Archive for Wednesday, December 20, 2000

What the court action meant

December 20, 2000

Editor's note: Attorney Kent Weatherby, Tonganoxie, wrote this opinion piece about last Tuesday's decision by the U.S. Supreme Court.

What was it that the U.S. Supreme Court actually decided in the case of Bush v. Gore, Supreme Court Docket No. 00-949? Unfortunately most Americans are being bombarded by either members of the media with agendas of their own both for and against a given candidate or by the "spin masters" (read liars) of the two contesting sides in this complicated case of legal maneuvering.

As a semi-retired lawyer I was interested enough to go directly to the U.S. Supreme Courts web site and print the full text of the decision all 65 pages. Unfortunately there is little of the actual ruling of the court that is making its way into the living rooms of the American people. We are told there is a badly divided court that has made its decision along party and political affiliations. We are told that the justices were split 5-4 in favor of Governor Bush. That is not true. One can only wonder what the motivation is for misrepresenting the truth and attempting to further divide an already badly divided nation. Focus has been shifted from the Per Curiam decision in which seven justices joined to the disagreements expressed in the concurring and dissenting opinions that do not constitute the actual ruling of the Court.

In point of fact, the decision of the court is supported by both conservative and liberal (if such terms have meaning within the context of the Supreme Court) members of the court. This court has three so-called conservative members, Chief Justice Rehnquist, Justice Scalia and Justice Thomas. It has four so-called liberal members Justices Stevens, Souter, Ginsburg and Breyer. Souter and Stevens were appointed by Republican presidents and were roundly criticized for being too conservative to serve on the court during their confirmation hearings before the Democratic controlled Senate Judiciary Committee. Justices O'Connor and Kennedy can be counted on to vote in strict accordance with the issues presented and no one characterizes them as either conservative or liberal. Only Stevens (the Republican appointee) and Ginsburg (a Clinton appointment) on the so-called liberal side dissented from the Per Curiam decision on the Equal Protection issue that proved to be dispositive of the case.

The issue presented to the Supreme Court was: "whether the Florida Supreme Court established new standards for resolving the presidential election contest, thereby violating Art. II, 1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses." They decided this issue by stating, "With respect to the equal protection question, we find a violation of the Equal Protection Clause."

At page six of the 13-page Per Curiam opinion the Court notes that, "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another." In considering that statement of the law the seven justices in the majority stated, "The recount mechanisms, implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right." "The want of those rules here has led to unequal evaluation of ballots in various respects."

The court then cited as an example of the grievous mishandling of ballots the fact that during a limited time frame when recounting occurred in Miami-Dade County no less than five separate standards were used.

In concluding its comments on the Equal Protection issue the court noted, "The question before the court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

"The State has not shown that its procedures include the necessary safeguards."

Turning then to the question of timing, the five justices commented: "The Supreme Court of Florida has said that the legislature intended the State's electors to 'participate fully in the federal electoral process,' as provided in 3 U.S.C. 5. That statute in turn requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by Dec. 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional for the reasons we have discussed we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."

It is time the people of this nation were told the truth about our legal and judicial system. It is time the media begin to use their awesome and largely unregulated power to bring people together notwithstanding that controversy sells newspapers and advertising time on radio and TV.

We have been treated to a wonderful example of how our democracy and republic form of government works. Unfortunately in an election someone wins and someone loses. It is time to stop the finger pointing and the slinging of accusations that are based on misinformation we have been fed by the "spin masters" and the media. It is time for truth and our system of law not man to prevail.

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