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Electing from the bench

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© 2000 WorldNetDaily.com


There's nothing like personal experience to strengthen one's resolve, to turn a principle into a conviction. On Nov. 14, Leon County Circuit Judge Terry Lewis rewrote Florida's election statute and inserted three provisions the legislature had never enacted. Such judicial legislation not only neuters the right of Floridians to govern themselves through their legislature but in this case also hijacks the right of all Americans to elect their president through the electoral system. It should strengthen Governor George W. Bush's resolve to appoint only "strict constructionists" to the federal bench should he become president.

During the campaign, Mr. Bush repeatedly vowed to appoint judges who would "interpret the law, not make it" and who would not "legislate from the bench." That was the design of America's founders and the absolute imperative for self-government and the rule of law. In each case before him, the judge's job is to interpret the relevant law, apply it to the facts, and announce the result. As Black's Law Dictionary puts is, interpretation is "ascertaining the meaning of a ... written document." In that famous case of Marbury v. Madison, Chief Justice John Marshall said that a judge's duty is to "say what the law is."

The law before Judge Lewis in this case was Chapter 102 of the Florida Statutes. Section 112 is directed at county election boards, and reads, "Returns must be filed by 5 p.m. on the 7th day following the ... general election." The same section backs up this mandatory deadline by requiring the Secretary of State to fine each county election board member $200 for each day the returns are late. Even the definitionally-challenged Bill Clinton would have a hard time avoiding the clear meaning of this provision.

But wait, it gets even clearer. Section 111 is directed at the state election board and reads, "If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified."

So what is the law in this case? A specific requirement (backed up by mandatory fines) that counties certify their returns by 5:00 p.m. on the seventh day after an election (Nov. 14) and a specific requirement that the state ignore the counties that do not. Not only is each provision clear by itself, but is in perfect harmony with the other.

That's "what the law is" in this case. The facts to which this law must be applied are that some counties did not want to comply with the deadline because they were doing manual recounts after two machine counts had already been completed. Rather than being required to finish manual recounts by the deadline, they said the deadline must be waived for their manual recounts.

The judge's job here should have been easy. If the Florida legislature had worried that manual recounts could not be completed in time, it could easily have made an exception or set a separate or flexible deadline. It did not. Since judges are supposed to interpret different provisions of the same statute to be compatible rather than contradictory, the only conclusion is that the legislature intended that while manual recounts be allowed, they be finished by the deadline to avoid being ignored.

This was obviously not a result this local elected judge wanted to reach. Simply saying what the law is and applying it to the facts would make too many people too upset with him. So he decided to write a different statute, one that would appear to give something to everyone. He could not simply say that such a clear mandatory deadline does not exist; this is America, after all, not Wonderland. So he said that county election boards "must certify and file what election returns they have by the statutory deadline of 5 p.m. of November 14th." But because, he said, "it is easy to imagine a situation" where a manual recount could not be completed by the deadline, he ruled that counties doing manual recounts may "file supplemental or corrective returns." While "the secretary of state may ignore such late-filed returns," she "may not do so arbitrarily."

So Judge Lewis made at least three changes to Chapter 102 of the Florida Statutes. First, he amended section 112 by making the requirement that late-filed returns be ignored optional (he changed "must" to "may"). Second, he amended section 166 by adding a provision allowing for supplemental or corrective returns to be filed after the deadline. Third, he added a section requiring that decisions about ignoring late-filed returns be reviewed by, surprise, a judge. The Florida legislature enacted none of these provisions; they were legislated by Judge Lewis.

Rather than let the law determine the result, Judge Lewis let his desired result determine the law. Whether "it is easy to imagine" certain things or not, it must be the legislature and not a judge doing the imagining for it to change the law. He created an election system the people of Florida had chosen not to create, one that turns objective rules into subjective guidelines and takes decisions out of the executive branch and tosses them into the courts.

In his first inaugural address, President Abraham Lincoln warned against this very kind of judicial activism which puts judges in charge of determining public policy. In that instance, he said, "the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of [judges]." Should Mr. Bush have the opportunity to deliver his first inaugural address, he might want to remind America of this principle.




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Thomas L. Jipping is vice president for Legal Policy at the Free Congress Research & Education Foundation in Washington, D.C.




Jewish World ReviewNov. 16, 2000 / 18 Mar-Cheshvan, 5761
Thomas Sowell



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Desperate and ugly in Florida

http://www.jewishworldreview.com -- THE SAME ugly tactics that worked for the Clinton administration during impeachment are now being used by Al Gore in a last desperate effort to capture Florida and the presidency. These tactics include creating as much noise and chaos as possible in the media, with reckless and inflammatory charges made by professional loudmouths, led by demagogue laureate Jesse Jackson.

