When five Republican justices of the US Supreme Court brandished the 14th Amendment to the Constitution to stop the counting of votes in Florida and awarded the presidency on a short count to George W. Bush, it was the latest example of the misuse of that Amendment to empower corporations and disenfranchise citizens.
In the name of "equal protection" and "due process," those five federal Supremes overruled the Florida Supreme Court, which had ordered the hand-count of the 43,000 ballots that had been rejected by punch card readers, which are notoriously inaccurate and tend to be located in voting districts with disproportionately poor, black and Hispanic electorates. The use of more accurate optical scanner systems in more affluent and predominantly white districts, which resulted in more of Bush's votes being counted, was upheld by the federal court majority as an application of "local expertise."
Conservative commentators, hoping to confer legitimacy on the new Republican president-select, leaped upon the fact that seven of the justices agreed that there were problems with the recount. But four dissenting Supremes, as well as a 4-3 majority of the Florida high court, felt that the state should try to count as many votes as they could reasonably tally in the week remaining before the Electoral College was to meet.
Right-wingers, led by Bush's lawyer, Jim Baker, accused the state Supreme Court -- all Democrats -- of having political motives in ordering the votes to be counted. But honest Republicans recognized the US Supreme Court's ruling in Bush v. Gore was a brazenly political and partisan document designed simply to ensure that George W. Bush was inaugurated as president.
Justice John Paul Stevens, a Republican who apparently still believes in democracy, wrote in his dissent that the majority decision of his fellow justices endorsed an assault on the judicial system in Florida that "can only lend credence to the most cynical appraisal of the work of judges throughout the land." Stevens concluded, "Although we may never know with complete certainty the identity of this year's presidential election winner, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
Ironically, the 14th Amendment to the Constitution was ratified after the Civil War to protect the citizenship rights of freed slaves. Since then the 14th Amendment has been used by the courts mainly to confer extraordinary rights on corporations and their wealthy stockholders. At the same time, racists in charge of Southern state governments for the better part of a century afterward were permitted to order the segregation of the races and to erect barriers to voting by blacks.
Starting with civil rights cases in l883 and ending with the infamous case of Plessy v. Ferguson in l896, which upheld segregation laws under the legal fiction "separate but equal," the Supreme Court rendered useless the Amendment's safeguards for personal liberty through its due process, equal protection, and privileges and immunities clauses. In Plessy v. Ferguson, the Court, with only one dissenter, upheld "Jim Crow" laws which were enacted throughout the South to make it a crime for blacks to associate with whites. (One of the reasons the segregation laws swept through the South in the 1890s was to stop the agrarian Populist coalition of white and black farmers which threatened control of southern legislatures in the 1880s and 1890s. See www.populist.com/essays.html for more information.)
At the same time, the Supreme Court was carving out new rights for corporations which were bursting free of state control and public accountability. In 1886 the Court, in the case of Santa Clara v. Southern Pacific Railroad, ruled that a corporation was a "person" under the 14th Amendment and thus was entitled to full protection of its rights. In the first half of the 20th century the courts added to the prerogatives of corporations and set aside attempts to regulate them. (Labor unions got no such pass from the courts.)
Federal courts in the 1950s and '60s finally were persuaded to re-read the 14th Amendment in favor of equal protection of human citizens. That finally got minorities the right to vote and share public accommodations and schools with the white majority. In the past 20 years, however, the Court has returned to the Gilded Age interpretation of the 14th Amendment -- that it exists mainly to protect the wealthy.
The leader of that retreat on civil rights in favor of corporate rights is Chief Justice William Rehnquist. As a law clerk at the time of Brown v. Board of Education in the 1950s, Rehnquist argued in a memo that Plessy v. Ferguson "was right and should be re-affirmed," as noted by Nathan Newman, a vice president of the National Lawyers Guild. In the 1960s Rehnquist helped lead GOP efforts in Arizona to harass and disenfranchise black voters using literacy tests and other tools of voter intimidation, as noted by Dennis Roddy of the Pittsburgh Post-Gazette.
In this past election civil rights groups documented efforts to keep down the black vote, from police traffic checks near predominantly black polling places to demands for multiple IDs and the improper purging from voter rolls of more than 7,000 innocent people -- 54% of them black -- who were incorrectly labeled as felons by a private contractor run by GOP corporate funders. The Supremes didn't have problems with any of those irregularities, but it drew the line at the Florida Supreme Court's efforts to hand-count disputed punch-card ballots.
