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Bush Abandons the People

By Richard Carrier

Everyone knows the popular axiom that the most taboo topics of conversation are sex, religion, and politics.  This, of course, is because most people don't think and make no effort to be informed.  Instead, all too often people wield blind, passionate opinions, and adamantly refuse to listen to reason, much less hear out the facts.  There is nothing wrong with being passionate.  But when it overrides rationality and leads you to regard opinions as facts, and actual facts as unimportant, then you have gone too far.  As atheists we are all too familiar with this in the realm of religion: all of us know first hand of hundreds of believers who have approached us and insisted they are right, without having even bothered to check, and who don't even listen to the facts when they are told them, but instead read and believe only what they agree with.  Politics can be just as much a realm of blind faith and insensible opinion as religion.  The message atheists should encourage in themselves and others is that we should base our opinions, political as well as religious or any other, on facts and reason.  We should not let passion override sense, but instead sense should drive and fuel our passion.  That is why we atheists would like all voters and politicians to be reasonable, and to be informed before judging and pronouncing.

This simple demand of mine has clearly been violated by the Bush campaign and by those who support or actually believe its current post-election rhetoric.  We atheists should be informed.  And so I write this piece to that end.  I begin with my opinion, but true to my word I will back it up with the facts that I believe everyone needs to know about this election recount, and which I believe justify my opinion.  This is the way I see it.  Bush campaigned on the slogan "We trust the people, not the government," and the first lie of what may be his term as President has been demonstrated: true to the reputation of contemporary Republicans, no longer apparently a stereotype, when the civil rights of ordinary people are being violated, Bush's hand-picked observer James Baker heartlessly declares that "they had their chance" and should not complain. The rest of the Bush staff is arguing the same way, effectively calling voters stupid, and in doing so the Bush team is acting like children chanting "Too bad, so sad." Apparently, Bush wants the screw-ups of the government bureaucracy to overrule the rights and the will of the people. Why? For a mere selfish reason: to be president. I called him for what he is, and now he has proven it. Lest you think I am merely being an overly passionate supporter of Gore, as I definitely am (I don't deny it), here are the facts:

Violation of Election Law in Palm Beach County

The Palm Beach county ballots violate Florida election law. They do not violate it because they are confusing--even though to the partially blind and elderly they are, especially since the way the cards fit into the actual voting slates did in fact cause many arrows to be misaligned with the holes. They violate it because Florida law states in no uncertain terms that the hole to be punched must be to the right of the candidate's name. It also states that the Democratic party hole must be second after the Republican hole, based on the party holding the governorship of the state and the party with the second highest vote count in the most recent gubernatorial election. The format of the Palm Beach ballot, and only in Palm Beach, has candidates on either side of the hole, and Buchanan's hole was second. That is illegal.  In simple terms, it is a violation of the civil rights of Palm Beach residents. The Bush team wants to ignore the law, and instead argue that these ballots were used before, no one complained when they were sent out in advance, a Democrat approved it, "they" don't think it is confusing (an insult to the blind--they also curiously show only a photocopy instead of the actual voting card and device), etc., as if any of that justified breaking the law.  It doesn't.  It would not be unreasonable for a judge to change the vote in that county by some remedy, since the law is clear, and Florida judges have done it before--in the 1996 mayoral race in Miami.  To deny this, indeed, to show no awareness of the bearing of Florida law on this case, reveals that the Bush team is not interested in being informed, nor in doing the reasonable thing: seeking to protect the rights of citizens, uphold the law, and let the true will of the people prevail.

Why would the Bush team oppose this?  Don't they believe in the people?  Don't they want to uphold the law?  Don't they want to fight for the rights of American citizens?  Even Pat Buchanan started off a stand up guy about this: "I don't want any votes that I did not receive and I don't want to win any votes by mistake," Buchanan said, "It seems to me that these 3,000 votes people are talking about--most of those are probably not my vote and that may be enough to give the margin to Mr. Gore."  Why isn't Bush echoing the same simple truth?  Judges have already thrown out 19,120 votes of the people in Palm Beach county.  A re-vote, partial or total, or statistical adjustment (as Florida courts have required before), could be reasonably called for there.  Who wouldn't support something along those lines?  Even if the action were to support Bush, I would not hesitate to agree it was the right thing to do.  This isn't a partisan or political issue.  This is an issue of rights and ethics.  Could you believe that Buchanan would be on the side of the people in this issue, and Bush not?  As the Bush team callously attacks the stupidity of voters with all the sensitivity of a rock, Buchanan came out as the better man: "When I took one look at that ballot on election night...it's very easy for me to see how someone could have voted for me in the belief they voted for Al Gore...it's quite simple--you simply hit the second dot. It's by the 'Gore' line. It's the second line on the thing."  Later he started singing the Bush tune on the TV circuit, but his original and candid remarks reveal an honesty that apparently escapes Bush and his staff.  It should not be lost on us that these 3,000 mistakes, the result of a violation of election law, make Gore the winner.  That seems to be the only reason Bush really has to abandon the people in Palm Beach.

