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Supreme Ironies

No Closure, No Peace

by Alexander Cockburn And Jeffrey St. Clair

On the one hand the calls for “closure”, “finality” and national unity. On the other, Justice John Paul Stevens’s bitter summation: “in the interests of finality however the majority [of the US Supreme Court] effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent, and are therefore legal votes under [Florida] state law, but were for some reason rejected by the ballot-counting machines 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 law.”

Back in the 1980s radicals used to write about “demonstration elections”, conducted in Central American countries such as El Salvador at the instigation of the US government and micromanaged by the CIA. After the money was appropriately spread around, the opposition’s more tenacious and principled leaders either butchered by death squads or driven underground, and the unruly poor thoroughly intimidated, the election ritual would take place amid complacent orations about the democratic way from North American commentators.

We’ve just had a peaceful and non-lethal version of these “demonstration elections” in the state of Florida and no calls for closure will erase that national disgrace, least of all in the minds of those who were denied their democratic rights. Don’t forget, beyond those who made it to the polls in Florida, there were those denied even the dubious benefits of that access.

Beyond the obsession about defiant punch card machines, obstacle course ballots, and pregnant or hanging chads, there are more serious issues that, in the miles of print written about the election in Florida, have received barely a mention: the systematic intimidation of poor people, blacks, hispanics, immigrants and the disabled.

Try this story from Ron Davis of Miami-Dade County. “Our family always votes together. This year it was my turn to drive. After work, my wife Lisa and I borrowed a van from a friend and picked up my brother, my parents and my uncle and aunt. About a block away from the polling place, we were pulled over by a county sheriff. He looked in the van and asked me if I had a chauffeur’s license. I said, this is my family and we’re going to vote. He said, ‘You can’t take all those people to the polling place without a license. Go home and I won’t write you a ticket.’ I was tired of arguing. We went home and all tried to vote later. But it was too late.”

Or how about this account told to us by Dave Crawford of Broward County: “I showed up at the polling place with my five-year old daughter. I was stopped at the door by an election official. He asked me my name. I told him. He said, ‘Son, we’ve got a problem. You’re not allowed to vote.’ I asked him what the hell he was talking about. He said, ‘Son, says here you’re a convict. Convicts can’t vote.’ He had this list in his hand. And I told him that I’d never even been arrested in my life. I handed him my voter ID card. He just shook his head, smiled and pointed at a list. He never showed me my name. My daughter began to cry and I left in disgust.”

On November 7, blacks and hispanics turned out to vote in record numbers. But tens of thousands were shunted away before they reached the polling booth. The scenes, many of them narrated during an extraordinary 5-hour hearing sponsored by the NAACP and the Lawyers Committee for Civil Rights Under Law, harked back to the pre-voting rights act South, when black voters were denied the franchise through a variety of schemes, from the poll tax and character vouchers to loyalty oaths and literacy tests.

Across Florida, black voters were turned away from the polls by hostile election workers who demanded voter ID cards, even though those weren’t required from white voters. Police set up roadblocks in black precincts around Tallahassee. Other police intimidated voters by asking if they were felons. Polls in black precincts closed early, often with dozens of voters waiting in line. Other polls were moved from their original locations without notice. Dozen of black college students who had registered this summer weren’t permitted to vote. Other voters were told that their names weren’t on the voter rolls only to find out later that they were. Haitian voters were often asked for two forms of identification.

Stacey Powers, a former cop who is now a news director at a Tampa radio station, spent the day visiting different polling places in Tampa’s black neighborhoods. She said dozens of black voters were turned away after being told that their names didn’t appear on the voting registers. Powers said that when she reminded some voters that they could sign an affidavit and then vote, she was booted out of the polling place.

“There were illegal poll watchers, threatening people, telling them: ‘I know where you work. You’re going to get fired’” reported Charles Weaver, publisher of the Fort Myers-based Community Voice.