The Court also was untroubled by clear conflicts of interest: The son of Antonin Scalia works for the law firm that represented Bush -- and Scalia reportedly aspires to be named Chief Justice when Rehnquist retires; the wife of Clarence Thomas works for a right-wing foundation that was recruiting staff for the Bush administration; Rehnquist and Justice Sandra Day O'Connor reportedly have told friends they were waiting for a Republican president so they can retire and be replaced by conservatives.
The Supreme Court came in for some "bad press" immediately after it intervened with a 5-4 vote Dec. 9 to stop the counting of the "undervoted" ballots. Many commentators noted that the five justices had flip-flopped their usual position in favor of states' rights against federal intrusions. Scalia didn't even bother to cover up the partisan motivation when he wrote, in explaining the injunction, that one critical reason for blocking the recount was the fear that if Gore took the lead as the new votes were counted, the legitimacy of Bush's presidency would be endangered even if the Supreme Court subsequently invalidated those results.
Sen. Patrick Leahy, the ranking Democratic member of the Judiciary committee, said of the justices: "Their credibility is so diminished, and their moral posture is so diminished, it will take years to repair."
"This looks like a group of five, hard-line, right-wing Republicans who are willing to do anything to put their guy in office,' said professor Sanford Levinson, a constitutional scholar at the University of Texas Law School, to the Washington Post.
A USA Today/CNN/Gallup Poll Dec. 10, a day after the Supreme Court stopped the count, found that nearly three-quarters of those surveyed said they would accept a high court ruling that determined who will be the next president. But 51% said they believe the nine justices were influenced by their own political views and 61% said they were bothered either greatly or a fair amount that court decisions could determine the winner.
The Court heard formal arguments, but its late-night decision interring Gore's hopes on Dec. 12 was anticlimactic, and appeared written mainly to justify the Dec. 9 injunction. After the Court stopped the election, politicians and pundits called for reconciliation and Gore showed he was a gracious loser. But after this latest twisting of the 14th Amendment to deny their vote, black leaders were in no mood to accept what happened in Florida. "I don't understand why whites don't feel this anger," Adora Obi Nweze, president of Florida's NAACP, told Eric Boehlert of Salon.com. "I want so much for everybody to feel at least some of what we feel." Civil rights groups and other progressive activists are planning demonstrations around the country, starting with the commemoration of Martin Luther King Jr.'s birthday, Jan. 15, and concluding with protests at the inauguration in Washington, Jan. 20. Events across the country, include a pre-inauguration protest in West Palm Beach, Fla., on Jan. 19 and protests in Athens, Ga., Tallahassee, Fla., Austin, Texas and Los Angeles as well as several events in Washington, D.C. (For more information see the Counter Inauguration Calendar maintained by The Nation magazine at www.TheNation.com.)
Democratic leaders promised to reach across the aisle to work with Bush, although they stopped short of conferring legitimacy on his selection. Asked by NBC's Tim Russert if Bush was the legitimate 43rd president of the United States, House Democratic Leader Dick Gephardt would say only that "George W. Bush is the next president of the United States." When Russert asked again: "But is he legitimate?" Gephardt replied, 'We have to respect the presidency, we have to respect the law, and we have to work with him to try to solve the people's problems."
After the Supreme Court decision, USA Today on Dec. 14 reported that a poll showed that by a 52-42% margin, Americans said the Supreme Court ruling handing Bush the presidency was fair. But a Reuters/NBC News poll found 84% of African-Americans said their confidence in the voting process has been shaken. Just 2% of blacks polled "strongly agree" the right man became president, compared with 50% of white Americans. The same poll found 89% of blacks think the Supreme Court ruled in favor of politics instead of the good of the country, to 43% of all Americans polled.
"The Democrats were just plain outshouted," Roger Ebert wrote in the Chicago Sun-Times. "And Lady Luck rolled the dice and gave them the butterfly ballot, the Jews for Buchanan, the election boards that took days off, the hired mob to stop the Dade recount, the disenfranchised black voters, the illegally franchised military and absentee voters, the Bush cousin to call the election on TV, the Bush co-chairwoman to rush it through certification, and the Bush brother to mastermind operation fail-safe by the Florida legislature to certify Bush electors no matter who won. Even in Vegas they'd be amazed by luck this rotten; the Miami Herald's statisticians estimated that Gore probably outpolled Bush by about 23,000 votes. That's why it was so important for the Republicans to stop the count."
