Fun_People Archive
13 Nov
The Election Gooes On...
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From: Peter Langston <psl>
Date: Mon, 13 Nov 100 11:02:29 -0800
To: Fun_People
Precedence: bulk
Subject: The Election Gooes On...
X-Lib-of-Cong-ISSN: 1098-7649 -=[ Fun_People ]=-
X-http://www.langston.com/psl-bin/Fun_People.cgi
[I was gone for the weekend, (in Wyoming, helping the Fireants release
their new CD, "Ants on Ice" -- want a copy?) assuming that when I returned
we would know whether Bush or Gore had been elected and knowing whether
Gorton or Cantwell would be representing Washington in Washington... Oops!
Not yet. So I guess election stuff is still "interesting," or at least,
it should be. Here are a few interesting things from the Red Rock Eater
News Service... -psl]
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My mother, Palm Beach County precinct clerk
from Ben Austin <sonofapalmbeachprecinctclerk@yahoo.com>
Florida Common Law and Election "Irregularities"
from "Nathan Newman" <nathan.newman@yale.edu>
Florida Voting Rights & Wrongs- Campaign for a Legal Election
from "Nathan Newman" <nathan.newman@yale.edu>
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From: Ben Austin <sonofapalmbeachprecinctclerk@yahoo.com>
Subject: My mother, Palm Beach County precinct clerk
Dear friends,
I don't normally send emails like this to a large block of people,
certainly when it comes to my family, and certainly when the import
of the issue makes it seem like the letter might travel far and wide.
But so many people have asked about this story that it seems important
to send it out. This is the true story of my mother, precinct clerk
in Palm Beach county, Florida.
My mother was a precinct clerk in Palm Beach county, Florida, election
day of 2000. Mom's very good friend Leah was a precinct clerk as
well. Both of them were incredibly upset during and after election
day, before anyone knew the import of these specific voters. And my
mother was convinced there were serious irregularities long before
they gained national prominence, and she called me to say so.
I note this because some Republicans are now asking "if there were
these irregularities, how come they were not raised until after the
election?" In fact, my mother and the other precinct clerks raised
these issues from the moment that the polls opened in the morning --
the problem is that the person they intially called on was Theresa
LePore, elections supervisor of Palm Beach county. She was the source
of the ballot confusion, and was uninterested in the issue.
First, the paper ballot was extremely confusing to these voters.
Although both major parties got a chance to review the card layout,
it is not clear if any had a chance to put the actual ballot in an
actual machine and punch the holes. The card is laid horizontally
as you vote, and it is hard to see the holes as you punch them.
And my mother, who supervised the precinct she was in (this is a paid
position, and she reported directly to Ms. LePore) said the card did
not even fit correctly in the ballot machine, so the holes in the card
did not line up with the ballot.
Anyone who thinks this was minor voter confusion has never dealt with
retirees in a West Palm Beach retirement village in Florida, I promise
you.
My mother, following the rules, said the poll workers had been told
not to help people with the cards, as it might bias the voters. My
mother witnessed many, many people who voted incorrectly. Some stayed
on a second line and had their cards re-done, some punched the second
hole (and thus were probably thrown out), and some found out they
voted for Buchanan after they had deposited their cards in the ballot
box, and there was thus nothing they could do.
Mom called me up to complain about this after the elction, and she
called me up again on Thursday, very upset after reading a story in
the New York Times (Nov. 9 2000, p. B6). The Times story states:
"After numerous complaints were received on Tuesday morning, Ms.
LePore issued this directive to the county's 106 precincts: "Attention
all poll workers. Please remind all voters coming in that they are
to vote only for one (1) presidential candidate and that they are
to punch the hole next to the arrow next to the number next to the
candidate they wish to vote for."
Mom never received this directive, and she believes that if anyone
knew they could have helped people vote their preference, the outcome
would have been very different. Instead, my mother and the others
were trying to do the right thing, and they felt that helping explain
the ballot to these people would have been helping them to vote for
Gore, something she didn't feel was proper. These women are honest to
a fault.
Leah did receive the directive, but not until 4pm on election day, and
only by accident -- someone was coming to visit from the main office
and told her about it. In the mean time, my mother and Leah (and most
of the precinct clerks) had been desperately trying to call the county
office. They had been given a phone number by Ms. LePore and told
that the phone line would be staffed throughout the day. They were
told to call if there were any problems.