A catalogue of these accounts was assembled and shipped off to Janet Reno, who, as attorney general, is charged with enforcing the Voting Rights Act. So far, the Clinton Justice Department hasn’t taken one step to investigate the charges. “This is a strange stance from the Justice Department”, said Kwesi Mfumi, head of the NAACP. “They just seem to get colder to civil rights as the administration draws to a close.”

Then there were the more than 12,000 largely black voters who were evicted from the Florida voter rolls in May, supposedly because they were ex-felons. In the sunshine state the system functioned in a particularly devious way. Nearly all of those booted off the rolls turned out not to have had criminal records. But nearly all of them were black. Some 8,000 went through the legal red tape to assert their voting rights. The remaining 4,000 didn’t bother. Nearly all of those votes would have gone to Gore. The list was prepared by a company known as Database Technologies, a firm picked by Secretary of State Katherine Harris. As the London Guardian reported, Database Techologies is a subsidary of ChoicePoint, which is has been under investigation for misusing personal information gathered state computers. ChoicePoint’s beleagured CEO, Rick Bozar, made a timely $100,000 contribution to the Republican National Committee early this year.

Even those who made it inside the polling booth found out later that their votes didn’t tally. While the press and the Gore pr machine raged about the injustices done to Jewish voters by the infamous Butterfly ballot, the real story, even in Palm Beach County, was the effort to suppress the black vote. Democratic pollster Patrick Caddell, who speaks venomously of the Gore machine, was one of the first to point this out. “I looked at those precincts,” said Caddell. “And it struck me that most of them were in predominately black areas. Of course, they would be just as unlikely to vote for Buchanan as the Jewish retirees. But the Gore people made a deliberately effort to spin it as a case of 4,000 elderly Jewish Democrats being duped into voting for a Nazi.” A similar point was made by Adora Ori, the president of the NAACP’s Florida chapter. “A closer examination has to be made. The precincts that have the most irregularities at this point seem to be black and minority.”

The Democratic Party has displayed a marked disinclination to make any political capital out of the denial of black and haitian voting rights in Florida. After a couple of days hammering the issue Jesse Jackson was evidently told to cool it.

In Duval County, a Republican stronghold, about 25,000 votes were tossed out by the canvassing board. More than 17,000 of those came from black precincts. “That so-called voter error rate raises real questions about what was going on up there,” says Kendrick Meek, a Florida state senator from Miami. Duval County has one of the highest illiteracy rates in the United States. More than 47 percent of the voting age population is considered functionally illiterate, making it nearly impossible for them to comprehend Florida’s obscure ballot. Top to it off, according to numerous accounts, election workers regularly demeaned as being “dumb and retarded” those voters who asked for help.

Throughout Florida, more than 187,000 votes were dismissed, more than half of them from black precincts. Nationally more than 2.8 million ballot were eliminated, often because of some trifling error by the voter. A disproportionate percentage of these discarded votes originated in black and hispanic precincts.

Although more than 95 percent of blacks supported Gore, election offices controlled by Democrats seemed just as determined to suppress the black vote as Republicans. Listen to this account from Palm Beach County resident Mary Didier. “My husband and I moved to Palm Beach from New York City eight months ago. We had just retired as public school teachers. We registered to vote at the motor vehicle department when I got my license. Months went by and we never received our voter cards. About six weeks before the election I began to get nervous and called the DMV. They said it wasn’t their problem and that I should contact the election office. I drove down there. They had no record of us. I said, ‘I want to re-register now.’ The woman told me to wait a few weeks and see if the card came. We waited. It never came. The week before the election, I went in again. They said, ‘Do you have any proof of how long you’ve lived in Florida.’ I gave showed them my driver’s license. They said that wasn’t good enough. I got mad and left. Then I called the state election’s office. They said they didn’t have time to deal with a minor issue like this. It was the first time I haven’t voted in 30 years.”

Didier was not alone. In West Palm Beach the votes of more than 2,000 recent Haitian immigrants were rejected because of the maze-like ballot and the lack of Creole interpreters. “There were lots of Spanish translators to make sure all of the Cubans voted, but none who spoke Creole”, Ken Murtaugh, a poll watcher in West Palm Beach, told CounterPunch. “Most of them were utterly confused. Others just walked away. It was pathetic. They were treated as being subhuman.”