IT TURNED OUT that despite the US Supreme Court's obsession with the Dec. 12 deadline to certify electors -- one of the reasons the Court declared that the count could not proceed past that date -- only 29 states and the District of Columbia had bothered to certify their presidential electors by that date. With President-Select Bush in the role of chairman and Dick Cheney as chief executive, the transition team undertook to assemble a Cabinet on a corporate model that reflected the oil and military industries. Meanwhile, news media quietly undertook to count 180,000 disputed ballots which were cast statewide but not tallied in the presidential race, either because no vote could be detected by a machine or because voters marked more than one choice for president. The Orlando Sentinel on Dec. 19 reported that a count of 6,000 disputed ballots in Lake County, the first county reviewed (and a Bush stronghold) showed that Gore clearly should have been credited with a net gain of 130 more votes, shaving Bush's statewide lead to just two dozen votes.
Bush spokesman Tucker Eskew charged that the Sentinel was engaged in "mischief making" by treating "illegal votes" as legal votes. He argued that the newspaper would only be irresponsibly "inflaming public passions" by playing the numbers up as certain or clear. The Sentinel replied that voter intent on the rejected ballots was easily detectable. The newspaper noted that Lake ballots were marked with pencils and tabulated with optical-scanning devices, so there were no issues of "dangling chads" or "pregnant chads" to contend with, as there are in counties that use punch-card voting systems.
On Dec. 30, the Tampa Tribune found a net gain of 120 votes for Gore in Hillsborough County's punch-card "undervotes.'' Media-sponsored counts of disputed ballots in other counties resumed after the New Year's holiday.
What is known is that Bush lost the nation's popular vote to Gore by more than 539,000 votes, according to a final vote tally compiled by a nonpartisan research group from state reports. Slightly more than half of 1% of the overall vote count separated them. Gore got 50,996,064 votes or 48.39%; Bush drew 50,456,167 votes or 47.88%; Green Party candidate Ralph Nader had 2,864,810 or 2.72%; Reform Party nominee Pat Buchanan took 448,750 or 0.43%; and Libertarian Harry Browne got 386,024 or 0.37%. The remaining 34 vote-getters, including 13th-ranked "None of the Above,'' each drew less than one-tenth of 1%. Nationwide, voter turnout was 105,380,929 ballots cast, or 51.2% of those eligible, said Curtis B. Gans, vice president and director of the Committee for the Study of the American Electorate.
IT'S ALL OVER BUT the blaming, and at a Dec. 15 briefing, the pro-corporate Democratic Leadership Council claimed that the populist themes Gore raised during the last few months of his campaign lost him the election, as they scared off white working-class voters. "It's no secret that I think the populism approach hurt us with critical swing voters, particularly wired voters [who use the Internet] and men in the new economy. We were hurt because we were viewed in this election as being too liberal and too much in favor of big government," said the DLC's Al From. Apparently he missed the news that Gore actually got more votes than Bush, both nationwide and in Florida.
Gore's pollster, Stan Greenberg, acknowledged that Democrats lost ground with non-college white voters, particularly with non-college white women, but he told the Post's Thomas Edsall, "the populist theme was very attractive to the white, noncollege electorate. But populism is not just a material concept, it has a strong values component."
The populist theme of the "people" against "the powerful" worked effectively during the convention, winning the support of down-scale whites, Greenberg said, but those gains were eroded as Republicans focused on issues of trust and honesty, and Gore faced intense criticism for a series of misstatements and exaggerations.
"Gore began to lose that margin when trust and values issues were raised at end of September," Greenberg told the Post. Non-college-educated whites began to "hold back because of the culture war to bring down Clinton that has been waged since 1992."
Ruy Teixeira of the Economic Policy Institute, who advocates the importance of Democrats' appealing to white working-class voters, contended the problem was not that Gore used a populist message, but that he failed to fill it out beyond promising to protect such existing social insurance programs as Social Security and Medicare. Teixeira told the Post that Bush was able to stake out positions that quieted fears of GOP assaults on these programs, so Gore needed to present programs, especially in education, showing how he would help working-class voters and their children in ways the GOP would not.
