December 13, 2000
W's Coup d'Etat
By Robert Parry
Let it be remembered that Texas Gov. George W. Bush, the loser across the United States by a third of a million votes, “won” the presidency through two key acts of raw power.
Bush's campaign sponsored a violent demonstration by Republican activists as ballots were about to be counted on Nov. 22. He then enlisted partisan Republicans on the U.S. Supreme Court to prevent a statewide recount in Florida before a Dec. 12 deadline.
On Nov. 22, about 150 rioters – led by Republican congressional staffers dispatched from Washington – charged the offices of the Miami-Dade County canvassing board as it was about to commence a partial recount of votes. With the mob roughing up Democrats and pounding on the walls, the canvassing board abruptly reversed itself and decided not to count those votes after all.
Rather than criticize this bizarre attack on what was then a court-ordered process, Bush reveled in its success.
His campaign sponsored a celebration for the demonstrators the next night at a swanky hotel in Fort Lauderdale. The “president-elect” even called to joke with the rioters about their Miami operation, according to the Wall Street Journal [Nov. 27, 2000]. At the party, singer Wayne Newton crooned Danke Schoen.
Then, after two more weeks of delays, the Florida Supreme Court ordered a partial statewide recount to examine ballots that had been kicked out by machines for supposedly having no choice for president.
On Saturday, Dec. 9, facing a deadline of Dec. 12 for certification of Florida’s electors, vote counters across the state began examining these so-called “under-votes.”
In the first few hours, the counters found scores of ballots with clear votes for president that had been missed by the machines. Other ballots were set aside for a judicial determination about whether a vote was registered or not.
With Bush’s lead at less than 200 votes and slipping, the Texas governor played his trump card. He turned to his five arch-conservative allies on the U.S. Supreme Court.
By a 5-4 majority, the court – for the first time in U.S. history – stopped the counting of votes cast by American citizens for president. The majority consisted of Justices William Rehnquist, Anthony Kennedy, Sandra Day O'Connor, Clarence Thomas and Antonin Scalia.
In a written explanation, Scalia made clear that the purpose of the extraordinary injunction against counting votes was to prevent Bush from losing his lead and having "a cloud" cast over the "legitimacy" of his presidency if the court decided to throw out the new votes.
Three days later, on Tuesday night only two hours before the Dec. 12 deadline was to expire, the same five justices issued a complex ruling that reversed the Florida Supreme Court’s recount order. The U.S. Supreme Court cited a hodgepodge of “constitutional” issues, including complaints about the lack of consistent standards in the Florida recount.
After having delayed any remedy up to the deadline, Bush’s five allies then demanded that any revised plan and recount be completed within two hours, a patently impossible task.
Twisting 'Equal Protection'
The five conservatives may have taken pleasure, too, in applying “equal protection” arguments to prevent the recount. Historically, Supreme Court liberals have used “equal protection” principles to strike down discrimination against African-Americans and other persecuted minorities.
Now, the five conservative justices were hoisting the liberals on their own petard. The “equal protection” argument asserted that the votes of other Florida citizens would be diluted if the ballots that had been kicked out by voting machines were counted using standards that varied from county to county.
The irony of the argument, however, couldn’t be missed. In wealthier voting precincts, new optical scanners were used to count votes and did the counting so efficiently that few of the votes cast for president were missed.
In poorer precincts, where African-Americans and retired Jewish voters were concentrated, older punch-card systems were used which failed to record thousands of votes for president. Just as poor neighborhoods ended up with older textbooks in their schools, they got stuck with antiquated voting machines.
To correct this imbalance and to count those votes, the Florida Supreme Court had ordered hand examination of those ballots statewide. In a few hours on Saturday, that recount discovered scores of missed votes.
But the U.S. Supreme Court – long the protector of the downtrodden in American society – was revealing itself in its new right-wing form. In stopping the recount, the court’s pro-Bush majority granted greater weight to the votes cast in wealthier precincts.
The traditional use of the “equal protection” principle of the U.S. Constitution had been turned on its head. The Constitution was now being cited to protect the privileged to the detriment of the poor.
Besides this ironic interpretation of “equal protection,” the U.S. Supreme Court relied on “reasoning” that – if applied fairly – would have judged the entire Florida election unconstitutional.
While excluding the hand recounts ordered by the Florida Supreme Court, the U.S. Supreme Court allowed the inclusion of earlier hand recounting done in Republican areas that had boosted Bush’s total by hundreds of votes.
Also left in were scores of overseas absentee ballots, heavily favoring Bush, that were counted after some Republican counties waived legal requirements almost entirely.
Supposedly to avoid disenfranchising U.S. military personnel, ballots were accepted even though they lacked signatures, witnesses and dates. In a couple of cases, overseas ballots were faxed in and counted, clearly in violation of state law.
In two better known cases in Seminole and Martin counties, Republicans were allowed to fix errors on absentee ballot applications also in violation of state law. The state courts ruled, however, that these ballots should be counted, despite the irregularities, because the sanctity of the vote was more important than technical voting rules.
Those situations all favored Gov. Bush.
Given the lack of consistent standards throughout Florida and the waiving of technical legal requirements in other cases, a logical extension of the U.S. Supreme Court’s logic would be that the entire presidential election in the Florida should be thrown out as unconstitutional.
Or – if logic were again followed honestly rather than politically – the imperfect remedy of examining and possibly counting thousands of “under-votes” should have been allowed to go forward.
But at those two crucial moments when American democracy hung in the balance, Gov. Bush and his advisers turned first to violent demonstrators to attack the offices of vote counters and then to political allies on the U.S. Supreme Court to complete the coup d'etat.
In the memorable words of Justice Scalia, the leading Bush partisan, the majority’s concern was that a count of Florida’s vote that showed Bush to be the loser – when the court might later make him the winner – would not square with the need for “democratic stability.”
In a dissenting opinion on Dec. 12, Justice John Paul Stevens, an appointee of President Gerald Ford, said the majority's action in blocking the Florida recount "can only lend credence to the most cynical appraisal of the work of judges throughout the land."
Justices Stephen Breyer and Ruth Bader Ginsburg, appointees of President Bill Clinton, said in another dissent, "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
Yet, beyond those stern words about the U.S. Supreme Court's mockery of democracy, worse could lie ahead.
The nation now must be aware that the U.S. Supreme Court – long trusted as the protector of the nation’s democratic principles – has been transformed into a vehicle for upholding whatever partisan legal strategies George W. Bush and his incoming Justice Department choose to direct against those who stand in the way.
The "rule of law" could fast become a code word for tyranny.
With its Dec. 12 ruling, the U.S. Supreme Court has marked itself as the ultimate weapon for its favored politicians to wield against their enemies. That is the final cautionary tale of Election 2000, as the nation enters a dangerous new era.
In the end, history must record that the U.S. Supreme Court made George W. Bush the “winner” of the presidency, though he was the loser of the popular vote, both nationally and apparently in the crucial state of Florida.