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Week 6:

GORE IN 'FOUR !!

Week 5:

special (prolonged!) election edition - part VIII

The Supreme Clowns of the United States

Per Curiam:  When in the course of human events it becomes necessary for us to issue a completely incomprehensible decision, cloaked about in a bewildering cloud of concurrences and dissents, signifying nothing to nobody, remanding the impossible to the implausible, you can pretty damn well guess that our real intent is to say ...

F*ck You.  It is so ordered.

(Note: key word bowdlerized so those "family" gadgets don't classify this as a T&A site.)

special (prolonged!) election edition - part VII

Scalia, "Uncle" Thomas, "That clown Renchburg," Kennedy, O'Connor:

BALLOTS? 

WE DON'T COUNT NO BALLOTS!

WE DON'T NEED TO COUNT NO STEENKING BALLOTS!

Well, boys and girls - I hope you've liked having presidential elections ...

Memorandum to Senate Democrats:  No Federal judge nominee sent up by an unelected George Bush should be confirmed.  None, zero, nada.   The Republicans were doing it to Clinton's nominees - you should do it to Bush's nominees.

Everyone - Write your Senators now!

No Vote Count - No Confirmations !!!

Addendum: On Legitimacy

Unlike George W. Bush, Supreme Court Justice Antonin Scalia is not a stupid man. On the contrary, he obviously possesses a very sharp legal mind.

Presumably it was Scalia, for example, who picked the language out of Article II of the Constitution that allows a state legislature to choose any method of naming presidential electors, without reference to any law set forth in a state constitution. Neither the Florida supreme court nor the lawyers on either side had hit on that one. (And no one seems to have hit on the language in Article V that guarantees the states a republican - i.e., among other things, constitutional - form of government.)

Likewise it is Scalia, in his concurring opinion to stay the vote count - an opinion that required a standard of "irreparable harm" - who found this exceptionally smooth way to cloak expediency in the language of law:  Counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.

Translation: "If the vote count were completed, and showed Gore ahead, it would be really, really embarrassing for Boy George if we threw out those votes in order to make him president."  Clever, yes. Subtle, yes. But Scalia's reasoning also shows that his mind is as narrow as it is shrewd - awesomely narrow; so narrow he takes the breath away...

For if the vote count goes unfinished, Scalia will have stripped Bush of his one and only chance to ever be a legitimate president.

Legitimacy is not the same thing as legality. The law is a thing of forms and procedures, sometimes designed to produce an approximation of justice and occasionally even doing so. Legitimacy is a sense of rightness, a feeling that authority was properly and fairly granted, according to the customs and usage of the people.  Legal forms cannot give legitimacy, because the law itself depends on an underlying sense of legitimacy if it is to reach any further than the nearest policeman's billy club.  George W. Bush may well be legally elected, in accordance with forms set forth in the Constitution and by a 5-4 vote of the Supreme Court. But no court can confer legitimacy on Bush, any more than Tom DeLay's thugs in the Miami County government building could confer legitimacy on him.

In America, legitimacy is conferred by votes. That Bush lost the nationwide popular vote by a third of a million votes did not delegitimize him, because we all understood going in that the Electoral College, odd though it is, is part of our customary system. All of us who are political junkies spent the last weeks before the election poring over electoral maps, and on Election Day evening the networks called - or miscalled - the results state by state.

So Bush did not have to win the nationwide popular vote. But to be legitimate, under the rules we have followed for four generations, he does have to win the vote in Florida. If the hand-count went forward, that might well happen. But if the hand-count goes forever unfinished, a Bush presidency will be forever illegitimate.

Smart guy, that Antonin Scalia. He's figured out everything but the one thing that matters.

special (prolonged!) election edition - part VI

News Flash: Florida Supreme Court sez

COUNT 'EM !!!!!

No one knows how this will come out in the end.  The Bushters may get the ultraconservative 11th Circuit to grant a "stay" - as though counting votes were as fatal and final as an execution.  Or the US Supreme Court may do so.  If so, it is a sad day for democracy in America.