Other than the theft of the presidency, the election arguably left the Democrats in pretty good shape. "We picked up Senate seats, we're competitive in the House, the Democratic base is strong, and our base came out [to vote]," Nick Baldick, who ran the party's ground operation in Florida, told the Post in another Dec. 15 article. Baldick said the Democrats "have opened up a new [competitive] frontier" in Florida, where Bill Nelson was elected to the Senate, "and in the nation's heartland," where Rep. Deborah Ann Stabenow (D-Mich.) won a Senate seat. (Not that Ralph Nader got any credit for helping to get out that vote.)
Now, Edsall noted, the party has a virtual lock on a host of major states, including California, Illinois, New York, New Jersey and most of New England, and is fully competitive in such vote-rich states as Michigan, Wisconsin, Pennsylvania and, in a crucial addition, Florida. At the same time, many of the once-Republican northern suburbs, such as the counties surrounding Detroit, Philadelphia and the New York boroughs -- a prime presidential battleground for the foreseeable future -- are either competitive or leaning toward the Democratic Party.
Core Democratic constituencies, especially African Americans and union-organized workers, not only remain loyal but also are demonstrating a willingness to turn out in high numbers, Democrats believe. And their anger at the presidential election result should make them easier to motivate in the next election, although the refusal of Senate Democrats to back up the Congressional Black Caucus' challenge of the Florida vote on Jan. 6 may contribute to further cynicism and make it harder to motivate minority voters in the next election.
Democratic support has been declining in rural areas, turning formerly Democratic-leaning states as Arkansas and Tennessee into Republican-friendly states, and the recently announced census figures added to the electoral vote in those Republican-leaning states in the South and West. Arizona, Texas, Florida and Georgia gained two House seats each while New York and Pennsylvania each lost two seats and in the Midwest Illinois, Indiana, Michigan, Ohio and Wisconsin each lost one seat. Other states losing one House seat included Connecticut, Mississippi and Oklahoma.
The Democrats' main problems are with two key constituencies: White men across the nation, and in the South in particular, have become decisively Republican in their voting habits. At the same time, voters with children, crucial to candidates seeking to win the suburbs, shifted from voting for Clinton over Bob Dole by a 7-point margin in 1996 to voting for George W. Bush over Gore by 7 points.
GOP pollster Bill McInturff noted to Edsall that the last time the Democratic Party won a majority of the white vote was 1964. (Lyndon Johnson signed the Voting Rights Act the following year and warned that as a result the Democrats would lose the South for a generation.)
But recovery in the suburbs gives the Democrats hope. In 1988, George Bush beat Michael Dukakis in two major suburbs of Philadelphia -- Delaware and Montgomery counties -- by roughly 60 to 40 percent, for a net 112,000-vote pickup. Last November, Gore won both counties by 54 to 44 percent, for a net vote advantage of 60,000 votes. Edsall noted that those shifts were crucial in moving Pennsylvania from the GOP to the Democratic column this year, as Gore carried the state by 201,000 votes.
The same pattern was evident in Michigan, where two Detroit suburban counties -- Oakland and Macomb -- gave the elder Bush a 171,000-vote net gain in 1988. This year, Gore won both counties, for a 15,000-vote edge. Michigan went from a Republican presidential state in 1988, when Bush won by 260,000 votes, to a Democratic state that Gore won by 194,000 votes.
Meanwhile, Democratic regulars were still blaming Ralph Nader for contributing to Gore's defeat. Even if Gore actually won the vote nationwide and probably won Florida, they say, Nader shouldn't have run and drawn enough votes away from Gore to enable the Republicans to steal the election in the Sunshine State.
"'Who's going to work with him now?' snorted Rep. John Conyers, D-Mich., who once worked with Nader on labor and regulatory issues," according to the Associated Press on Dec. 30. Nader replied that he could care less, and suggested that his fiercest critics are "frightened liberals" and those who hadn't given him the time of day in years anyway.
