote itself) could be completed within the time frame set forth in F.S. 102.166 (2000), so the court only found this dilemma by misinterpreting what an "error in the vote tabulation" was in the first place. See F.S. 102.166(3)(a) (2000).
>>> The court used a vague state constitutional declaration of "power is inherent to the people" (pp 100, 104-107) to ignore specific statutory language directing the Secretary of State to make determinations regarding election matters as set forth in F.S. 97.012 (2000), in order to give Gore more time than he was authorized under the Florida statute. By doing so, the court was not only usurping legislative power by changing the plain words of the statute, it was also probably violating Art. II Sec. 2 cl. 2 of the Constitution (pp 127, 153, 155).
>>> The court ignored elemental principles of statutory construction when examining F.S. 102.112 (2000) (the Department of State *may* ignore untimely returns) and F.S. 102.111 (2000) (the DOS *shall* ignore untimely returns). It is a common understanding in the legal field that when two statutes have only a potential conflict, a court is to interpret them so that they do not. In this case, the Secretary of State acted in a way that created no conflict (she ignored late returns) therefore there was no need to claim a contradiction, then leverage that supposed contradiction into giving Gore 12 more days.
>>> Recapping, Posner points out the obvious: "The U.S. Supreme Court was criticized for intervening when it knew what effect its intervention would have on the outcome of the election. But it would not have intervened had the same principle discouraged the Florida supreme court from intervening when it knew that the effect of its intervention could only be to increase the likelihood that Gore would become president" (p 160).
Other points Posner brings out include:
* The hypocrisy of Democrats proclaiming "every vote must count" while simultaneously (a) trying to disenfranchise Seminole and Martin County voters who did not have voter ID numbers due to a computer glitch (pp 98-99), (b) requesting a recount only in four counties (why not all? Shouldn't every vote count?) and (c) requesting a recount of only undervotes, not overvotes (does every vote count or not?).
* The standard to review voters' intent on punch cards that was employed by the Democrat-run Broward Canvassing Board was indefensible as a matter of law and common sense (pp 58-59, 124). The standard, which consisted of a dimpled chad, a mark or even an indentation next to the chad, supposedly was good enough to determine voter intent. Posner points out that indentations could arise from the card being passed through the machine or by being bent during handling, and that a dimpled chad could arise from voters starting to vote but changing their minds after realizing that they were voting for the wrong person. The statutory standard, even after the Florida supreme court butchered the statute, is whether there is "a clear indication of the intent of the voter." F.S. 101.5614(5) (2000). How can anyone with a straight face say a mark or indentation alongside a chad, or even a dimpled chad, is a "clear indication"? Let's not be silly. The sheer outrageousness of such a biased, subjective and manipulable standard is, in Posner's opinion, why David Boies never suggested it as a standard in his legal maneuvering (p 195).
On this point Posner alludes to something (p 131) but is too diplomatic to say it explicitly: the Broward Canvassing Board could very well have altered punch cards under its standard to make a card look like a Gore vote. For example, a Democrat operative handling the punch card could press his fingernail on the chad or alongside it to make it look like a stylus had marked it. This could be done very subtly and even someone nearby would not be able to observe the fraud. Would you put it past the Democratic operatives to do something like that? I wouldn't.
* Bush v. Gore should have been decided on Art. II Sec. 1 cl. 2 grounds (i.e., the specific grant of authority in the Constitution that directs state legislatures to appoint its electors), and not equal protection grounds that ultimately decided the case.
* The U.S. Supreme Court voted 7-2, not 5-4, that the Florida supreme court's mandate for a standardless recount was unconstitutional (pp 127, 216). The Supreme Court only split 5-4 on whether enough time existed to have the Florida supreme court order a recount conforming to a constitutional standard (p 136).
* The U.S. Supreme Court did not command Congress to count Florida's electoral votes. Congress, had it wished, could have refused to count them (p 185). The Florida state legislature could have determined not to seat them. The U.S. Supreme Court did not select a president. Electors did and Congress let them.
* Posner calls out liberal law professors and constitutional scholars on their inconsistency on judicial activism. "There are respectable schools of jurisprudence according to which Bush v. Gore could be shown to be unprincipled, even usurpative. But can liberals enroll in any of these schools without repudiating much of the constitutional law forged by the Supreme Court in the Warren and Burger eras? I don't think so" (p 189).
Side note 1. To a certain extent this book, and the Bush v. Gore decision, have been buttressed and confirmed by later events. First, a consortium of mainstream media newspapers, hardly a group favorable to Bush, concluded after tabulating Florida ballots over a period of months that had Gore gotten his way legally in Palm Beach v. Harris, Bush would still have won (NYT, Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote, Nov. 12, 2001). Second, the disenfranchisement of Michigan and Florida voters by the Democratic National Committee in their 2008 primaries shows that the concern Democrats had in 2000 about disenfranchisement was, how to put it -- "tactical." (That and Nevada Democratic caucus rules that allow the candidate with fewer votes to actually receive more delegates -- now where have we heard about that problem before? Hmmm.) Third, and perhaps most importantly, Bush won reelection in 2004 with 51% of the popular vote -- a slim mandate but a mandate nonetheless. If the American voters had truly been as outraged at a "stolen" election as the left-wing talking heads proclaimed them to be, then we'd have a President Kerry right now.
Side note 2. Posner also puts forward a decent case for legal pragmatism in this book. I've read another of his books (An Affair of State) and a legal opinion (ethnicity of D.I.s at youth boot camps) where he flogs the pragmatic idea. I was suspicious of legal pragmatism. Here's an example why: if a Taliban says girls shouldn't go to school at all and a secular progressive says that they should go to school at least through the twelfth grade, then a pragmatist would say "let's split the difference and educate them through the six grade." Mr. Posner disabuses me of that notion of pragmatism by pointing out that it should only be employed when opposing merits are more or less equal. Well OK then.
Side note 3. I would like to point out one thing that Posner missed in all this, which goes with the butterfly ballot issue to a certain extent. That is that the MSM called Florida for Gore at 7:00 p.m. EST and didn't put it back into the "too close to call" category for close to an hour. When the MSM pulled out all the stops and called Florida for their boy, the heavily-Republican Florida Panhandle voters (6:00 p.m. CST) who heard this were dissuaded from voting, thinking that Bush had already lost. So while it's probably true that more people in Florida on Nov. 7, 2000 *attempted* to vote for Gore (because of the butterfly ballot), it's also probably true that more Floridians woke up that morning *intending* to vote for Bush.