Men in Black (18 page)
Authors: Mark R. Levin
The Court added, “The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”
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The Supreme Court found the link between virtual child pornography and instances of child abuse too weak to justify a ban. Yet the mere assertion of “corruption” is enough to reject the First Amendment’s protection of political speech in McCain-Feingold.
In 1989, in
Texas v. Johnson
, the Court also determined that flag burning was a constitutionally protected act of expression.
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Justice William Brennan, writing for the majority, stated, “We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s [flag burning] is a sign and source of our strength.”
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So conduct like flag burning is protected speech, but running an ad on television criticizing a candidate within sixty days of a general election is not.
President Bush had an opportunity to veto the McCain-Feingold bill. Instead, he signed it into law, thereby passing the buck to the Supreme Court. In a statement released at the time, the president said:
[T]he bill does have flaws. Certain provisions present serious constitutional concerns. In particular, [McCain-Feingold] goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with federal elections.
I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.
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By signing this law, the president committed his Justice Department to defending it against all legal challenges, which it did, including in
McConnellv. FEC
.
The executive branch’s responsibility to uphold the Constitution is no less vital than that of the Supreme Court. The president should not cede such authority to the Court. President Bush gambled that he could avoid the slings and arrows of the campaign finance reformers and their media cheerleaders by signing the McCain-Feingold bill and leaving it to the Court to strike down its most constitutionally offensive aspects. He was wrong. The Court, these days, is no reliable guardian of the Constitution. And as a result of the Supreme Court’s decision, Americans enjoy less liberty today than they did yesterday. The framers would be appalled. These laws are passed by the very incumbent politicians who benefit from silencing their opponents. A representative republic cannot remain a republic for long when its representatives become increasingly immune from public scrutiny and criticism.
HE
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OURT
C
OUNTS THE
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ALLOTS
“We will take to the streets right now, we will delegitimize Bush, discredit him, do whatever it takes, but never accept him.”
Jesse Jackson, speaking outside the Supreme Court, December 11, 2000
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T
he 2000 presidential election spawned a historic and egregious example of judicial recklessness. The Florida Supreme Court’s rogue rewriting of state election law—in a bold attempt to micromanage an election in real time—and the U.S. Supreme Court’s unprecedented intervention to restrain that court will reverberate ominously for years to come. Now defeated “win-at-all-costs” candidates and professional party operatives have an open invitation to try to influence the outcome in close elections—or even attempt to overturn the results—with the help of unelected judges.
The controversy demonstrated how the courts can plunge themselves directly into politics and how politicians can use the courts. And sadly, none of this was necessary. Well established, time-tested statutory and constitutional mechanisms were already in place to resolve challenges to the presidential election results and determine the outcome in a clear and unassailable manner. And George W. Bush would have been elected president despite everything the Florida Supreme Court did to deliver the state’s electoral votes to Al Gore. By acting as they did in the weeks after the election, both supreme courts inserted judges into one of the last bastions of democratic—and nonjudicial—authority: how we, the people, elect our president and vice president. Because the U.S. Supreme Court selected a constitutional sword to strike down the Florida Supreme Court’s blatantly lawless intervention, our presidential elections may never be the same. Consider what the courts have wrought.
Elections in America are conducted by local authorities—county, city, and state governments—within certain broadly defined federal requirements. In 2000, Florida’s election laws required that any electoral contest in which the margin of victory was half of 1 percent or less be subject to an automatic recount of the machine tallies of votes cast.
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Florida statutes also allowed any candidate for elective office, or any political party on the ballot, to request a manual recount of votes cast in an election.
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These provisions detailed procedures and standards under which recounts should be conducted, including specific requirements that the recount be held in public view
4
and that specific county election board representatives actually conduct the recount.
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Florida law imposed certain deadlines for when candidates could request recounts
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and for when final election returns had to be submitted to the Florida Department of State.
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Federal law required that the procedures for resolving recounts and other disputes surrounding a presidential election be in place and a final determination made six days before members of the electoral college were to meet and vote.
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The same federal statutes placed a deadline on when states had to submit their electoral college ballots to the archivist of the United States, who is the official recipient of the electoral college ballots, and to Congress.
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The statutory deadlines ensured that all electoral college ballots would be physically present and that all reasonable disputes concerning the selection of electors would be resolved by the time Congress assembled to open and count them under the provisions of the Constitution.
