January 2010

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I though this was a good time to revisit something I wrote after the Supreme Court decided the 2000 election. I consider that election to be the single, most undemocratic event of my life time.




by Toni Seger

I've never missed an opportunity, large or small, to vote in my life, but this is the first time it hasn't counted. I don't live in Florida, I live in Maine, but it doesn't matter. More than one hundred million people actually went to the polls in 2000 to vote for President, but, in the end, only 5 votes counted. If that doesn't sound like a democratic system, it's because it isn't and I think the implications of that action could be very far reaching.


We're all going to accept George W. Bush as our President because Americans are generally civil people who believe in the rule of law, but until now, for better or worse, elections were settled by votes and not by judicial muscle. I don't think this election would have pleased our Founding Fathers.


During the debates that framed the Constitutional Convention of 1787, James Madison wrote the following about the method by which we should elect our President:


The election must be made either by some existing authority under the National or State constitutions—or by some special authority derived from the people—or by the people themselves.           


In the end, the framers settled on a compromise. The people (that's white males with sufficient property to qualify as landed gentry), would vote for electors (i.e. electoral college) who would, in turn, choose the President. In this manner, the system would be protected from the tyranny of the mob. Presidents would be elected by a pre-qualified group of gentlemen who had been chosen by a pre-qualified group of gentlemen. In the event of a tie, the electors would turn to the legislature as that special authority whose representative power was derived from the people. Madison made it clear, in his notes, that, in no event should that special authority be the unelected judiciary whose oversight must be kept separate from any possibility of political taint.


So, it was very disconcerting for me to watch George W. Bush appointed by five unelected judges who have spent their long and distinguished careers attacking other justices for legislating from the bench. Clearly this opinion, Bush v. Gore, will be studied for a long time to come and in great detail, with arguments on both sides. However, in a cursory view, it's hard for me to recognize the same conservatives who have spent their lives arguing for judicial restraint and the preeminence of states' rights. When they overruled a state supreme court on an issue involving elections, these five members of our highest federal bench violated all precedent by inserting themselves into a process which the Constitution makes clear the court does not belong. To quote Justice Stevens' dissent: "The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors."


Bush v. Gore will be a hard case to use as a teaching tool in law school. Even as my own state of Maine conducted manual recounts in close legislative races this year, the Bush v. Gore opinion questioned the entire recount process. As with all Supreme Court opinions, this ruling did not just apply to Florida. The function of our highest court is to speak to and for all of us. For example, Brown v. the Board of Education of Topeka, Kansas didn't desegregate one school in Topeka and Roe v. Wade didn't allow one woman to have an abortion.


Just to add to the confusion, however, the majority opinion in Bush v. Gore insists that "Our consideration is limited to the present circumstances..." How do we reconcile that with 'Stare Decisis', the great judicial principle that each opinion is another consistent layer built on the previous opinion all the while laying the groundwork for the next opinion. Stare Decisis can be summed up as 'never disturb an existing precedent' and, until now, has always been the conservative mantra.


Finally, it's also interesting that the Bush v. Gore opinion was issued 'per curiam' which means none of the five majority justices wished to be identified with it. I can't say I blame them for feeling that way, but I can't say I respect it either.


The 2000 election will also be a difficult civics lesson for young people to grasp and for adults to convey. It seems to be saying that in a close election every vote counts, but in a very close election, no one's vote counts...


The United States has used a decentralized system of voting for our entire history leaving questions of technology and technique to be determined on a county wide basis. Will we, now, regularly face lawsuits after close elections as candidates use Bush v. Gore to question the manner in which votes were cast instead of simply recounting the votes and finding out who won? Or, will we actually accept the notion that Bush v. Gore only applied to this particular case and never quote it again?


I don't envy George W. Bush any of this. He didn't win the popular vote and if, at some point, all the votes are finally counted in Florida, we could find out he didn't win the electoral vote either. I don't envy the country as we head into an economic slowdown. Presidents need legitimacy if they're going to be strong and our new President may never be seen as legitimate by a sizable portion of the electorate. Whatever weakens the President weakens all of us.


There aren't any answers for all of this, but that doesn't mean the questions are going to disappear. Once again, Justice Stevens said it best:


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.


Looking back from December, 2009...

In the intervening time since I wrote this essay, I haven't had my confidence in the Supreme Court restored. In 1974, when the Supreme Court decided the infamous case of Richard Nixon's secret tapes, I thought the Supreme Court was an unmovable rock of democracy you could always rely on. Naturally, I had a lot of disappointments after 1974, but I still believed right up until the high court agreed to decide the 2000 election that it would not violate everything in our history by taking that step. I think history will rank Bush v. Gore with the court's worst decisions; Plessy v. Ferguson, Dred Scott, etc.


Co-owner of a media/communications firm; ProseWorks(tm) Associates since 1992, Toni Seger has been a professional writer for four decades. Seger is the author of "The Telefax Box", the first in a satiric trilogy about our overly mechanized lives available at https://www.CreateSpace.com/3335778 She has produced and directed original plays for stage and television and is an award winning film maker with endorsements from Maine Public Broadcasting. Her film, "The Force of Poetry" is available at https://www.CreateSpace.com/260202