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101

THE LIBERTARIAN ENTERPRISE
Number 101, December 4, 2000
POLITICS: PROS&CONS

A Few Notes on Election Protests and Contests

by Michael W. Gallagher
mwglaw@msn.com

Special to TLE

As everyone knows, unless they have been living in an igloo near the North Pole, George Bush, fils, has crowned himself President-elect, with the assistance of the Florida Secretary of State (and Bush state campaign manager), Katherine Harris. Bush has enlisted the hit-men formerly employed by his daddy, when he was President, to spin and lie to the American people about the status of the election, his intentions, the actions of the courts, etc. Gore, of course, has his spin-specialists out doing much the same thing.

Since I can't stand either of the candidates, and since the verbal sewage level from both camps -- but particularly from the Bush campaign -- has risen to dizzying heights in recent days, I thought I might say a few more accurate words about a few small parts of this matter.

Bush Big Lie No. 1: While I know some people who read this publication will disagree, there is no, repeat, no evidence that the Florida Supreme Court was driven by political considerations away from a proper decision. Absent real evidence to the contrary, mere party affiliation does not, per se, determine how a justice may decide. The defective, nay, brain-dead "logic" of James Baker, et al, in stating that since the Court was made of Democratic appointees, that somehow the "fix was in", most closely resemble the rantings of a spoiled five year old. Considering that these people want to run a government, it is arrogance approaching insanity to further erode people's confidence in the impartiality of the court system. The statements were reckless and dangerous. But then, this is not about the "good of the nation", no matter what the Bush people might claim. This is about a naked lust for power, power for the sake of power itself.

It will probably further annoy some people when I say that the Florida court was probably right in the way they applied the law to the case at hand. I will repeat that last. They were probably right.

In construing state law, the state Supreme Courts are, well, supreme. Absent contravention of federal law or constitution, the federal courts must defer to the state Supreme Courts on issues of state law. There are, however, basic rules of construction common to most courts, including Florida, as well as prior decisions of these courts, to guide the courts. First rule, look to the controlling law and prior cases on the issue.

The "controlling" statute on the issue is, simply, screwed up. The biggest foul-up is the fact that two important parts of the statute are in direct disagreement. One part of the Florida Election Code mandates that "...(A) candidate, political committee, or political party may request a manual recount any time before the County Canvassing Board certifies the result to the Department (of State) and, if the initial manual recount indicates a significant error, the Board 'shall' conduct a countywide manual recount in certain cases." Palm Beach County Canvassing Board v. Harris, etc., et al (_____ Fl. Sct. ____, 2000), available on the Florida Supreme Court web site at www.flcourts.org .) Section 102.111, which sets forth the general criteria for the State Canvassing Commission, states in part:

102.111 Elections Canvassing Commission
(1) Immediately after certification of any election by the county canvassing board, the results shall be forwarded to the Department of State concerning the election of any federal or state officer. ... If the county returns are not received by the Department of State by 5:00 P.M. of the seventh day following the election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.

Therefore, a candidate can, legally, request a recount, and the law, as written, mandates that the county election board should go forward with it. However, 102.111 would, if you hold to the (self-serving) position advocated by Governor Bush and his hangers-on, prevent the election board from doing what the law demands it do.

Secondly, there is yet another conflict, between 102.111 and section 102.112. Section 102.112, states in part that, "...If the returns are not received by the department by the time specified, such returns may be ignored, and the results on file at the time may be certified by the department." So, one section says that results must be ignored, and another says that the results may be ignored but it isn't mandatory that they be ignored. So much for Bush's claim that the "clear intent" of the law favored his position. In fact, there is no clear intent here.

The Court was forced to reconcile these statutes. Whether anyone likes it or not, it is not the duty of the Court to ascertain whether a group among the public considers one litigant to be the devil incarnate, and thus undeserving of the equal protections of the law. It is the duty of the court to apply the rules of law and construction in such instances. So, which part of the law applies?