"They were all anesthetized by Clinton, the snake charmer," said Nader, who during the campaign described Gore and Bush as "Tweedledum and Tweedledee." Nader now concedes that Bush will cause more damage than Gore, but he said a Bush presidency will at least galvanize liberals. That's scant comfort for Democratic loyalists. Still, if Gore had carried either Arkansas or Tennessee, even the Supreme Court couldn't have stolen this election for Bush.
Sam Smith of The Progressive Review noted that while Nader got less than 3% of the vote, exit polls showed the following percentages of various other constituencies voted for Bush:
* 9% of blacks,
* 46% of those under 30,
* 49% of the college educated,
* 37% of the poor,
* 39% of working mothers,
* 11% of Democrats,
* 34% of union members,
* 13% of self-described liberals,
* 25% of gays and lesbians,
* 15% of Clinton voters in 1996,
* 25% of those supporting abortion.
"There is also a strong argument to be made that Bill Clinton himself set up the Bush win -- and not merely because of the scandals that hurt the Democrats far more than they or the media will admit," Smith added.
"The Clinton administration also moved the political center deliberately and consistently to the right, adding weight to conservative arguments over privatization, welfare, and so forth, while making traditional Democratic positions seem oddball and even extremist. This stab in the back of his own party by Clinton led eventually to a contest between a real conservative and a Democrat trying to learn how to become one. The real one won."
Greens had more success in local races, as they won 32 of 266 contested elections in 28 states, giving the party a total of 79 elected officials in 21 states. Those gains give the Greens the biggest political presence of any third party. Members of the Reform Party, which failed to reach 1% in the presidential race with the candidacy of Pat Buchanan, now hold about half as many elected positions as Greens in fewer than 10 states.
Greens in office all serve in municipal government, from mayor in five California towns, to the drain commissioner of Charlevoix County, Mich., the New York Times noted. Green candidate Matt Gonzalez, a former Democrat, became the first Green to win a seat on the San Francisco Board of Supervisors. In Sebastopol, a quiet town of 8,000 in western Sonoma County, about 50 miles north of San Francisco Bay where Nader gained 7% of the county's presidential vote, the party won two City Council seats contested this year, and Greens now hold three of the five elected positions of leadership.
IN OTHER ELECTION NOTES, reported by the Jan. 1 Ballot Access News (www.ballot-access.org, 415-922-9779):
(ogonek) Two rival Green Party organizations reportedly have reached an agreement on coexistence that will allow the Association of State Green Parties to become the national committee recognized by the Federal Election Commission as the Green Party while The Greens/Green Party USA would become a national activist organization within the national Green Party and would give up its use of the word "party." ASGP met Dec. 8-10 in Atlanta and proposed the plan which will be considered when TG/GPUSA meets sometime this spring.
(ogonek) National leaders of the Reform Party have settle the intra-party federal lawsuit based in Lynchburg, Va. A state court case in Long Beach, Calif., has been settled by all but one individual. The party's next convention is scheduled for this summer. Gerald Moan, the party's national chair, is said to be working to woo the New York Independence Party back into affiliation. Former national chair Pat Choate is said to be "actively interested in the party."
(ogonek) The Natural Law Party in the US will continue to exist, despite the request from Maharishi Mahesh Yogi, leader of the Transcendental Meditation Movement and a resident of the Netherlands, that the world's Natural Law Parties disband. The US party has gradually separated itself from the TM movement and many of its candidates are not TM practitioners. The US party is considering changing its name and sees itself as the heir to reformist voters who want a "centrist" party.
(ogonek) Ralph Nader broke the record as a write-in candidate for president in three states. In Idaho, his write-ins were 2.45% of the votes cast for president; in Wyoming 2.12% and in Indiana 0.84%. The only other state that counted Nader write-ins, Georgia, showed 0.51%. Pre-viously no write-in candidate for president had polled as much as 1% in any state; Eugene McCarthy's 0.74% in California in 1976 was the previous record.
Three states wouldn't allow Nader on the ballot and wouldn't count write-in votes for him: South Dakota and Oklahoma (both of which ban write-ins) and North Carolina, which permits write-ins, but refused to count them for Nader because he failed to file a declaration of write-in candidacy by the July deadline (at which time he didn't realize he wouldn't be on the ballot).
