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Jewish World Review Dec. 15, 2000 / 18 Kislev, 5761

Thomas Sowell

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Election facts versus myths

http://www.jewishworldreview.com -- ELECTIONS are supposed to be decided by voters on election day, not by judges later on. But once state and local courts inject themselves into post-election controversies, without any legal justification, the only institution that can get rid of their interference is the Supreme Court of the United States. Yet the U.S. Supreme Court is now being attacked for taking this election out of the hands of judges.

The very same liberals who were telling us just days ago how terrible it is to criticize courts, despite the grotesque double standards being used in the Florida recount, are now leading the charge against the U.S. Supreme Court for putting a stop to it.

Although the official vote was 5 to 4, the vote was 7 to 2 that what was done in Florida was a violation of the Constitution of the United States, because it did not provide "equal protection of the laws" as required by the 14th Amendment. Two justices apparently thought that this could be corrected, even at the eleventh hour, and let the recount resume, but five other justices thought it was too late for that.

Underlying the post-election chaos in Florida is the notion that Al Gore "really" won the popular vote in Florida but that all the votes for him just were not counted. No doubt this claim will be repeated in the months and years ahead by demagogues and by those gullible enough to believe them. But Gore himself obviously didn't believe it. When the Florida Supreme Court asked Gore's lawyers if they wanted a statewide recount, they declined.

What they wanted was a recount confined to heavily democratic counties, under looser rules than in the Republican counties or in the rest of the state. This was such a gross violation of any sense of fairness that you don't need to be a constitutional lawyer to know that this was not "equal protection of the laws."

They say you cannot step into the same river twice, because the water is moving all the time. Similarly, you cannot accurately recount the same machine ballots twice because each counting causes chads to be dislodged or other damage to the ballots, even when it is done with the strictest honesty and impartiality. In short, they are not the same ballots any more, and perfection in reading them is out of the question, whether votes are counted by machine or by hand, and whether they are counted once or again and again.

Yet shrill voices were raised early on, demanding that more recounts be done to eliminate any possible questions about accuracy. The fact that something is desirable seems to carry more weight with liberals than the fact that it is impossible.

Other shrill voices, led by Jesse Jackson, have been raised, claiming that blacks were "disenfranchised." Yet, in all these weeks, nobody took that claim to the courts, where they belonged, since racial disenfranchisement would be a violation of the Voting Rights Act and the Constitution of the United States. Instead, these inflammatory charges were taken to the media and Jesse Jackson is now threatening to take them to the streets.

Another reckless claim is that Florida Republicans were allowed to "tamper" with ballots or with ballot applications. Both the Democratic Party and the Republican Party handled absentee ballot applications for some of their respective members. The only difference was that the Republican Party failed to include identification numbers on these applications before submitting them to local election authorities. Realizing their omission, they then went down to the election offices and added these numbers.

This simple fact has been inflated into hysterical charges that election officials gave the Republicans a privilege denied to Democrats. But Democrats had no need to add numbers, since their numbers were already on the applications when they were submitted. Moreover, it is not "tampering" with an application to put something there that is supposed to be there. And this was just an application, not the ballot itself, which went out to the individual voters. Yet this trivial act was the basis of legal efforts by Gore allies to throw out the votes of 25,000 people, despite the Gore mantra that "every vote should be counted."

Former New York governor Mario Cuomo has even countenanced the idea that members of the electoral college who were elected to vote for Bush should betray the voters and vote for Gore.

The only consistency in all this is that the Gore camp has been out to win at all costs, despite losing recount after recount, and without regard to the harm done to the integrity of the process or the reputation of individuals or institutions.

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

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