"Legislative intent as always is the polestar that guides a court's inquiry into the provisions of the Florida Election Code.39. Where the language of the Code is clear and amenable to a reasonable and logical interpretation, courts are without power to diverge from the intent of the Legislature as expressed in the plain language of the Code. As noted above, however, chapter 102 is unclear concerning both the time limits for submitting the results of a manual recount and the penalties that may be assessed by the Secretary. Palm Beach County Canvassing Board v. Harris, etc., et al, p.24

The court went on to state that it must use the standard, and traditional rules of construction used by American courts to determine this. First, the specific statute controls over a general statute. Section 102.111 as a general statute, "...only tangentially addresses the penalty for returns filed after the statutory date...". On the other hand, 102.112 directly addresses the deadlines and the penalties for late returns. Therefore, under that test, Section 102.112 wins out.

Secondly, the more recent statute wins out over the older act. The theory is that the legislature has had more chance to see the effect of the older statute, and, since the legislature is presumed to know at least something of what they are doing, the more recent statute is controlling over the earlier one. "The more recently enacted provision may be viewed as the clearest and most recent expression of legislative intent." Palm Beach County Canvassing Board v. Harris, etc., et al, at p. 25. Section 102.111 was enacted in 1951. Section 102.112 was enacted in 1989. Section 102.112 wins out again. Again, these tests are not a mere invention of the Florida Supreme Court, but are the normal standards applied by courts throughout the United States. Reconciling legislative idiocies like this is something courts have to do every day.

Most important, however, are the requirements of the Florida constitution, which states as follows:

SECTION I. Political Power. All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.
-- Article I, Sec.1, Fla. Constitution.

This drove the court to the following conclusion:

To the extent that the legislature may enact laws regulating the electoral process, those laws are valid only if they impose no 'unreasonable or unnecessary' restraints on the right of sufferage:...Because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens' right to vote.

The court finally concluded that the State of Florida had only limited authority of ignore votes. "Ignoring the county's returns is a drastic measure and is appropriate only if the returns are submitted to the Department so late that their inclusion will compromise his integrity of the electoral process..."

Based on prior cases before the Florida courts, (some cited cases going back as far as 1940), the legal practice in Florida as it is in many places is to allow votes to be counted, if at all possible. The right being suspended, or violated, by Ms. Harris, et al, is not that of Misters Gore or Bush, but that of the voters themselves. Therefore, existing Florida law favors allowing the voting contest of Mr. Gore.

Bush Big Lie No. 2: The only counties being challenged (by Gore) are the Democratic ones. This is somehow called "unfair" by Bush partisans. That, to be blunt, is bull.

Both sides have the right to object to an election, demand recounts, etc. Florida Election Code, Section 102.166. Presumably, someone who wishes to serve as President of the United States is not so stupid and/or indolent as to require his opponent to do his objecting for him. If Mr. Bush wanted to object to the votes in the other counties of Florida, he had a right to object to them. He didn't, for whatever reason. He allowed the time permitted for such objections to run out. Again, that was his choice. Now to have his attack weasels, such as James Baker, out in public, whining about it, is ingenuous, to say the least. Bush chose not to contest those counties where, presumably, he might have gained votes. Bush chose not to file objections in other states, where, allegedly, he might have gained electoral votes, like New Mexico. That was his free choice. Interesting, in that this is the man who would like to deny women the right of choice in their lives.

Bush Big Lie No. 3: That Bush has been elected by the "will of the people". Aside from the fact that Gore actually won the popular vote, nationally, all that can be accurately said about this election, right now, is that we do not know who the majority of Florida voters voted for. Because of the close nature of the vote in Florida, (since both candidates were such lame dogs), no one can accurately say who really "won" the popular vote in Florida. The purpose of election protests, and contests, and manual recounts, etc., is to try to find that out. All that we do know is that George W. Bush was named the winner by his own state campaign chairman, a woman who has publically stated that she wants Bush to name her to an Ambassadorship. Further, it appears that the state legislature may, at the demand of the Bush campaign, select their own panel of electors, if the recounts go against Bush. This is the "will of the people"?

At the present time, it appears that George W. Bush will, eventually, become the President of the United States. When that happens, remember what has happened here. George Bush has whined, stalled, and lied to the American people, in his headlong search for power and he isn't even in office yet. What will be do once he is in office?


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