L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 102, December 11, 2000
Living in Infamy
Perverse and Malicious Dictates
by William Westmiller
Special to TLE
Legal rulings and arguments are frequently couched in very solicitous and deferential language, on the premise that none of the parties are perverse or malicious. The current debate over the Florida election process doesn't warrant such consideration.
The ruling of the Florida Supreme Court was not just in error, it was a gross perversion of the law, a malicious partisan effort to overturn an election and warrants the removal of every one of the Justices from any honored office.
Since I won't be arguing before any court, deference and respect for this atrocity aren't required to sustain my standing to make respectful arguments to their overwhelming stupidity.
There are some libertarians who argue that voting constitutes an endorsement of the outcome and conduct of the winner. This is nonsense. A vote is an expression of preference between the proffered options. Period. I can vote for any candidate and totally oppose any action by that candidate that I believe is unethical or dangerous. I don't concede any rights or my freedom of speech by expressing a preference for the inclinations of one candidate over the other.
There are other libertarians who contend that government is irrelevant and they will defend their rights by force of arms if any infringement is threatened. This is a fantastic evasion of reality.
An appeal to superior force is a denial of any claim to natural rights. The only civil and rational method of defending one's rights is to make the case in the court of public opinion. That is why we have political contests rather than civil wars: the social consensus is that disputes will be resolved by reason and logic rather than force of arms. If Waco and Ruby Ridge tell us anything, it is that individuals will lose every battle premised on superior force rather than civil debate.
The right to vote is a civic right, based on the Constitutional foundation that a legitimate government derives its just powers from the consent of the governed, limited by the natural rights of every person to their own life, liberty and properly. A vote is solely an expression of preference for the candidate or principles which will govern those legitimate functions—not an assent to any actions which might impinge upon an individual's rights.
The dispute in Florida is not an argument about the right to vote, but rather about the method of that expression. The argument is over whether various means of voting adequately express the clear intent of the voter. The civic right to vote does not grant to the participant the right to express his preference in any manner whatsoever. Were that the case, assassination of the victor would be considered a clear and legitimate expression of the voter's intent.
This may be the preferred method of some fanatics, but it can hardly be considered civil.
The principles that ought to guide the method of expressing a vote are first, that clear and prior rules be established for casting a ballot and second, that the application of those rules be applied equally to every citizen casting a ballot. The Florida Supreme Court ruled otherwise, contending that the right to vote is the right to any expression, whether clear or vague, under any rules that are adopted by Canvassing Boards before or after the election and are applied to only selected ballots that further a political objective.
This is not simply wrong and not simply a misconstruction of the law, but rather a malicious, perverse, unconstitutional and partisan ruling in violation of the civic right to participate in an election.
The rules describing the method of casting a ballot in Florida are clear and unequivocal. They are distributed to every voter in the state with sample ballots. They are posted at every polling place. They are even reproduced at every single voting station in huge type that cannot be mistaken by any literate voter. The instructions require the voter to punch the ballot directly and all the way through. They explicitly instruct voters to inspect the ballot and remove any loose chips or chads that might put their intentions in doubt. These instructions are even available on the web, for those who are in doubt (this one specifically for the Palm Beach Count "butterfly ballot").
It was both improper and unsupported in law for any of the Florida County Canvassing Boards to substitute their own idea of how voters might possibly express their voting intentions, other than that method expressly defined in the law and clearly offered to every voter in a propitious and timely manner. To change that voting method by changing the ballot counting criteria is not just arbitrary and capricious, it is malicious. The intent of the County Boards was purely for the sake of a political outcome they hoped to achieve and not to determine the legal expression of intent by the voters. Failure or refusal to cast a vote for any office cannot be resolved by spurious divination of the meaning of dimpled chads.
Nor is this imputed discretion of the County Board anywhere established in law. The context of the law allowing manual recounts as one option of three does not grant the Boards total discretion as to the method or counting - or tabulating - ballots. The Florida Supreme court created this discretion out of thin air by totally ignoring the context. The prefix to Section 102.166(5) requires that the board test the tabulation equipment and determine that it is not operating correctly. If any deficiencies in the tabulation are found which would change the outcome, they have three options: 1) do normal maintenance on the equipment; 2) correct any software errors in the equipment; or 3) conduct a manual recount. Any sane interpretation would indicate that this last option was offered solely to account for those circumstances (power failure, hurricane) which prevented a machine recount of the ballots.