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The Florida Supreme Court, however, disregarded these laws in favor of a desired outcome: the election of Al Gore. The U.S. Supreme Court intervened to bring an end to the Florida Supreme Court’s obvious manipulation of the ballot-counting process.
Florida’s initial vote tabulation showed that Bush had won the state by more than 1,700 votes.
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Florida law mandated an automatic machine recount,
12
which was immediately conducted. Following that recount, Bush was still the winner.
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The recount gave Bush a margin of 327 votes out of almost six million cast.
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Florida law provided that either candidate could request a manual recount in any county.
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When such a request is made, the county’s canvassing board could then, in its discretion, conduct a manual recount of 1 percent of the county’s total votes in at least three precincts. If that 1 percent sampling dictated “an error in vote tabulation which could affect the outcome of the election,” the board was required to correct the error and recount the other precincts with the vote tabulation system, request the Department of State to verify the tabulation software, or conduct a full manual recount.
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In other words, only if the initial selective recount indicated a vote tabulation error could the county canvassing board begin a full manual recount of
all
the ballots. No one—even on the Gore team—argued that there were any machine errors. Consequently, there was no statutory authority for the four counties to conduct full manual recounts of all the votes.
Nevertheless, within two days after the election, Gore called for a manual recount in four Florida counties—Palm Beach, Miami-Dade, Broward, and Volusia.
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Gore apparently believed a recount in these overwhelmingly Democratic counties would reverse the state’s election results. On November 12, the Palm Beach and Volusia county boards of election started hand recounts, while Bush’s attorneys went to federal court to prevent manual recounts as not being authorized under the statutes—which they weren’t.
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Other lawsuits were filed on behalf of both political parties, boards of elections, the Bush and Gore campaigns, and individual voters to both stop or require manual recounts, and to include or exclude certain absentee ballots.
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A deadline was looming. According to Florida law, if a county’s returns are not received by the secretary of state by 5 p.m. on the seventh day following the election, the secretary of state shall ignore that county’s votes.
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Florida law also directed that the secretary of state can, but is not required to, ignore late-filed ballots.
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The “shall ignore” statute spelled out the secretary of state’s specific duties. The “may ignore” statute merely provided notice to the county canvassing board members of what the secretary of state could do if deadlines for the vote tallies weren’t met.
Florida Secretary of State Katherine Harris, an elected Republican, showed unusual courage throughout the process, for which she would be personally vilified and disparaged. On November 13, she announced that Florida law would be enforced, and that the sixty-seven counties that composed her state would have until 5 p.m. November 14, 2000, to deliver their certified vote totals to her office.
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Harris had no discretion to extend or waive the deadline imposed by Florida law, which provided, in part: “If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties
shall
be ignored, and the results shown by the returns on file shall be certified.”
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(Emphasis added.)
The statute was unambiguous, and the challenges against it by Gore’s legal team should have been dismissed. The effect of this statute, and its strict adherence to a specific date and time, is to ensure that counties don’t manipulate vote returns after electoral winners and losers are announced. In other words, it prevents the kind of endless vote counting that was under way in heavily Democratic counties. All states impose deadlines on vote tallying.
By November 15, when the deadline passed for counties to submit certified election returns to Harris, she announced that she would not accept additional recount returns. Harris also asked the Florida Supreme Court to stop manual recounts under way in various counties.
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This was consistent with Florida law. On November 16, Gore filed a motion in a Florida circuit court to force Harris to accept amended vote returns after the deadline.
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Judge Terry Lewis ruled that Harris was not required to enforce the deadline, but acted within her proper discretion in doing so.
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On November 17, 2000, the Florida Supreme Court, on its own motion, issued a temporary stay against Harris, stopping her from certifying the election results on the day and time provided by law, pending a full hearing before the court.
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Meanwhile, on November 17, the Eleventh U.S. Circuit Court of Appeals in Atlanta denied the Bush camp’s motion to stop manual recounts.