Mom tried to call starting at 7:30am, calling straight through when
polls closed, but she got a busy signal the entire time. But mom
was at a polling station with only a pay phone, so she had to deposit
coins each time, and with long lines waiting for her, she was becoming
increasingly frustrated.
Leah was precinct chief at the retirement village where they live, and
ran a polling station at the clubhouse. Having a more modern facility,
Leah tried on the phone as well, and when she couldn't get through,
she called the operator to ask her why the phone was busy. Leah had
the presence of mind to get the operator's number (history is made
by people like Leah) when the operator told her the phone was off the
hook, meaning nobody was on the line the entire day. Evidently, the
supervisor's office just didn't want to hear the complaints.
Leah then faxed the supervisor's office with her concerns at noon and
again at 2pm. Nobody called Leah back until 5pm, when she heard from
Ms. LePore, with the following words "don't bother me".
So as this news starts to be spun and re-spun, let me tell you a few
things I am certain to be true:
-I can't argue intent either way, but the supervisor's office in Palm
Beach county is at the very least unable to carry out an election in
which these people have their say
-These people started trying to fix the problem from the moment polls
opened, and were fought along the way. This is not about crying about
the election once it is over.
It pains me to see the issue being politicized by both sides. Gore
has no place having his advisor Daley make statements that after a
recount, Gore will emerge victorious; and Bush has no place saying
that he is the victor, or setting up a transition team. In fact, the
idea that Bush and his brother were together on election night, with
Jeb Bush promising to "deliver Florida", draws a picture at least to
me with the semblance of impropriety, especially now that we have seen
the results so askew. I hope everyone will pay attention to the facts
here, and let the people of South Florida have the same opportunity to
vote that the rest of us had.
You are free to send this to anyone you wish.
Ben Austin
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From: "Nathan Newman" <nathan.newman@yale.edu>
Subject: Florida Common Law and Election "Irregularities"
=====================================================
Yale Law Students CAMPAIGN FOR A LEGAL ELECTION
Yale Law School 127 Wall Street New Haven, CT 06511
(203) 432-4888 spin@pantheon.yale.edu
=====================================================
FLORIDA COMMON LAW AND ELECTION "IRREGULARITIES"
The Yale Law School Campaign for a Legal Election
According to a CNN on-line report, Florida "Judges have the discretion
to invalidate elections and impose lesser remedies if they agree with
plaintiffs that there were improprieties on Election Day."(1) That
statement is precisely wrong. Such judges have zero discretion - they
are required to declare the election void.
That bright-line rule comes from the Florida State Supreme Court's
decision in Beckstrom v. Volusia County Canvassing Board, 707 So.2d
720 (Fla. 1998). Although the court in that case validated the
election in question (which hinged on the legitimacy of the absentee
voting process, a substantial difference from the Presidential
contest), it made clear that the law in Florida requires judges
to void elections in which there is doubt about the true will of
the voters. There are several principles in that decision worth
highlighting:
1) ELECTION IRREGULARITIES ARE APPROPRIATELY RESOLVED IN COURT.
"It appears that the validity of an election . . . is an issue of
great public importance whose resolution is required by the high court
. . . ."(2)
Note the use of the word "required"; we are not talking about whether
it would be in the best judgment of all concerned, or whether it is
politically responsible or wise for either candidate to support a
legal challenge. The law in Florida demands that a court resolve
the issue when there is a legitimate concern as to which candidate
the voters have chosen. When people like Karen Hughes, Bush's
Communications Director, utter remarks like "We certainly hope the
Democrats would stop this talk of endless legal battles," and "I hope
the vice president and his campaign officials would think through
their responsibility to this country and to the process," she is
arguing against the rule of law.(3)
2) THIS IS ABOUT THE RIGHTS OF CITIZENS, NOT CANDIDATES.
"The real parties in interest here . . . are the voters. They are
possessed of the ultimate interest and it is they whom we must give
primary consideration."(4)
Al Gore and George W. Bush are not the people whose rights may have
been violated (although one of them will be very sore when this is
all over). The thousands of voters who were confused by the ballot
and either voted for the wrong candidate or had their ballots thrown
out are the ones who have been deprived of that most basic right
in a democracy, the right to vote. They are the people we should be
concerned about, whether they meant to vote for Al Gore or George Bush
or someone else.
3) THE JUDGE WHO HEARS THIS CASE WILL HAVE NO CHOICE BUT TO VOID
THE ELECTION.