Computer Error in Volusia County

In Volusia county an even more suspicious irregularity occurred.  Professor Miles Gibson of the University of Virginia reported to ABC that the vote count for Gore in Volusia suddenly and inexplicably reversed by about 10,000 votes between 2:06 and 2:15 AM Wednesday, a change confirmed by ABC staff, who also saw the strange shift in their own numbers.  By next morning, it was observed that the obscure Socialist Workers Party candidate James Harris received 9,888 votes in that one county--out of 67 counties, and a total state vote of 10,469 statewide.  He received an average of 2 votes from every other county, no more than 88 in any one county, but almost ten thousand in Volusia?  How could anyone believe that is legitimate?  Computer error was the cause: a voting machine counted five times more votes than were actually cast.  Only a hand count was able to catch this, as well as another 300 ballots that another machine "ignored" because of a power outage.  In the end, the balance only went to Gore by 98 votes.  Yet Bush opposed this hand count, despite the fact that any reasonable person could see it was required there (and the Republican-dominated election committee in Volusia saw more clearly, voting unanimously for a hand count).  Why would Bush want a computer error to override the will of the people?  Can we have any trust in his character if he instead tells the people of Florida to eat dirt?  "I trust computer errors, not the people!"  Shall that be his new slogan?

People Can't Be Trusted, but Machines Can?

The hand count is not simply Al Gore's action.  Florida citizens are bringing complaints and lawsuits, and would do even if Gore told them not to.  It would be inappropriate and unstatesmanlike, certainly, to challenge a vote for no good reason, or for purely selfish reasons.  But it is the very nature of statesmanship to defend the rights of citizens and uphold the law, and clearly there are violations of the law and citizen rights in these two counties, thus the stand-up thing to do is to make sure these citizens have their day in court and that the wrongs against them are righted.  Bush and Gore should be fighting side by side for these people.  Instead, Bush abandoned them.  The people have every right to pursue this and ought to be supported, not belittled.  Bush may be supporting this callous tactic engaged by his staff, deriding and brushing aside the citizens of Florida, because he is panicking, and panicking because it seems clear that Gore actually won in Florida by a several-thousand vote margin exactly as the scientifically-conducted exit polls originally concluded--that is, if we trust the people instead of machines and bureaucrats.  But selfish panic has led him to abandon the people, and defend the machines and the bureaucrats.

Once he failed to stop the hand counts, the Bush team tried a new tactic: arguing that hand counts were so inaccurate they could not be trusted.  Apparently, on this view, every President elected in our first hundred years didn't deserve it because of hopelessly inaccurate hand counts.  The Bush overseers then found a handful of mistakes and argued that they invalidate the whole process, failing to recognize the self-contradiction: the errors were found, proving the system of review works.  In a hand-count, ballots are counted two to three times by different people, and this count is overseen by several Democratic and Republican monitors with the legal power of objection, and all questionable ballots are reviewed by the election committee.  It won't be flawless, but you can't get more accurate than that, and every objective observer agrees: as reported by the New York Times, "Election officials in several states said a manual recount was a simple and reliable way to correct mistakes in the computerized counts," and all the manufacturers of ballot-counting machines have agreed that "the most precise way to count ballots is by hand."  This is because even the best card-counting machines have a rate of error "under realistic conditions" of 1%, meaning the vote in Florida is only accurate to within +/-60,000 votes (the rate could be worse: a study in 1975 found that, in California, card-counting machines like those used in Palm Beach county were 1.5% in error).  And yet we are deciding the election by margins in the hundreds.  The manufacturer of the machines used in some of the contested Florida counties said that even under ideal conditions (brand new, perfectly cleaned, no power disturbances) the rate of error was 0.01%, which means +/-600 votes, very near the actual margin in that state.  And these machines are used disproportionately in Democratic counties in Florida, according to the Washington Post.  Yet even the much-more-accurate paper-and-pen ballots can fail us: these were used in Volusia county, and computer error bungled the entire count.