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Bush’s lawyers had argued that recounts in only heavily Democratic counties violated the Fourteenth Amendment’s equal protection clause, which provides that no state shall deny its citizens equal protection under the law. They essentially claimed that giving special attention to ballots in certain counties violated the equal protection of citizens in other counties. The court, in rejecting the Bush team’s argument, correctly (and painfully, for Bush supporters like me) stated, “After expeditious but thorough and careful review, we conclude that the Emergency Motion for Injunction Pending Appeal should be denied without prejudice. Several factors lead us to this conclusion. Both the Constitution of the United States and [federal statutes] indicate that states have the primary authority to determine the manner of appointing Presidential Electors and to resolve most controversies concerning the appointment of Electors.”
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On November 21, the Florida Supreme Court ordered that manual recounts could continue, but must be completed within five days. The Florida Supreme Court held that Harris abused her discretion in enforcing the statutory deadline. The court completely ignored existing Florida law governing deadlines and recounts, and imposed its own new deadline out of thin air—November 26.
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Three days later, the U.S. Supreme Court agreed to hear arguments about whether the Florida Supreme Court’s order was constitutional.
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Broward County, one of the four counties subject to a manual recount, had completed its recount inside of the November 26 deadline.
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But Broward County changed its counting rules in midstream to include dimpled ballots—even chads with barely discernible indentations—ensuring that Gore received more votes. Moreover, at least one Democratic canvassing board member was caught bending ballots so that light could peek through an otherwise unpricked Gore chad.
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Another Gore-targeted county, Palm Beach, kept shifting its standards for counting votes. Dimpled ballots had not been counted at first, but eventually they were. Virtually every other kind of marked chad was also counted.
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Palm Beach County canvassing board members were unable to complete their recount within the extended deadline, however. Harris refused to grant another extension for the late filing beyond the second deadline and the results were not included in her submission to Florida governor Jeb Bush. Nonetheless, Palm Beach County continued counting past the deadline.
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A third county, Miami-Dade, concluded that it could not meet the Florida Supreme Court’s extended deadline and decided not to conduct a full manual recount. This was within the county’s discretion.
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On November 26, the deadline set by the Florida Supreme Court passed. Harris’s submission to Governor Jeb Bush was consistent with the Florida Supreme Court’s decision of November 21. Harris was legally obligated to certify the results of the popular vote and submit those results to Governor Bush, which she did. Bush then carried out his legal duty and signed a “certificate of ascertainment” appointing George W. Bush’s slate of electors to the electoral college. He then forwarded the results to the archivist of the United States.
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At this point, the election was over. But this momentous fact was missed or ignored by the courts, both legal teams, and the press.
Despite Harris’s and Jeb Bush’s actions, the court haggling continued. On November 27, Gore’s attorneys challenged the voting results in a Tallahassee state circuit court.
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On November 30, the Republican-controlled state legislature voted to convene a special session of the legislature to appoint electors if the matter was not resolved through other means by December 12, the deadline under federal law when states must certify their slates of electors.
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On December 1, the U.S. Supreme Court heard oral arguments on the issue of whether the Florida Supreme Court acted unconstitutionally when it ordered Harris to include manual recounts submitted after the statutory deadline.
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Three days later (during which Gore’s challenge to the returns in Palm Beach and Miami-Dade counties in state circuit court was denied), the U.S. Supreme Court set aside the Florida Supreme Court’s decision to extend manual recounts, pending an explanation for its action.
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But the worst was yet to come. December 8 saw the Florida Supreme Court commit a flagrant act of judicial abuse. Basing its actions on no constitutional, legal, or judicial precedent, it ordered manual recounts in every Florida county that had significant numbers of “undervotes.”
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Undervotes are ballots in which no vote for president is recorded or detectable by machine tabulation. Ballots on which votes are cast for more than one candidate for president are called “overvotes.”
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The court stated, “[W]e agree with the appellees that the ultimate relief would require a counting of the legal votes contained within the undervotes in all counties where the undervote has not been subjected to a manual tabulation.”
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The court set aside its own November 26 deadline and ordered additional recounts.
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But the court didn’t provide a deadline for completing a manual recount. This problem was raised in a dissent by Justice Major Harding:
While this Court must be ever mindful of the Legislature’s plenary power to appoint presidential electors [under Article II, Section 1, Clause 2 of the U.S. Constitution], I am more concerned that the majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos.
Even if by some miracle a portion of the statewide recount is completed by December 12, a partial recount is not acceptable. The uncertainty of the outcome of this election will be greater under the remedy afforded by the majority than the uncertainty that now exists.
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