Legal Ethics and Reform


Missouri v. Jenkins and Bush v. Gore -

Violate Traditional American Values

    The Revolutionary War was fought for certain rights and freedoms. The lists is etched in every school child's memory: "no taxation without representation", "the right to vote", "establish a free, democratic government" and "throw off the monarchy". These are so basic no American would question these, or as Sherlock Holmes would say "its elementary my dear Watson". And yet in the last ten years, the US Supreme Court has at least twice made a mockery of these basic tenets.

    In Missouri v. Jenkins the US Supreme Court decided to support a local federal judge who had ordered Kansas City's schools rebuilt with money from a property tax increase which this judge also imposed. This tax was levied against the will of the people and against Missouri Laws which says that no property tax increase can be imposed without the approval of the voters. So un-elected people, this time Federal judges, were once again imposing taxes on Americans.  The Courts defend themselves by pointing out that they just wanted pleasant schools for students to attend to lessen the impact of racial bussing which was being implemented in Kansas City. The judges felt that their desire for "new schools"  justified judicial violations of the the most basic American principle "no taxation without representation".

    In Bush v. Gore the US Supreme Court decided that manual review of some 70,000 ballots which machines had been unable to count would not be accommodated. The court did not want to say outright "we won't allow the manual counting of these ballots" instead the court required the use of an "objective standard" in judging these ballots which, of course, is impossible to devise. Why is it impossible to devise? The objective standard for judging these ballots was the standard programmed into the computers (counting machines) which had counted these ballots originally. These "machine based" standards had successfully processed 99% of the ballots, that left the 1% which remained uncounted. The variety of notations, marking, holes, and/or indentations were beyond the machines' "objective standardizing". These had to be studied by human beings to see if the voter's intent could be determined. The Florida law, like the law in most states, calls for one human to look at the ballot created by another human and make a determination as to intent ...  intent to vote for Bush, intent to vote for Gore, intent to vote for a third party candidate, or intent not to vote at all. Since the Revolutionary War, voting, despite the recent introduction of machines, has basically involved a voter preparing a ballot and another person, a voting official, looking at that ballot and deciding the voter's intent. The process is a wonder to behold. In the hours before the US Supreme Court stopped the counting, C-SPAN had been running a live television feed from the room where officials were counting Dade County ballots. The process was orderly, most ballots were being classified a "no vote for President", Bush was getting about two votes for every one being added to Gore's total, and very few ballots were being set aside for Judge Lewis, the local Circuit Court Judge, to review. The process was working just as it has worked  for two centuries, it was wonderful to watch, it was sad to see it stopped. Just as Americans trust jurors to decide the facts in a criminal trial, Americans have trusted officials, not machines, to ultimately determine the intent of voters.

    Although the need for an "objective standard" was the announced end in Bush v. Gore, the US Supreme Court had to have some other end in view ... either they wanted an end to the process, or they simply wanted Bush in the White House as quickly as possible, or they wanted to punish VP Gore for the President Clinton's earlier perjury, or whatever. We will never know exactly, but the US Supreme Court was willing to crush the idea that people have a "right to vote" and have their votes counted. Again an important principle from the Revolutionary War was sacrificed. In fairness to the five justices who prepared this unsigned opinion, they realized their opinion was not well founded. In the opening sentences of this opinion the Court stated this opinion was not binding on future election contests across the country. If they truly thought "objective standards" could be established for manual recounts, they would have made the "objective standards" test binding for all future election contests, at least for elections affecting Federal offices. Instead they made their decision binding on only this election and only on Florida.

    As an aside, it is interesting to note that George II is the son of a former President, George I. If he had did not have his father's name, or his father's mailing list, or the goodwill of all people his father had helped, or the support of his father's key advisors, it is safe to say George II could never have defeated a Senator McCain, a Vietnam war hero, in the primaries. Americans fought a Revolutionary War to throw off a monarchy. Nevertheless there was a concern that America might stop electing its Head of State, the President, and instead fall back into an "American monarchy". For this reason the founding fathers were thankful that none of the more famous founders, save John Adams, had  male children. It is safe to say, the founders would be concerned about this situation where the son of a former president parleys his father's name and connections into a major governor ship and then the White House, all in less than a decade after his father departed from the Oval Office.

    In closing, it seems appropriate that as America takes a large step away from being a democratic republic, it does so without a majority vote of the American people but rather with a 5 to 4 majority vote of the un-elected U S Supreme Court.

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