Or the votes may be counted, and Bush may win.  If so, so be it - he will have had the legitimacy forced on him that he (or rather his handlers) tried so hard to resist, preferring expediency.  Or Gore may win.  At least, if the votes are counted, we will know who won.

special (prolonged!) election edition - part V

The Chad-Hanging Judge

A good general rule of thumb seems to be that you should never expect much of a judge who plays to the cameras.   Florida Circuit Court Judge Sander Sauls - known to some as Judge Stalls - was a southern-fried Judge Ito, more interested in cracking wise from the bench than in ruling wisely from it.

This is not to say that he was plain stupid, as Judge Ito was.  So far as I can tell from the legal talking heads on TV, he did a pretty thorough job of covering all bases, to bulletproof a ruling he probably had decided before any testimony was heard or any evidence viewed, so as to make it hard as possible for the Florida Supreme Court to reverse him.  And it probably won't reverse him, because appellate courts in general do not easily reverse trial courts.   But the peculiar thing about Judge Sauls - and my reason for suspecting his ruling was pre-cooked - is that he never did look at the main evidence in the case before him: the ballots.

Think about this for a moment.  Set aside my partisanship - which I do not disguise - and your own, and consider the matter before Judge Sauls.  Those ballots.  As I said here previously, I do not know whether "dimpled" ballots should or should not be counted as votes.  I've never seen one, and never voted on that type of machine.   Obviously I'd like to have seen them counted as votes, but I could not make fair judgment either way without looking at some of them.  Not all of them, perhaps, initially, but enough to get some first-hand idea of what kinds of marks or breaks get onto those ballot cards.  Do they have all sorts of random dimples, too many to infer that voters made them in trying to record a vote?  Or do they only show up in places and ways that suggest an attempt to vote? 

And how could you, I, Judge Sauls, or anyone else, make that judgment without at least looking at the damn ballots?

But using judgment, evidently, is something that Judge Sauls regarded as an unnecessary complication - instead wasting his own time and the nation's on, inter alia, a witness who never even tried to vote - who never got to the polling place, not because she was turned away or in some way intimidated, but because her husband had heard on TV that Florida had been called for Gore. 

Excuse me, but I've voted many times for candidates I knew were going to lose.  Of all people whose votes deserve to be counted, that "virtual" voter belongs at the end of the line.  But Judge Sauls evidently thought her testimony so vital to the future of the Republic that she was duly trotted up to the stand.  (Gore's lawyers, understandably, wasted no time in cross-examining her.)

So the embarrassing farce of a trial is over - and this embarrassing farce of an election is probably almost over.  The decisive moment was probably a week and a half ago, when the GOP rent-a-thugs showed up on the 19th floor of the Miami-Dade government building, and the county election board caved in and quit its recount.

Those things happen in banana republics.   They aren't supposed to happen here.  But a capacity for embarrassment has never been a distinguishing trait of the Bush family, as a former Japanese prime minister can personally attest.

Absent a lucky break, it is going to be an embarrassing four years ...

Week 4:

Paramount Consideration

Votes count, the Florida Supreme Court has ruled - so count the votes.

The court has set a tight but reasonable deadline for the counties to complete their recounts.  The deadline allows ample time for the inevitable legal challenge or "contest" of the final election results, and for certification of Florida's 25 votes in the Electoral College.

How the recounts will come out is quite uncertain.  The court did not rule (as the Gore campaign wanted them to) on what sort of chads do or do not indicate a vote - though it did state firmly that questionable ballots should be examined to see if the voter's intent to vote can be clearly determined.   The justices avoided a ruling on chads for what I suspect is the soundest of grounds, legal and practical: they don't know.  As a partisan Democrat I obviously hope that the counties will adopt a broad interpretation - the one that George Bush signed into law in Texas, for example.  But I do not know, any more than the Florida justices know, just what sort of chad clearly indicates a voter's intent.  I have never voted with the type of machines used in those Florida counties, and I certainly have never examined ballots with "pregnant" or any other kinds of chads.   

