December 13, 2000
Supreme Ironies
No Closure, No Peace
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
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