But when you look past the rhetoric and the mob scenes, what are the plain facts? Governor George W. Bush won the vote in Florida when it was first counted. He won again when the close vote was automatically recounted, in accordance with Florida law. Now the Democrats have come up with a third counting, using their own methods, which allow them to "interpret" ballots that were not cast in such a way as to be counted by the legally prescribed methods. The media keep referring to this re-recount in precincts controlled by Democrats as "hand-counting." But the real issue is interpreting ballots, not counting them.

Much has been made of nearly 20,000 ballots in Democrats' districts that were not counted by the official methods prescribed by law because these ballots involved voting twice or other irregularities. But even more than 20,000 ballots in Republican districts were disqualified for the very same reason. Out of all the people who voted in Florida, there were some Democrats and some Republicans who were sloppy or careless in the way they handled their ballots.

What does that prove? That human beings make mistakes and that millions of human beings will make lots of mistakes.

After all the complaints made about the kind of ballot used in some precincts, it turned out that this ballot was designed by a Democrat. It was then approved by officials of both the Democratic and Republican parties. Now some people want to change the rules after the game is over. The changes being sought include having some counties' votes counted by different methods than those used in other counties.

If the only kinds of elections that we accept are those that are lacking in human imperfections, then we are going to have a lot of vacant offices, including the Oval Office.

Voter fraud is a very serious crime and a very serious charge to make without hard evidence that will stand up in a court of law. If we are going to litigate every unsubstantiated speculation up through all the layers of the courts, then by the time it is all sorted out to everyone's satisfaction, the winner's term in office will have expired anyway.

The rule of law can survive only if we accept rules, whether or not we like the results they produce. We cannot just keep recounting and then re-recounting in new ways until we get the result we want.

What is the point of all the frenzied activity in the courts and in the media? First and foremost is the hope that somehow some way will be found to have Al Gore declared president.

The stakes are huge, not just for Gore himself but for the whole liberal-left agenda, so dear to the hearts of all sorts of movements, interest groups and ideologues. As a distinguished scholar once said: "The first thing a man will do for his ideals is lie."

The Supreme Court alone is enough of a prize to cause a political holy war -- or unholy war, given the orchestrated character assassinations launched to try to stop some nominees from being confirmed. Now many of the same shrill voices raised in these past jihads are raised once again in a desperate attempt to prevent the power to appoint Supreme Court justices from slipping from liberal hands.

If those who seek to overturn the election results through hysteria and political spin cannot succeed in that effort, then they can at least undermine the new administration that will take office next January by smearing it in advance as illegitimate. To the extent that the public buys this charge, the new president will be unable to mobilize the kind of public opinion that any president needs to get his policies and programs approved by Congress.

There was a time when people understood that the interest of the country is ultimately far more important than all these individual political interests. Even a man who was as much of a political operator as Richard Nixon understood that in 1960, when he refused to ask for a recount of a very close presidential election in which there were widespread reports of fraud against him. Are we no longer capable of coming up to this level?


JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, A Personal Odyssey.




November 16, 2000


Observers say ballots manipulated by examiner
By Steve Miller
THE WASHINGTON TIMES


Visit our Election 2000 page
for daily election news and analysis

WEST PALM BEACH, Fla. — Five observers to Saturday's hand count in Palm Beach County have filed affidavits in federal court charging that a Democratic county commissioner manipulated ballots so Al Gore would receive more votes than George W. Bush. Top Stories
• Florida certifies the Bush lead
• Courts play 'hot potato' as lawsuits proliferate
• Count of absentee ballots adds to confusion in Florida
• Clinton assures Asia on election impasse
• Fed says economy is slowing as expected