Appellate courts do not normally hear testimony or examine witnesses; first-hand evaluation of facts is not their job. Trial courts do that, and appellate courts then evaluate the record sent up to them.   Whatever standards each county uses will surely be contested, a bench trial will be held, ballot cards will be studied, and experts on punch-card voting examined and cross-examined.  This trial will produce a record of fact, on which the Florida Supreme Court can then base a final ruling.  The vote tallies will be adjusted in accordance with the ruling, and either Gore or Bush will have more votes.  (Or, the gods help us, it will be a tie.) 

That ought to be the end of it.  But, as James Baker has already made all too clear, if Gore wins the vote that will not be the end of it.  The Bushters will not hesitate to throw out the will of Florida's voters, if that is what it takes to enthrone Prince George.  They will take it to the Florida legislature.  They will take it to Congress.  (Where the Senate may be tied 50-50, since the latest returns from Washington state show Maria Cantwell ahead of Slade Gordon with all but the last few votes counted.  There will, of course, be a recount.)    

This is a strategy designed to provoke a constitutional crisis, and even more fundamentally a crisis of legitimacy. 

The Bushters and their praise chorus among conservative pundits are operating on a different principle than vox populi vox dei.   They are operating on a principle of Divine Right.  Going into the election, the Bush campaign was convinced that they had it in the bag.  Their internal pollsters - who should have known better - evidently sacrificed professionalism on the altar of zeal, and told the Bushters what they wanted to hear.  Bush would coast into office, just as he has coasted through life, with a handy margin of 5 percent or more.  

It didn't work out that way.  Bush fell short in the nationwide popular vote, and if he wins in Florida will do so by a few hundred votes.  Or he may fall short there as well.  But what is mere fact, in the face of the the Divine Right of the Bush Dynasty?

Week 3:

Day In Court

The Florida Supreme Court has now heard the arguments on both sides as to whether the next president should be determined by the voters of Florida or by Katherine Harris.  The seven justices will probably decide the case in a day or two, which may settle the matter.  Or not.

I am not going to try and predict the court's ruling based on TV coverage of the arguments.  The network bloviators thought that the questioning showed the justices as leaning toward letting the voters decide - which may be a bad sign.  When network bloviators try to predict court rulings, they are wrong more often than right.  The byplay between the justices and the Republican lawyers was more contentious, but that may have been the lawyers playing to the cameras.   Whatever they actually expect, one of their motives was surely to further inflame the GOP's right-wing base.

GOP spinners were doing this in full force over the last weekend, and it is the single most dismal - and explosive - element in this whole toxic mix.  The main subject over the weekend was alleged Democratic attempts to disenfranchise servicemen and servicewomen.  The accusation was based on a letter written by a Florida Dem lawyer, supposedly laying out how to do so.  Every GOP talking head seemed to be a copy, but when it appeared online Monday (on the Drudge site) it proved nothing near to its advance billing, merely laying out standard boilerplate that county election boards were supposed to follow.  (The instructions may have been incorrect; apart from being a partisan, Katherine Harris is simply incompetent, and herself gave inconsistant and incoherent advice to the county boards.)

But the spin had already been spun, and a dangerous new element has entered the debate.  Put bluntly, the GOP spinners are now making thinly-veiled threats of violence, pumping up the rage level not of the military - which is nothing if not professional - but of the more unstable fringe elements of the far right. 

On a barely more civil level, Tom "the Hammer" Delay is now looking into ways to throw out Florida electors chosen by the voters of Florida (should the latter be shown to have favored Gore) in favor of a rival faction of electors chosen by the state's GOP legislature.  This, should it happen, may be technically (and marginally) constitutional, but it sets another very dangerous precedent.

Meanwhile, the hand recounts go on.   By now we have now learned far more about chads, dimpled, pregnant, or otherwise, than most of us ever wanted to know.  Neither I, nor the lawyers and judges, nor the TV pundits, are really in a position to know when a chad does or does not indicate a vote.   The only people who know this are those who have seen and handled punch-card ballots of this type.  Though, for what it's worth - and as many have noted with some mirth - the Texas law signed by George W. Bush prescribes a broad standard for evaluating such ballots.