Blatant Hypocrisy

George Bush and his lawyers and aides have all attacked the very concept of a manual recount as too fallible to be legal.  Yet I watched as his lawyer said that the recount was unfair because it wasn't being done in all Florida counties, even though Bush had the chance to ask for it.  Spotting the contradiction, he was asked by one Florida Supreme Court justice whether his client wanted a manual recount in all the other counties, since he had just said that not doing this was one of the reasons it was unfair.  What was his answer?  He said Bush did not want such an action because he did not believe manual recounts were fair.  One wonders, then, why he had just argued it would be more fair to extend the hand count statewide?  This is the sort of self-contradiction that plagues the Republican effort to oppose manual recounts.  And this particular exchange was a mistake on their part, since the Florida Court included in its decision no action for such a remedy, since Bush had declined it.  His lawyer effectively shot him in the foot.  Curiously, after the decision, the Bush team began emphasizing the lack of uniform standards in hand counts, even though, when both sides were before the Florida Supreme Court, only the Democrat's lawyer begged the court for such a uniform standard.  Where was Bush's desire for uniformity when he had his chance in court to ask for it?

Originally, the Bush team attacked the whole concept of manual recounts as unviable.  But over time they focussed only on the lack of uniformity (yet they have never brought any complaint to any court seeking such a uniformity).  What happened to change their argument?  The discovery of an embarrassing fact: in 1997, George W. Bush, as governor of Texas, signed into law in the state of Texas a collection of reforms to section 127 of the State election code, a section that already included the following subsection:

(b) If the automatic counting of electronic system ballots becomes impracticable for any reason, the manager may direct that the ballots be counted manually at the central counting station. 

(c) The procedure for manual counting is the same as that for regular paper ballots to the extent practicable.

(d) ...in any manual count conducted under this code, a vote on a ballot on which a voter indicates a vote by punching a hole in the ballot may not be counted unless

(1) at least two corners of the chad are detached;

(2) light is visible through the hole;

(3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote;

(4) or the chad reflects by other means a clearly ascertainable intent of the voter to vote.

(e) [This] does not supersede any [other] clearly ascertainable intent of the voter.

This is now Tex. Elec. Code Title 8 § 127.130 (1993). He himself was elected under this law in 1994, and had ample opportunity to change it, especially when the 1997 reform bill was pushed through, which he signed.  Yet this is essentially the same standard being used in every Florida county.  If anything, some counties there are being more conservative and rejecting votes that Texas law would accept.  Why does he suddenly oppose it only now, when his own hide is at risk?  The word "hypocrite" comes to mind.  The Bush team has attacked the counting of "dimpled chads," yet Texas state law, a law governing his own election in that state and that he had six years to change, says they are to be counted (127.130.d.3), and not only that, but any "other means" to "clearly" ascertain the "intent of the voter" is mandatory.  Who determines the "intent" of the voter?  The county election committee members, just like in Florida.  In other words, every argument Bush has marshaled against the manual recount in Florida applies equally well as an objection to the law in his own state.  Bush said in his November 22nd address that "Voters who clearly punched prefaces in other races on the ballot, but did not do so in the presidential race, should not have their vote interpreted by local officials in a process that invites human error and mischief."  If he actually believes that, then why didn't he take the opportunity he had in 1997, or in the whole six years of his term as governor, to strike or modify 127.130, which mandates that very thing?  Probably because he never paid attention to the election laws in his own state, even when he was amending them. But whatever the case, I suspect he really knows it is the right thing to do, and his attack upon it now is pure selfish politics--even leading him to support shameless intimidation tactics, which successfully forced Miami-Dade county to give up the hand count there, as reported by the St. Petersburg Times.  Hence I think my opinion is well supported by the facts: whether secretly agreeing with his own state laws or not paying attention to them, Bush abandoned the people.

Attacking a System That Works

The Florida Supreme Court Decision was a true drop of reason in a sea of confusion, a model of sense for everyone everywhere to follow.  Of course, in his November 22nd address Bush declared:

We believe the justices have used the bench to change Florida's election laws and usurp the authority of Florida's election officials. We believe the court overreached....The court had cloaked its ruling in legalistic language. But make no mistake, the court rewrote the law.  It changed the rules, and it did so after the election was over.

He emphasized, instead, that "Writing laws is the duty of the legislature; administering laws is the duty of the executive branch."  He forgot to add that interpreting the laws and holding the executive branch accountable for them were the duties of the judicial branch.  Bush has crafted his rhetoric to attack the legality of a perfectly legal decision, claiming it was mere "legalistic language" that "rewrote the law" and that it changed rules that were in place before the election.  None of his charges are true, and this gives us the best example of how Bush has abandoned the people--by lying to them, or paying no attention to how the court is defending them.