CAMPAIGN FINANCE REFORMERS are hoping the election debacle will give new momentum to their cause of taking corporate money out of campaigns. Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., announced they will try to put their campaign finance reform bill, which would control "soft money," the unregulated contributions to parties and political action committees, on the fast track after they attracted the support of Sen. Thad Cochran, R-Miss., who apparently would give them the 60 votes needed to overcome the filibuster maintained by Sen. Mitch McConnell, R-Ky., and Senate Republican Leader Trent Lott.
Public Campaign, which advocates public financing of elections, noted that after the debacle in Florida "expectations are rising among ordinary voters for real reforms that will ensure that the principle of one-person, one-vote is not violated."
Public Campaign stated that money mattered in this election, "big-time." According to the Center for Responsive Politics, in the Senate, 85% of the candidates who spent the most money won their races. In the House, the ratio was even higher: 94% (406 out of 431 decided as of the day after the election). The impact of money was clearest in open seats, where no one had the advantages of incumbency and 75% of the candidates who spent the most money were successful. By spending an estimated $60 million of his own money on his election, Democrat Jon Corzine broke the record. Final spending totals for House and Senate races are not yet in, but it's clear that the cost of winning a seat has risen substantially over 1998.
Public Campaign sees the case for reform as stronger than ever, as the contributions topped $3 billion and may approach $4 billion, or twice as much as was spent four years ago. "With most of this money (hard and soft) coming from special interests, the need for comprehensive reform has been highlighted as never before. And there's plenty of evidence that the issue is getting hotter. John McCain, and to a lesser degree Bill Bradley, proved that the issue strikes a chord with voters of all political stripes. Al Gore came out for full public financing of all general election campaigns for Congress. Ralph Nader brought a million new and formerly alienated voters to the polls with a message that included Clean Money Campaign Reform. A new wave of activism around the issue of democracy seems to be on the rise.
But the going won't be easy. Clean Money initiatives in Missouri and Oregon were defeated in November. Since 1996, voters have approved three Clean Money initiatives, and now they've turned down two as corporate lobbyists reacted to the threat with well-financed opposition campaigns.
Missouri's Chamber of Commerce and the Associated Industries of Missouri pledged more than $1 million to fight the clean-money initiative with a committee called "No Tax Dollars for Politicians." Missouri also was a presidential battleground and had closely fought gubernatorial and Senate races, highlighted by the death of Senate candidate Mel Carnahan in a plane crash weeks before the election. Faced with the task of both explaining the reform and refuting opposition attacks, where communication was very difficult, reform lost 65-35%.
Oregon also was a presidential battle-ground and had 25 other initiatives, many of them hotly contested, on the ballot, with well-funded opposition calling itself "No Taxpayer Handouts for Politicians" attacking the reform with radio ads and direct mail while the GOP candidate for secretary of state also came out against reform in her campaign commercials. Reform lost, 59-41%.
Clean Money has moved forward in Maine, Arizona and Vermont which ran their first elections operating under Clean Money systems. Dozens of "clean" candidates won their races; Democrats and Republicans alike, incumbents and challengers too. In Maine, 17 out of 35 state senate members got elected running as Clean Elections candidates, as did 45 out of 151 in the state house. Over half the Clean Election candidates who ran won their races. Overall, 46% of Democrats and 16% of Republicans in the legislature have no ties to private special interest donors. In the state senate, 59% of the Democrats and 41% of the Republicans are "clean."
In Arizona, 2 members -- a Democrat and a Republican -- of the state senate and 12 members of the state house got elected running "clean." Of Democrats in the legislature, 30% are "clean" as are 4% of Republicans. Of the six people who ran for the Corporations Commission, a statewide regulatory body, three ran "clean" and two of them were elected. The third seat on the commission wasn't up -- so now the Corporations Commission will have a 2 out of 3 "clean" majority. Overall, 36% of the Clean Election candidates who ran won their races -- including several longshots who would never have even entered politics were it not for the availability of full public financing.
In Vermont, where statewide candidates were eligible for Clean Money, Lt. Gov. Douglas Racine won re-election without private money.
Massachusetts is next in implementing public financing for statewide races and the legislature March 31 for the 2002 election cycle. Massachusetts Clean Money advocates are still concerned that incumbent legislators might seek to gut the law, as they tried to do last year.
For more on Clean Money Campaigns, phone Public Campaign at 202-293-0222 or see (www.publicampaign.org).