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Jewish World Review Dec. 26 2000 / 29 Kislev, 5761

Nat Hentoff

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Media should stop misleading public about High Court's actions


http://www.jewishworldreview.com -- IN THE TURBULENT WAKE of the Supreme Court's decision in Bush v. Gore, it is not the Court's credibility that, in the long run, will be diminished. Instead, the intellectual integrity of its attackers -- from law professors to Jesse Jackson -- will be at risk.

To begin with, much of the media has downplayed or ignored the fact that the Supreme Court vote was 7-2 on the crucial constitutional issue. That majority found that the case involved the federal guarantee of equal protection of the laws.

The core of that division in the Court can be found in an exchange between Justices Antonin Scalia and John Paul Stevens when, on Dec. 9, the United States Supreme Court vacated the Florida Supreme Court's decision to recount disputed ballots in selective counties.

Justice Stevens insisted that "every legal vote should be counted." In response, Justice Scalia made the logical point that since Election Day, Nov. 7, the controversy had been over which votes were indeed legal in Florida. Said Scalia: "Count first and rule about legality afterwards is not a recipe for producing election results that have the public acceptance that democracy requires."

Justice Scalia could also have reminded his colleague of what the Queen of Hearts roared at the start of the trial in "Alice in Wonderland": "Sentence first -- verdict afterwards!"

During the repeated hand recounts that had already taken place, television viewers could plainly see there were different standards for deciding which votes were legal from county to county -- and in some counting rooms, from table to table.

Clearly, those recounts were not treating voters equally under the United States Constitution's guarantee of "equal protection under the laws."

The court's 5-4 decision, on which most of the media focused, concerned the remedy by which this violation of equal protection could be fixed. Justices David Souter and Steven Breyer, who were among the seven justices agreeing on the "equal protection of the laws" violation, wanted to send the case back to the Florida Supreme Court so that there could be a recount under new and uniform statewide standards.

However, even if the deadline had been extended to Dec. 18, there would not have been time to promulgate those standards, implement them, and provide appellate review by all the courts of the inevitable challenges to the results of that recount.

I would add that since these would be more hand recounts, the already handled, rehandled, diluted ballots would be further degraded -- despite whatever new standards were in place. Indeed, if some critics of the Supreme Court's decision go ahead with their plan to have a postelection recount of all votes cast in Florida, that result will be even more debased, and therefore not credible either.

This is not the first time the Supreme Court has ruled against a state's election laws. In the landmark one-man, one-vote decision Reynolds v. Sims (1983), the Court emphasized the 14th Amendment's guarantee of "equal protection of the laws" as crucial to the right to vote.

In Bush v. Gore, the Supreme Court -- with regard to what was happening in Florida -- quoted from Reynolds v. Sims, saying that it must be remembered that under the equal protection clause, the right to vote "can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise" of the right to vote.

Moreover, those charging that the United States Supreme Court should not have interfered in the state court's decisions were answered in a 1983 decision by Justice John Paul Stevens, who is now a bitter dissenter in Bush v. Gore. Back then, in Anderson v. Celebrezze, Stevens emphasized that since "the president and vice president are the only elected officials who represent all the voters in the nation, the state has a less important interest in regulating presidential elections than state or local elections because the outcomes of the former are largely determined by voters beyond the state's boundaries."

In all the states, Americans who voted in the presidential election were involved in ensuring that the results of the Florida balloting met equal protection standards.



JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

Up

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