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Jewish World Review Nov. 23, 2000 / 25 Mar-Cheshvan, 5761

Thomas Sowell

Thomas Sowell
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PLOYS R US -- THE FLORIDA SUPREME COURT has disgraced itself and undermined election laws, not just for this election in Florida but for future elections across the country. Any future losing candidate in a close election now knows that he need only create enough noise and confusion, and then shop around for sympathetic judges.

On the eve of this election, no one in his right mind would have thought that it would be decided by hand-counting ballots in three counties in Florida and machine-counting the other 64 counties. It is not just a question whether dents on a ballot should count as votes, but whether dents should count as votes in heavily Democratic counties, while only perforations count as votes in the rest of the state.

Amid all the pious talk about wanting every vote to count, the Florida Supreme Court has not lifted a finger to enable the military ballots from overseas to be counted. Nor does the pious statement by Florida's Democratic attorney general that he would like to see the military ballots counted have the slightest effect, because he has no authority in this matter, and local Democrats who are counting the votes are disregarding his words. The attorney general knew that his words would not change the vote-counting, but it was a clever political ploy to sound sympathetic to the people serving in the military overseas -- while continuing to disenfranchise them on a technicality.

This whole post-election free-for-all could be called "Ploys R Us." These ploys have even included trying to corrupt the electoral college itself by digging up dirt on Republican members of that college and then contacting them to try to "persuade" them to vote for Gore, even though they were elected to vote for Bush.

The legal issue before the Florida Supreme Court was not how ballots were counted. The legal issue was whether Florida Secretary of State Katherine Harris abused her discretion by not extending the statutory deadline to allow time for hand counting. This was not Ms. Harris' deadline. It was the deadline established by law. Although she had the discretion to extend it -- as, for example, when there are hurricanes, floods or power outages -- discretion doesn't mean anything if anyone who asks for an extension has to get it.

Disasters beyond the control of local election officials are one thing. But, if large counties with hundreds of thousands of votes choose a method of counting them that they cannot or will not complete within the deadline, does that give them an automatic extension to take however long they want? Or however long judges want to give them? Why then does the law give discretion to the Secretary of State? The point here is not just that the judges made the wrong decision. It was not their decision to make.

The Constitution gives different powers to different branches of government for a reason. "Separation of powers" is not just some arcane phrase used by constitutional lawyers. It is what keeps us free. Power is too dangerous to all be in one set of hands, whether judicial, executive or legislative. But the Florida Supreme Court has a history of usurping powers belonging to other branches of government. Now they have given us a civics lesson in corruption -- how the use of arbitrary power from the judicial bench can even determine who becomes President of the United States. But we have gotten used to judicial despotism and some even confuse the fiats of judges with the rule of law -- which is the real danger for the future of this country.

The media have covered all this as a horse race between Bush and Gore, with very little attention being paid to what it means for the country and for the future. Some seem to think that it makes them "objective" if they condemn "both sides."

Just what is it that the Bush side has done? They played by the rules. When the Florida votes were counted in the way prescribed by Florida law, Bush won. When the votes were automatically recounted because of the narrow margin of victory, Bush won again. Only after Gore's operatives came up with another way to count votes -- or dents on ballots that could be called "votes" -- did Bush go into court. Meanwhile, the state governor recused himself from exercising his own right to vote on the decisions being made because his brother is a candidate.

If those who play by the rules are to be equally condemned with those who make up their own rules after losing, are we not in an Alice in Wonderland situation? Or is it just the land of "Ploys R Us"?

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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© 2000, Creators Syndicate