In other counties, Haitians were harassed for their voter identification cards or told that their names couldn’t be found on the voter rolls. Others were threatened with deportation. In one precinct with Creole translators, election officials ordered the interpreters not to speak to Haitian voters or risk being tossed from the polling place.

There should be no closure on these outrages, even though it is hard to imagine George W. Bush’s Justice Department exerting itself in this regard. Nor should there be closure on what Justice Stevens stigmatized as the refusal, endorsed by the 5-4 US Supreme Court majority, to recognize the clear voting intentions of those who did managed to gain access to Florida’s dubious voting machines.

The saga of shenanigans in Florida has been a bracing civic education, not least because we have learned to appreciate yet again that judges’ politics weigh far more strongly upon their opinion-forming faculties than a thousand precedents in American constitutional law. A strict constructionist on states’ rights like Justice Scalia can become a federalist overnight, when the chips are down.

This has been a year when some members of the US Supreme Court have discredited themselves thoroughly. Justices Rehnquist, Kennedy and Scalia all have sons who were involved in the Microsoft case, from which the Justices nonetheless declined to recuse themselves.

So far as the Florida decisions are concerned Scalia should certainly have recused himself since he had more than one conflict of interest. For example: on November 7 his son John joined the Miami law firm Greenberg, Traurig. The following day Barry Richard, a partner in that firm, said he was called to represent Bush in Florida.

Clarence Thomas’s wife has been working for the Heritage Foundation which is putting forward resumes for appointments in the Bush administration. Section 455 of Title 28 of the United States’ code requires recusal if a spouse has “an interest that could substantially be affected by the outcome of the proceedings.” Other family relations, such as Scalia’s, can cause for recusal. Scalia has leaked stories to the effect that if Gore were to be elected he would leave the Court.

Here’s a pewter lining for Al Gore. Paradoxically, the US Supreme Court may have helped his political career. Suppose the Court had found in Gore’s favor and permitted the recount to continue. It’s quite possible he would have lost the recount and had no future at all, by dint of having dragged out the election and ending up as the utlimate sore loser. Or suppose Gore won the Florida count by a few votes and bulldozeed his way into the White House. He’d have been a one-termer for sure, amid recession and the incandescent hatred of the Republicans for an illegitimate occupant of the Oval office. Now, despite a dismal campaign, he emerges as a man who can claim with some merit that he was the popular choice, winning nationally by nearly 300,000 votes; that he probably won the state of Florida, given the more than 30,000 votes in Duval and Palm Beach counties cast for him but disallowed because of double punching; that he may have well won the legal vote had it not been for the Republican strict obstructionists. Thus Gore may have already fended off challenges as the comeback Democratic candidate of 2004.

It is true that little in the way of substantive issues separated Bush from Gore. That is surely why the Florida imbroglio has been so mostly untroubling . Never has there been greater fuss over smaller stakes until we come to Justice Stevens’s bottom line.If this has been a constitutional crisis, the fates gave us the right time to have one.

Al Gore made his call for unity last Tuesday night, for the “coming together” demanded on a nightly basis by Larry King and the others. It proves Ralph Nader’s point and once again vindicates his candidacy, one that in Florida and New Hampshire denied Al Gore conclusive victory on November 7.

The weeks since November 7 have entirely vidicated the accuracy of Nader’s assault on the corruption of the two party system. We’ve seen Republicans toss aside their supposed dedication to states’ rights, same as did Scalia as he bent his supposed principles to elect a President he hopes will make him Chief Justice. We’ve seen Democrats equally eager to assert states’ rights, while exhibiting absolutely no disquiet about the actual application of states’ rights in Florida, meaning the racist efforts described above to stop blacks and other minorities from voting at all. Not a word from Gore on this. Honesty is divisive. It was a “demonstration election” in every sense of the word. It demonstrated how rotten the whole system is.

The Bush Affairs: a whole new meaning to triangulation