And Bush may yet win this election honestly.  As of this moment, the hand recounts are (reportedly) finding fewer previously-uncounted Gore votes than anticipated by either side.  However, hundreds of "contested" ballots are piling up - just how many, only the county canvassing boards know for sure.  There's a strong suspicion that most are Gore ballots, challenged by GOP observers on grounds sometimes reasonable but often frivolous - possibly purely mechanical.  By one account, every sixth Gore vote is being challenged automatically in one county, however clearcut the ballot.  So there is no way to know yet how the recounts will end up, even if allowed to continue.

But it doesn't matter what the Florida Supreme Court rules, or what kinds of chads count for votes - if Gore wins, the GOP true believers will be convinced that he stole the election.  Because so far as they are concerned, the presidency belongs to Bush by divine right. 

Just call him George IV.  Or, perhaps, the New Pretender.

Week 2:

NO RECOUNT -

NO LEGITIMACY !!

The Florida judge, it should be noted, has NOT ruled in favor of Florida secretary of state / Bush hack Katherine Harris. 

The judge has ruled that county returns must be returned by 5 PM Tuesday, but that the secretary of state can accept subsequent amended returns, and must do so with discretion, not arbitrarily.

Put simply, he has pulled the pin from the hand grenade and tossed it back at Harris.

special (prolonged!) election edition - part II

TAKE IT TO THE MAT !

It is now the first Monday after the first Tuesday after the first Monday in November- and we still do not know who will be the next President.

This in itself is not a crisis.  It is not even particularly surprising.  Florida was close, katana-blade close.   As of the latest - and incomplete - count, Bush leads by 327 votes, a shade more than 0.005 percent of the votes cast in Florida.  (Gore's lead in the national vote is a comparatively hefty 0.2 percent, but that is not what elects a president.) 

And, as I noted here, there can be no serious doubt that Gore won Florida as well, by a wide margin (well, 0.3 percent) - if you allow for the obvious intent of voters confused by the peculiar "butterfly" ballot in Palm Beach county.  The statistics and graphs are stark: far more Buchanan votes than anywhere else in Florida, and an abnormally high 4 percent of "double voting" errors, with the inherently implausible combination of Gore and Buchanan.  A voter might have hesitated between Gore and Nader, and a befuddled voter might have ended up voting for both, but only a befuddled ballot could lead so many people to vote for both Gore and Pitchfork Pat.   If in the end Bush wins, the shadow of a butterfly will cover his presidency for the next four years.

But what we have to deal with now is not a matter of who people meant to vote for - it is now a matter of simply counting the votes of people who were not confused at all, and voted only for a single candidate.   Which, however, is something the Bushters are desperately determined to prevent.   So much so that they are going to Federal court to try and stop it. 

Let's be clear on this.  A hand-count - human beings examining ballots cast by human beings - is the long-established and entirely routine procedure for determining the actual vote, so far as humanly possible, in any closely contested election.  It is the established practice in California.  It is the established practice in Florida.  It is prescribed as the preferred method in Texas, under a law signed by G.W. Bush.  It is used wherever a physical ballot exists for recounting.   (Which, by the way, is a strong argument against purely electronic systems that leave no audit trail.)

This is what the Bushters are furiously attempting to prevent.  Their legal pleading alleges that allowing a hand recount to go forward would do "irreparable harm" to the Bush campaign.  And indeed it probably will - if the vote is fully counted, Gore is likely to win. 

True that the hand-count is only going forward in three Florida counties (a hearing on a fourth will be held today).  Obviously it would be better to hand-count the entire state.  The Bushters could have called for exactly that, but refused to do so.  The time limit has passed, but if they choose now to request a statewide hand count the limit can be and should be waived.

One other gambit seems to be open to the Bushters:  Word over the weekend was that Katherine Harris, the Florida Secretary of State (and a Bush supporter) may refuse to certify county recounts submitted after Tuesday.  I am unclear on the Florida statute here, and even less clear on the case law.  But if Ms. Harris chooses to go that route, she will find out why thermonuclear hand grenades never caught on as a viable weapon system. 