Carol Roberts, a de facto appointee to the three-member elections canvassing board, is accused in the filings of asking a Democratic observer to the count whether ballots should count and that she "twisted the ballots and poked her finger directly in sections of, and aggressively handled, the ballots."
On one occasion, observer John Grotta said in a sworn statement, Miss Roberts looked at a ballot and said " 'Unfortunately, the corners aren't detached,' as she was referring to a ballot that would have been a vote for Vice President Gore."
The most pointed charges in the affidavits were cited in a request by the Palm Beach Republican Party that Miss Roberts, a longtime Democrat, step down from the board because of her partisan behavior in last week's sample count of 4,600 ballots.
When the count found that Mr. Gore netted 19 more votes, Miss Roberts was adamant about a full recount, asserting that Mr. Gore could claim as many as 1,900 more votes based on the sampling.
Miss Roberts refused to remove herself from the panel, saying in a public statement — read by canvassing board chairman Charles Burton to a press gallery that is now an encampment outside the Emergency Operation Center here — that the count was done "in full view of public observers from both parties and cameras from all over the world.
"All board members examined and voted on all questioned ballots and nearly all votes were unanimous. . . . I will continue to be fair and impartial and will not recuse myself."
Yesterday, Miss Roberts publicly challenged the election powers of Secretary of State Katherine Harris, a Republican, in the recount dispute, saying Attorney General Robert Butterworth, a Democrat, had the proper authority. Mrs. Harris has been the target of Democrats, who claim she is partisan and must recuse herself.
The partisan rancor has completely divided the sides in the manual recount debate. Palm County's hand count was delayed yesterday pending the state Supreme Court's opinion on the legal standing of the process.
The charge against Miss Roberts "is not a witch hunt," said Mark Hoch, administrator for the county's Republican Party.
"We have complaints coming out of the woodwork, and most of the things we look at are unsubstantiated," Mr. Hoch said. "Carol Roberts, though, can be seen as truly partisan."
Miss Roberts arrived at the emergency center around 6:15 a.m. yesterday with a sheriff's deputy bodyguard and a personal assistant. As a vocal advocate of the manual count in both Palm Beach County and three other surrounding — and Democrat-dominated —counties, Miss Roberts has thrived on the controversy surrounding the recount.
At one point this week, Miss Roberts said she would go to jail to have the manual recount accomplished. In Palm Beach County, recounts by hand and machine have added 787 votes for Mr. Gore to an extra 119 for Mr. Bush — a net Gore pick up of 668.
The affidavits filed yesterday also include charges that elections workers were reluctant to reassess votes despite the protests of observers.
In one case, a worker refused to recount a stack of ballots that contained Bush votes, according to observer Mark Klimer.
Mr. Klimer's statement included the accusation that Miss Roberts picked up ballots from a stack that was to be evaluated later by the entire board and interspersed them with a stack of Gore votes.
He also said the ballot evaluation was inconsistent. Some ballots judged as Gore votes did not meet the agreed standards for a valid vote, the West Palm Beach banker said.
Mr. Klimer said yesterday he was in the counting room for 4 and 1/2 hours on Saturday. A Republican, Mr. Klimer said his interest was not partisan: "I was there to make sure it was fair."
"Beyond a shadow of a doubt, what I saw is the absolute truth," Mr. Klimer said.
Miss Roberts is one of three Democrats on the seven-member County Commission. She was elected in 1986 after serving 11 years on the West Palm Beach City Council.
When she became president of the Florida Association of Counties in 1996, Miss Roberts took some heat for marking the occasion with three days of festivities paid for with $55,000 from her business friends.




Soviet-Style Election?
Neal Boortz
Wednesday, Nov. 15, 2000
"Those who cast the votes decide nothing. Those who count the votes decide everything."
Communist dictator Joseph Stalin said that.

Tom Carroll is an economics professor at the University of Nevada-Las Vegas. Since last Thursday, Carroll has been running statistical analyses on the net vote gains Al Gore and George W. Bush have made in the Florida recounts. Gore, as you know, has picked up about 2,200 votes and Bush has added about 700 votes to his total.

Carroll found that the statistical chances for such large and different totals (more votes for Gore than for Bush during the recounts) are about one in 49 million. Basically, the odds of Gore picking up more than 1,500 votes are about the same as the likelihood of a single person getting hit by lightning 30 times.

What it all boils down to is that something very fishy has been going on in Florida over the past week – as if you didn't already know that. Think about it. Shouldn't a recount increase the numbers of votes for all candidates uniformly, rather than be overwhelmingly lopsided, as the recounts have turned up more votes in favor of Al Gore?

But Gore supporters would tell you that they just want a "fair and accurate count that expresses the will of the people." And if the will of the people is for Gore to beat 1-in-49-million odds and magically pick up votes in Florida, well, so be it.

It doesn't add up.

It looks like this election will truly be decided by lawyers and judges. The Gore camp has issued an urgent call to the National Association of Trial Lawyers for 500 volunteer lawyers to help in the hand recount efforts. The Clinton administration has worked diligently to protect these trial lawyers from any tort reform legislation that might cut into their huge fees – it’s time to return the favor.

Who has the absentee ballot advantage?

Don’t pin your Bush hopes on these absentee ballots. Carl Limbacher of NewsMax.com has been doing some snooping, and it looks better for Gore than you would expect.

As Lance DeHaven-Smith, director of the Florida Institute of Government, says, "This presidency will be decided by the Florida Crackers and the Israeli Jews."

David Froelich is the U.S. voting coordinator in Israel. He says that there are about 4,000 Floridians who live in Israel, and about 2,500 will vote by absentee ballot. Many of those ballots are not counted yet. On the other hand, many of the military absentee ballots have been counted. At the Pensacola Naval Air Station, 504 of 687 are in and on the books.

