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Potomac Crossings
--By George Mason
One Free Pony. No New Taxes
Riding his innovative campaign platform to a landslide victory, Albert W. Bush has been selected as our next president. The insightful electorate has given him a firm mandate to carry on Clinton policies while making substantial change provided no cost is involved.
Enough of fantasy land. Back to reality. Can Bush be Borked? That is the question. Whether Bush should be Borked is a matter of party affiliation. The prevailing Bork Bush strategy from the Democrats has three stages: Win. Failing that, share power. Failing that, destroy any possible Bush mandate to rule. Let’s look at them one at a time.
Win
The experienced impeachment operatives of the Clinton wing of the party have been dispatched to stir up constituents and appear in the media with as many divisive and confusing messages as possible. The underlying theme is that they can’t get a fair shake in Florida because Jeb Bush is governor. Therefore, the will of the people is being thwarted. The Clinton tactics of delay, frivolous court appearances and uninterrupted high emotion attempts to try their case in the court of public opinion. Their first objective is simply to fill the time between now and November 17th with a barrage of excited negative comment. That is the date when the overseas ballots are due and the official certification of results is published. With such a low Bush margin, it is possible Gore could win the final count. The second objective is to discredit the electoral college system and create a groundswell to ignore it by emphasizing that Gore won the popular vote.
On the legal front, it is highly unlikely that a motion to hold another partial election would prevail. The Supreme Court has held that an unfavorable location on a ballot is not a form of constitutional discrimination. In Palm Beach, the ballot form was approved beforehand by Democratic Supervisor of Elections Theresa LePore. A serious legal point is that both political parties signed off on what is apparently an illegal ballot. All Florida ballots are required to have the box or circle in which to vote on the right hand side and the candidate listings are to descend in one column. This ballot was changed in order to have larger type that older voters could read more easily. Some 20,000 ballots have been brought into question but another 400,000 ballots in the county seem to have been handled without difficulty.
The Florida Court of Appeals has held that "one who does not avail himself of the opportunity to object to irregularities in the ballot prior to election may not object to them after." As reported by David Kopel of the Independence Institute, in a similar case dating from 1974 in St. Petersburg, the Florida Second District Court of Appeal held:
Keeping in mind that we are talking about a claim made after an election, and not one which may have been enforceable before, if a candidate appears on the ballot in such a position that he can be found upon a responsible study of the ballot, then such voters have been afforded a full, free and open opportunity to make their choice for or against that particular candidate… His (the candidate’s) constitutional rights end when his name is placed on the ballot. Furthermore, it assumes his (the voter’s) ability to read and his intelligence to indicate his choice with the solemnity of the occasion.
A second front is the Electoral College. With commercials, print and TV media appearances, whisper campaigns and even candidate travel, a message will be sent. Michael Long, writing in Front Page magazine, says that the Democrat’s message will be "Al Gore won the popular vote. The electors of your state have a moral obligation to enforce the will of the people. Contact your electors and let them know that you want them to vote in the Electoral College for the popularly elected candidate as President."
This message will be concentrated in the half of the states that do not bind their electors to present the vote as the state decided. It will also be aimed generally at the professional media, academic and entertainment industry supporters who will be more than willing to tell the people that their rights are being taken away by the same crowd who tried to take their president away through impeachment.
It is not, of course, an exercise in veracity to assert that Gore won the national popular vote without resolving challenged votes in all states, not just Florida. In fact, some states also have such close final results that automatic recounts will be triggered. Voter irregularities are everywhere. As expected, challenges elsewhere are beginning to be placed.
Shared Power
With one seat still awaiting a final vote tally, the Senate will either be Republican 51-49 or be 50-50 with a Vice Presidential tie-breaker. Senator Robert Torricelli (D-NJ) and Senate Minority Leader Tom Daschle (D-SD) have announced the following strategy. "For the first time in 120 years, the power is going to be shared in the United States Senate equally between Democrats and Republicans."
Threatening to continuously disrupt business if they don’t get their way, the Democrats insisted that they expected to split power evenly on the committees. Since chairmanships are an election of the committee members under Senate rules, that would mean Democrats would likely chair some committees and have a voice in procedural votes. Senator Daschle promised a repeat of his disruptive tactics of the past two years if he did not get his way. "They (the Republicans) have very little to show for their record in the 106th Congress," he said, "In large measure that was because they included us so little. It is important that they recognize the error of their ways."
Tainted Mandate
It was not even seconds after the Florida race was "called" for Bush before television pundits sounded the theme that the election could not be considered fair because George W. Bush’s brother was the Governor. No evidence, of course, simply the assertion that the situation itself "proved" unfairness. Minority groups have already begun gathering charges of federal voting rights violations in order to bring Attorney General Reno into play.
Since then, of course, the Great Palm Beach County Do-Over Campaign has sought to establish sufficient national attention that any final decision in favor of Bush would be forever tainted. The "butterfly" ballot, though not the Florida printed format, has been properly used many places, including Cook County, Illinois. It has successfully been used previously in Florida as well. Traditionally, on a national vote of one hundred million, both parties agree to the convention that errors favoring one candidate have been offset by errors favoring the other and so they agree to let the numbers stand.
There is no doubt that the local ballot needs to be re-designed. The question is whether there is a legal remedy for this year. It is not the rights of the two presidential candidates that have been violated. If there proves to be any violation at all, it is of the rights of the citizens of each county. It would be hard to fathom that a voter would not know that he or she had punched a ballot twice and therefore needed to get a fresh ballot from an election official. In addition to recognizing personal responsibility issues, no judge wants to alter a national election for President even in the most serious and grave circumstances. It is highly unlikely that any selective district re-do voting will take place. Even less likely is the suggested remedy of a statistical adjustment to existing counts in selected precincts.
At the moment the overseas ballots are not available to be counted. They won’t be until November 17th. The Gore faction believes that many of the ballots are coming from Floridians living in Israel. The Republicans believe that the ballots are predominately coming from overseas military. No one knows until they arrive and are counted. Certification of the election results cannot be published under Florida law until these ballots are included.
The second presidential campaign has just begun. Both parties believe that they have won the vote in Florida and both believe that they played by the rules. Watch the message from the stock and bond market, the establishment and the international community. The day may come when wiser heads simply say "enough."
Once the final official count is known, the nation’s elder statesmen and women will not find going to court an acceptable answer. They may insist that one man cannot destroy the Constitutional change of government by ruining the chance to govern of the other man. They will be willing to call one man a patriot and a hero in history. They will call the other man Mr. President.
(PS. The title comes from a satire on National Public Radio.)
George Mason, 1725-92, was known as the Sage of Gunston Hall.
His Virginia declaration of rights, written in 1776, was the model for the first section of the Declaration of
Independence. A friend of Patrick Henry and Thomas Jefferson, Mason was an original drafter of the Constitution
and the first ten amendments to the Bill of Rights. He refused, however, to sign the final version of the Constitution
because he thought it did too little for individuals and, without the Bill of Rights, gave too much power to the
government.This column honors his memory.
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