Genuine ambiguity exists over a fair resolution of the "butterfly" ballot problem.  The Gore team should probably stay away from this question, and go with a final and complete count of votes as they appear on the ballots.  (The people of Palm Beach County, on the other hand, have a perfect right to take their case to court.) 

But there is no ambiguity whatsoever about counting votes.  Everyone can understand that.  If the Bushters ask for a recount of the full state, it should be granted.  If they demand recounts in Wisconsin, Iowa, and Washington, recount them.  (Throw in New Mexico and New Hampshire for good measure.)   If, at the end of a full and complete hand recount of votes, Bush is ahead, so be it: he becomes President.  If Gore is ahead, so be it: he becomes President.

If, however, a Bush political ally in Jeb Bush's state wilfully refuses to allow a complete count of Floridians' votes, there is no reason why Florida's 25 electoral votes should be certified by the Senate.  And if that is a "crisis," bring it on! 

Count the damn votes!

Election Eve (and the first day after)

special (prolonged!) election edition

RIX PIX 2000

PRESIDENT:   Al Gore

Popular vote - Gore 48 pct ... Bush 47 pct ... Nader 3 pct ... assorted cranks 2 pct.   [Update, 11/9: Popular vote now about 48/48/3/1, with Gore up by some 100,000 votes nationwide.]

Electoral vote - Gore 308 / Bush 230 [Giving Florida to Gore and Oregon to Bush, it comes to Gore 285 / Bush 253]

     A late surge brings the shocker of the evening. Watch pundits spin so fast they blur! Watch right-wingers leap out of windows in droves!

     The networks won't officially call it till almost 9 PM, Pacific time -- but the outcome will be effectively known by 6:30, when Florida, Pennsylvania, and Michigan have all been called for Gore.

Am I going out on a limb?  You bet I am!  But the last pre-election Zogby tracking poll showed Gore ahead by 2 pts, with sharp movement in the last two days.  The CNN/Gallup tracking poll, which in spite of its wild gyrations usually goes in the right direction, also showed movement toward Gore.  Several other polls have shown hints of a narrowing margin.

Conventional wisdom is that the late undecideds break against the incumbent.  But Gore isn't a true incumbent.  And since Bush led for most of the last two years, the real question is whether he closed the sale ... and I don't think he did, not quite.

Main post-election spins:

1) Bush's Big Strategic Mistake: Putting all that money into California, only to come up 5 points short.

2) "Gore's dirty trick:" The DUI. But hey, it was a public record - not some woman secretly taping a girlfriend on the phone.

The true spin: When you hire a surgeon, pass on amiability and hire the guy who knows how to operate.

[Update, 11/9: Obviously, my guesses came nowhere close to the bizarreness of the reality!]

SENATE: 50/50 - Lieberman breaks the ties.  [Spot on, if the will of Florida voters is respected.] --- [11/20 edit: This would not actually be true even if Maria Cantwell wins in Washington (still undecided); Lieberman would have to resign, and a GOP governor would appoint, making it 49/51]

New York - Hillary!  [Yes !!!! ]

     One more reason for GOP apoplexy ...

Florida - Nelson  [Yes]

     Impeachment Manager McCallum bites the dust.  [Adios!]

Michigan - Stabenow  [Yes]

Missouri - Carnahan  [Yes]

     Dead Man Winning


HOUSE: Democrats pick up seven ...  [Current pickup only 2; some still undecided]

     ... but (soon-to-be-indicted) Traficant casts the vote to keep Hastert as speaker. Due to special elections, however, the Dems will have the House for real before the next election.

California - Impeachment Manager Rogan bites the dust.  [So sorry to say sayonara!}

CALIFORNIA PROPOSITIONS:  [Three for three]

Prop 36 (Drugs, treatment not jail) - Wins

Prop 38 (Vouchers) - Loses

Prop 39 (School funding) - Wins

-- Rick Robinson

Return to Observatory

Last revised 11/07/2006 ... by RM Robinson

Email me: Lyonesse@compuserve.com

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