Many Americans think this absentee ballot thing is going to save the nation from four more years of Clintonism. They could be dead wrong.

However, 3,000 absentee ballots are being flown in by the Navy from military personnel on three U.S. Navy ships that haven’t been sent back to the States yet.

The three ships are the USS Tarawa, USS Deleuth and USS Ahchorage. All have been involved in the rescue efforts for the USS Cole, the Navy destroyer bombed in a terrorist attack in Yemen.

The New York Post is now reporting that there are ballots from some 3,000 sailors and Marines on those ships. Some sailors are openly expressing their suspicions that their commander in chief, none other than that paragon of virtue and lawfulness, Bill Clinton, may have acted purposely to delay these ballots – both to and from these servicemen.

A congressional investigation is being called for. Meanwhile, the Navy is said to be working hard to get those ballots destined to Florida in the hands of Florida elections officials by the Friday deadline.Could it be too late?

This entire presidential election situation moves so fast, it’s really hard to say where we stand "now." Ten minutes from "now" it will all change.

The certified count sent to the Florida secretary of state yesterday shows Bush with a 300-vote lead. That just one car full of voters for each of Florida’s 67 voting precincts. Whatever else happens in this election, individual Americans are learning that their votes count.

The big news, of course, is the ruling handed down by Florida state judge Terry Lewis. In essence, he dumped the entire mess into the lap of Katherine Harris, the Florida secretary of state.

I think the ruling was a good one. Florida counties had to send their certified results to Harris by 5 p.m. yesterday. But they were free to amend and correct those returns if, in the discretion of Katherine Harris, there is cause to do so.

See – it has all been dumped on Harris! She’s a partisan Republican. She contributes to Republicans. She campaigned for George W. Bush! Now it could be said that this election is in her hands. Do her politics enter into the situation?

Harris has ordered all Florida counties engaged in hand recounts to give her a complete and full written explanation as to why they should be allowed to correct and amend their returns with the recount results. Their deadline for this explanation is 2 p.m. today.

Smart move. Get an explanation before the results are tendered. This makes it somewhat more difficult for these counties – and we’re talking specifically about Palm Beach County here – to go on a fishing expedition in which they’re not only looking for the Gore votes, but also looking for a good excuse for the recount.

Of course, the Democrats see this as the time to destroy Harris, and their chief hatchet man will be Warren Christopher.

Christopher has already used the Big Lie technique on Katherine Harris a few times. On Monday he accused Harris of arbitrarily "setting" the 5 p.m. Tuesday deadline for Florida counties to get their vote totals in.

She didn’t "set" the deadline. It’s a matter of law, and Christopher knows it. It’s all an attempt to convince the masses that Harris has more discretion than the law gives her, thus tarnishing any decision she might make adverse to Al Gore.

Katherine Harris is now the next designated target of the Clintonista / Goron personal destruction machine. What they’re going to do to her will make the war on Ken Starr look puny. Before the Democrats get through with Katherine Harris she’ll be sporting swastika tattoos and waving Confederate flags. Packets of "information" on Harris have already been delivered to news organizations by Demcoratic operatives.

As this woman ducks for cover from the Democratic onslaught, Gore will deny any responsibility and issue that standard hypocritical Clintonista call for an end to "the politics of personal destruction."

Neal Boortz is the hugely popular nationally syndicated radio host.




Senate Balance Hangs on Wash. Absentees
NewsMax.com Wires
Thursday, Nov. 16, 2000
WASHINGTON (UPI) – The U.S. Senate balance between Republicans and Democrats hinged Wednesday on an estimated 182,000 uncounted absentee ballots in Washington state, where Republican incumbent Slade Gorton and Democrat challenger Rep. Maria Cantwell remain in a close race.
Of particular importance are 75,000 ballots from heavily Democrat King County.

David Brine, spokesman for Washington's secretary of state, said the counties were reporting 182,474 uncounted votes, except for Pierce County, which was refusing to supply outstanding vote information.

With a lead of just more than 5,100 votes, Gorton hopes that the remaining King County ballots do not mimic the outcome of the nearly 800,000 already counted. These have gone to Cantwell by 60 percent to 40 percent. If that pattern holds, it would represent a gain of about 15,000 votes for Cantwell, more than triple the incumbent's current advantage.

King County is expected to update its vote totals on Friday evening.

The outcome of this race will determine whether the GOP retains a one-vote advantage in the U.S. Senate, or if the upper house will be tied 50 to 50 in the 107th Congress.


Copyright 2000 by United Press International. All rights reserved


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