The Florida Supreme Court was faced with a real problem: confirmed and undeniable contradictions in the law (Palm Beach VI, p. 18).  When the law contradicts itself, it is the duty of the judicial branch to resolve the conflict.  To paint such a resolution as "changing the rules after the fact" is an absurd distortion of the truth.  But as it happens, the law did not on close analysis set a seven-day deadline for official certification as the Bush team charged, and the "discretion" of the Florida Secretary of State was not what she claimed it was.  Contrary to Republican rhetoric, the Supreme Court decision actually upheld the clear intent of the law, and overturned the administrative misconduct of an executive official.  This may seem unbelievable, given how poorly the decision was covered in the press and how shamelessly the Bush propaganda-mill has spun it, so I will back up every claim here.

The Florida Supreme Court Decision

It was a known fact, even before Bush pushed his lawyers to seek a supreme court decision in the first place, that Florida case law was soundly against him.  The Florida Supreme Court took as its central, guiding principle its previous decision of 1975 that "The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard" (ibid. II, p. 9).  It had already ruled in 1977 that "unreasonable or unnecessary restraints on the elective process are prohibited," for rights trump all laws (VIII, p. 31).  And every case for a hundred years in that state has consistently ruled that wherever the intent of the voter can be ascertained, even a voter who failed to follow instructions, the intent is to be counted (the most recent examples of such rulings cited by the court were in 1988 and 1998; but they also cite clear examples from 1933, 1939, and 1940, cf. VIII, p. 32).  The court has always held that the right of a citizen's vote to be counted overrides any law that would frustrate that right, and once again it held, to Bush's frustration, that "technical statutory requirements must not be exalted over the substance of this right" to vote (VIII, p. 32).  This is the most basic principle on which our country was founded: no law can deprive the people of their rights.  Any law that does so is invalid.  The Bush team ignored this and instead argued that the law should trump the rights of citizens.  I watched them effectively argue this as the hearings were broadcast on network TV.  Then Bush converted the real story--that rights render contrary laws null and void--into a crafty piece of rhetoric: the way he puts it, the court didn't trounce illegal laws, it "changed the rules."

Florida law was also clear, and entirely against Bush.  Section 101.5614(5) of the Florida State Code states in no uncertain terms that "no vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board," and the power of the board to make that call is further supported explicitly by 102.166(7)(b).  If Bush really believed the law should reign, then he would not be arguing against what the law plainly says.  The Supreme Court simply upheld the law, yet he ignores that fact and instead argues that they "changed the law" when in fact that is what he was trying to get them to do in the first place, by asking them to rule against 101.5614.  Hypocrisy is the word of the day.  And he has no rationale for opposing Gore's contest of the election, for Florida Law plainly says that the election results can be contested (even by a citizen of Florida) if there is a demonstrable "rejection of a number of legal votes sufficient to change or place in doubt the result of the election" or indeed "any other cause or allegation which, if sustained, would show that a person other than the successful candidate was the person duly nominated or elected to the office in question" (102.168(3)(c) & (e)).  That is perfectly clear.  So why is Bush scoffing at the law?

The court also refuted the Bush campaign propaganda against hand counts with a simple and elegant statement:

Although error cannot be completely eliminated in any tabulation of the ballots, our society has not yet gone so far as to place blind faith in machines.  In almost all endeavors, including elections, humans routinely correct the errors of machines.  For this very reason Florida law provides a human check on both the malfunction of tabulation equipment and error in failing to accurately count the ballots. (IV, p. 14)

They refer to Florida Statute 102.166(5) as proof: a manual recount is specifically allowed to correct "an error in the vote tabulation which could affect the outcome of the election."  The court was thus upholding, not changing, the law.  And it cited at length the 1990 decision of the Supreme Court of Illinois that said the same thing: under no circumstances shall a vote be ignored simply because a machine didn't count it (VIII, p. 34-5).

The Bush-team's other charge that the deadline nullified the hand counts was also found to be groundless on the law: the mandatory language of a 1951 statute was superseded by the permissive language of a 1989 emendation (VI.B, p. 23-6).  But Bush's lawyers then argued that this permissive language left all the discretion in the hands of the Secretary of State (who, as we know, is not only a Republican, but an active Bush-campaigner).  However, in making this argument, they ignored the law again: "write-in, absentee, and manually counted results shall constitute the official return of the election" which is not due by any specific date, though a deadline for absentee ballots was set for ten days, not seven days, after the election, and there were fines established for sending late county returns to be included in the certified count, proving that there was certainly no inviolate seven-day deadline for certifying the official returns (101.5614(8); VII, p. 29).  Though the Secretary of State argued that she had the "right" to reject late returns under the permissive terms of the law, the court trounced that opinion by citing the legal reality that constitutional rights trump all laws as well as the powers of magistrates, and the decision is worth reading in full:

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 the integrity of the electoral process...by precluding a candidate, elector, or taxpayer from contesting the certification of an election...or by precluding Florida voters from participating fully in the federal electoral process.  In either case, the Secretary must explain to the Board her reason for ignoring the returns and her action must be adequately supported by the law.  To disenfranchise electors in an effort to deter Board members, as the Secretary in the present case proposes, is unreasonable, unnecessary, and violates longstanding law. (VIII, p. 33-4)

They go on to note a 1975 ruling that voters "will not be disfranchised solely on the basis of the failure of the election officials to observe directory statutory instructions," a very reasonable point to make: we do not lose our right to have our vote counted just because an official misses a deadline.  So this time the court ruled that "the circumstances under which the Secretary may exercise her authority to ignore a county's returns filed after the initial statutory date are limited" by the pre-eminent constitutional right of the people to vote.  The court thus found that the secretary's actual decision to ignore the counts "summarily disenfranchise[d] innocent electors" without cause and was therefore illegal (VIII, p. 38).  Any reasonable person would agree.

Conclusion

My faith in our government and our nation has been strengthened like never before by this battle.  We have shown to the world that the rule of law prevails over violence or political passion.  In court, broadcast for all to see, were seven men and women, black and white, calmly and rationally deciding the fate of a nation.  The opponents before them did not throw chairs or fists.  They argued their case, in due order and with equal time.  In the end, rational thought prevailed over propaganda and rhetoric.  The final decision was more than reasonable, and did nothing to jeopardize our constitutional system.  To the contrary, it put the interests of citizens above those of candidates for President.  The world saw what it means for a citizen's rights to trump all technicalities and overrule decisions of people in power, and they saw it actually happen.  There is no better lesson the rest of the world could learn from us.  There is no greater achievement than this system of government that truly works, unshakable by any crisis.

It seems most reasonable that a hand-count in all of Florida should be conducted, if Bush really wanted what was fair instead of what only helped him, and something should be done to redress the violation of the law in Palm Beach county, where the will of the people was silenced by an illegal ballot.  Bush may yet still win in the end, but that doesn't mean these things should not be done.  If he really believed in the people, he should be supporting them.  I wonder if he will move to reform the voting system if he becomes President?  He ought to have enough sense and compassion to get the most accurate mechanized counting methods (like the simple Scantron) employed universally, with mandated annual cleaning and maintenance.  The U.S. Senators from New York are already considering a bill to that effect.  I hope our next President supports it.  But right now Bush has already broken a campaign promise out of selfish panic, and that is not a good sign.  Already he has lied and ignored the law and the rights of citizens, and made no effort to seek bipartisan solutions to the perceived problem.  Far from cooperating with a reasonable process, he has created the bitterest partisan warfare we have seen since the Lewinsky scandal.  Far from calming tensions by being humble before the law and honest with the American public, he has fueled the battle with deceptive rhetoric.  I hate to say it, but I told you so.

Author's Note: I firmly believe in always correcting my mistakes, and one such mistake was discovered and corrected above shortly after this essay was published: I erroneously read the Lexis-Nexis database of state codes as indicating that the Texas hand-count law was passed in 1999, when in fact it was passed in 1986 and amended in 1993. As a result, I had incorrectly attributed an even more extreme hypocrisy to George W. Bush than the facts warrant. I sincerely apologize for the error, and thank our readers for pointing out my mistake.

Sources:

"Florida Ballot Brawl," CBS News.

"Moving Toward a Lawsuit," ABC News.

"Vote uncertainty tugs at Buchanan," The Atlanta Journal and Constitution Nov. 10, 2000 (2E).

"Alas, Vote-Count Machines are Only Human," The New York Times Nov. 17, 2000 (A1:4).

"Florida's Unsung Heroes," The Washington Post Nov. 17, 2000 (A44).

"2 Systems, 1 Punch Problem: 'Chads' Likelier in Democratic Areas," The Washington Post Nov. 17, 2000 (A27).

"The World Watches as DeLand Counts," The Deland Beacon Nov. 14, 2000.

"Political Bedlam," St. Petersburg Times Nov. 23, 2000 (1A).

Palm Beach County Canvassing Board, etc., et al. v. Katherine Harris, etc., et al., Fla. S.C. Nov. 21, 2000. [click here for pdf download].

 

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