Yes, the statute could have been written for Florida Jurists with an IQ lower than the number of Electors designated for the state (25). Yes, the manual count specifications could have been explicitly recited again, for the benefit of those who had no idea that any method had been stipulated elsewhere in the law. Yes, the Florida Court seized on these oversights to fabricate an entirely different purpose for the statute and fabricated a totally arbitrary method of tabulating the ballots. This was precisely what the Gore attorneys needed in order to accomplish their self-interested objectives. The Court practically plagiarized the Gore argument without the slightest consideration of the law or the character of the method of voting. It was a purely political decision that conformed with their purely partisan wishes for a favorable Gore outcome.
Leon County Circuit Judge N. Sanders Sauls considered the same evidence as was heaped on the County Boards and found that there was no evidence to support a manual recount. The claims were purely based on dubious and contradictory evidence that did not meet the test prescribed by law.
However, the Florida Court's slavish catering to the Gore team didn't end there. They also chanted the argument that there was a contradiction in the code regarding the consideration of late manual recounts. Looking at two distinct chapters of the Election code, one saying the Canvassing Board "may" ignore late counts and another saying the Department of State "must" ignore late counts, it came to the totally preposterous conclusion that both bodies "must count" and may not ignore any late manual returns. This is "construction" turned on its head. It is not an interpretation of the intent of the Code, but a complete "destruction" of the Code. The Court clearly recognized that picking either legislative term was inadequate for Gore's purposes.
If they had selected "may ignore", then the discretion was with the Secretary of State, who had already ruled that law and precedent must require that the results be ignored. The uttered not one word about the merits of her determination and completely reversed the clear words of the election code. This is nothing less than a malicious usurpation of the separation of powers and bald-faced effort to legislate from the bench. It is totally indefensible.
Wait! They didn't stop there! During the oral arguments, one of the Jurists pleaded with Gore attorney David Boies to tell them how to justify a revision of the explicit deadline (Nov. 14th) for submitting any revisions to the count. "Shall we just reach up into the air and pull down a date and write it on paper?" Boies declined to suggest any reasonable motive. So what did the Court do? It discarded the clear and repeated deadline that appears throughout the Code, reached up into thin air and wrote down a totally arbitrary date that they never even attempted to justify. If they had simply stepped down from the bench and kissed the Gore attorney's feet, it would have been more honest.
Well, they did that and more with their decision on the only remaining issue. While granting total discretion to a few Democrat Canvassing Boards, they totally revoked the discretion of the State Department that was explicitly granted in the law. The interpretation was that there was no discretion, that the Secretary of State must accept all late returns and could make no determination, either on the basis of law or precedent, that such results were valid.
The findings of the US Supreme Court were excessively kind to the Florida Court. Finding no sense in the basis of their ruling and finding clear violations of ex-post-facto law, they sweetly asked the Court to take a few minutes to read the US Constitution. They should have rolled up each page and stuffed it up the posteriors of each Florida Jurist.
The findings of the Florida Circuit Court were elegant: the Gore team had failed to show any evidence whatever that there were any legal or equitable rights addressed in their complaint. Their contest was not just baseless, it was a violation of every cannon of law regarding due process and equal treatment. It was totally without merit.
Nevertheless, the Florida Supremes came back with an even more obscene ruling, overturning the finding of the Circuit Court and ordering manual recounts of all "undervotes" across the state.
Three of the judges came to their senses and condemned—in no uncertain terms—the insanity and fanaticism of the majority opinion.
In the words of Justice Harding, the court majority "...permits a remedy that was not prayed for, which is based upon a premise for which there is no evidence, and which [orders counties] to conduct recounts when they have not been served, have not been named as parties, but most importantly, have not had the opportunity to be heard." Chief Justice Wells also dissented, calling the ruling dangerous and unconstitutional.
At the time of this writing, the US Circuit and Supreme Courts are considering a stay (stop all action) of the Florida Court ruling.
However, if the manual recount proceeds, it needs to be noted that the Florida Courts gave the Gore Team more than they wanted.
It is statistically probable that George Bush could add as many as 3,000 votes to his margin—simply because the only remaining counties to be manually counted are predominantly Republican strongholds. It's payback time. The Bushies should start counting every dimple, pimple and pregnant chad for Bush, just as the Dems have been doing for the past three weeks in their strongholds. The epitaph for the Gore Team may be that they finally got what they wished for: a totally subjective, partisan and distorted count of every ballot cast.