"[I]f a court finds substantial noncompliance with statutory election
procedures and also makes a factual determination that reasonable
doubt exists as to whether a certified election expressed the will
of the voters, then the court . . . is to void the contested election,
even in the absence of fraud or intentional wrongdoing."(5)
As with the first point, there is no discretion here - note the
language - a judge "is to void", not "may void." According to a
political scientist quoted by CNN, "It would take a tremendously
courageous judge to take responsibility for [voiding an election].
That judge or that panel of judges would be taking responsibility for
deciding who is the next president of the United States."(6) Although
whichever judge (or panel of judges) hears this case will face a
great deal of political pressure, and indeed must be courageous enough
to withstand it, he or she (or they) has little choice in the matter.
The application of the law requires that this election be voided, for
two reasons:
A) THERE HAS BEEN CLEAR, SUBSTANTIAL NON-COMPLIANCE WITH FLORIDA
ELECTION LAW AS REGARDS THE LAYOUT OF THE BALLOT.
Florida law clearly states that the ballot punch holes must be to the
right of the candidates' names, and that the Democrat be listed as the
second candidate on the ballot.(7) The law exists precisely to prevent
voter confusion. In Palm Beach, however, the holes were to the
left of some names, and the one to punch for Gore was the third one
down. That elected Democrats may have okayed this ballot is totally
irrelevant; again, we are not concerned with the rights of political
parties or candidates, but rather with the rights of voters.
B) THERE "EXISTS REASONABLE DOUBT" AS TO THE EXPRESSED WILL OF THE
VOTERS.
This is a no-brainer. The election hinges on 327 votes. According
to CNN, Patrick Buchanan received 3,407 votes in Palm Beach County, a
number even he admits is too large. "I don't doubt a number of those
ballots, of those votes that were cast for me, probably were intended
for Vice President Gore," he confessed to Larry King. Considering
that Gore received 62 percent of the Palm Beach Vote overall, there
is little doubt that the confused votes for Buchanan could have swung
the election to Gore.(8) Add to that the discounted 19,000+ ballots,
and there is simply no question about whether reasonable doubt exists.
Huge doubt exists.
Given the two clear facts - that there was substantial non-compliance
that resulted in doubt as to the expressed will of voters, the Florida
judges who hear this case have no choice but to void the election.
In so-doing, they will not be deciding "who is the next president of
the United States," because until the re-vote is counted, we cannot
know who that will be (and, given the network election-night fiascos,
we should all be wary of any predicted outcomes). Rather, they will
be affirming the voting rights of the citizens of the Great State of
Florida.
Notes
1. Reported at:
http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html
2. Beckstrom, 707 So.2d at 724. This statement is made in the
context of a finding of gross negligence, but no fraud, with regard to
absentee ballots. Gross negligence is later defined by the court to
mean "negligence that is so pervasive that it thwarts the will of the
people." Id. at 725. Surely, the validity of an election called into
question by gross negligence at the actual voting booths is equally an
issue of great public importance whose resolution is required by the
high court. . . ." Id. at 724.
3. Reported at:
http://www.cnn.com/2000/ALLPOLITICS/stories/11/10/election.president.03/index.html
4. Id. at 724 (internal quotes and citation omitted).
5. Beckstrom, 707 So.2d at 725.
6. Reported at
http://www.cnn.com/2000/LAW/11/09/election.remedies.florida.pol/index.html#1
7. Fla. Stat. _ 101.191
8. The facts and quotes in this section can all be found at:
http://www.cnn.com/2000/LAW/11/10/palm.beach.controver/index.html
end
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From: "Nathan Newman" <nathan.newman@yale.edu>
Subject: Florida Voting Rights & Wrongs- Campaign for a Legal Election
Any organization interested in signing onto the Campaign for a Legal
Election's statement, please email spin@pantheon.yale.edu
=====================================================
Yale Law Students CAMPAIGN FOR A LEGAL ELECTION
Yale Law School 127 Wall Street New Haven, CT 06511
(203) 432-4888 spin@pantheon.yale.edu
=====================================================
How dare either candidate claim an election victory (or concede)
before the facts of what happened in Florida are determined? Don't
let the politicians or the pundits deprive Florida residents of their
voting rights and the rest of the country of our democratic process.
Please do your part NOW to change the tone of the debate.
Don't let the press spin this story to force a hasty solution.
Any country can have a quick result. America is special because
we believe in the rule of law and the protection of constitutional
rights. Let's set an example for the world by proceeding in a patient
and dignified way. Any party or politician that seeks to claim this
election prematurely will have violated our trust and threatened the
legitimacy of our government both domestically and internationally.
It is our responsibility to hold them accountable because we will pay
the price.
Therefore, please do the following:
1) WRITE TO YOUR HOMETOWN PAPER (please see a sample op-ed piece
below; feel free to use/edit any part of it for letters to the editor,
etc.)
2) CALL IN TO TALK SHOWS where you live and in Florida. You can find
out which staions there are by checking out www.broadcast.com .
3) SEND THIS AND OTHER E-MAILS TO FRIENDS AND FAMILY. LET PEOPLE KNOW
THAT YOU WILL NOT ACCEPT A RUSH TO JUDGMENT BECAUSE THERE IS TOO MUCH
AT STAKE.
FOLLOWING IS A STATEMENT OF PRINCIPLES THAT WE ENCOURAGE EVERYONE TO
DISTRIBUTE TO FRIENDS AND/OR SUBSTANTIALLY EDIT AND SUBMIT TO THEIR
LOCAL (HOMETOWN) PAPERS. DON'T DELAY: TIME IS OF THE ESSENCE!
==========================
Voting Rights and Wrongs in Florida
==========================
Since Tuesday, many politicians and others have suggested that
it is inappropriate for the results of the election in Florida
to be subjected to a legal challenge. This attitude amounts to a
fundamental assault on the Voting Rights Act and the right to vote
guaranteed by state and federal constitutions.
The right to vote is the underpinning of our society. As the Supreme
Court has stated, "other rights, even the most basic, are illusory if
the right to vote is undermined". Equally important is the ability to
enforce this right to vote. During the civil rights movement, people
struggled and died not only for the right to vote itself, but also
for the right to pursue legal action if the vote was denied. What
James Baker decries as "unending legal wrangling" is the enforcement
mechanism of our Constitution.
It is premature for either campaign to declare victory or concede
defeat. It is neither up to Governor Bush nor Vice President Gore
to concede defeat or assume victory until the choice of the people
is clear. As the Florida Supreme Court has stated, "the real parties
in interest" in a legal challenge to the results of an election "are
the voters", not the candidates or their political parties.
There is too much at stake to let this election pass without
scrutinizing the many reports of problems in Florida:
* Thousands of voters in Palm Beach County may have been effectively
denied their right to vote due to an illegal and unnecessarily
confusing ballot design.
* Polls closed while people were still in line in Tampa.
* Voters were denied ballots on grounds that their precinct had
changed.
* Some election officials refused to allow translators in voting
booths for Haitian-Americans in Miami.
* Hispanic voters in Osceola County alleged they were required to
produce two kinds of identification when only one was required.
* At least two absentee ballots have already been invalidated due to
fraudulent submission, in what may be a statewide campaign of absentee
voter fraud.
Many have said that such "irregularities" exist in every election.
Although that is unfortunately true, a systemic failure in our
election process is not license to ignore the law, especially when
the very outcome of the election may be at stake. In fact, it is only
when elections are subjected to such intense scrutiny that problems
such as poorly designed ballots or racial intimidation surface.
Courts have the responsibility to ensure that elections are conducted
legally, and to order a new election if necessary. If the Palm Beach
ballots violate Florida law, this is not a legal technicality; laws
provide for a common format for ballots to ensure that the process
is uniform and clear statewide, and that the election reflects
the intentions of the populace. In fact, under Florida law, a
new election is only required if a court finds that violations of
elections laws created doubt as to whether the outcome of the election
truly reflects the will of the people.
Many people have spoken about the rule of law. What the rule of
law requires, however, is not a blind respect for the ballot count
in an election marred by denials of the right to vote, but a healthy
appreciation of the need for legal redress of any violations.
Seeking legal redress is not being a "poor sport". Rather, it is
protecting one's constitutional rights.
Other countries look to the United States as a bastion of legality,
stability, and above all democracy. Some have suggested that
the continued uncertainty over the outcome of the election is
embarrassing, but far more embarrassing would be a rush to an
incorrect result. Any country can have quick results. It is a
testament to the strength of our democracy and our legal system that
the most powerful people in our country must wait for the courts to
completely address the concerns of even the most vulnerable American
citizens.
As law students, we are especially concerned about the assault on the
right to use the courts to preserve legal rights. The right to vote
was granted to blacks only after the Civil War and made effective
only after the Civil Rights movement, and was granted to women only
after many years of organizing. To assert that the courts should
not intervene to protect this right undermines the very right itself.
The late Supreme Court Justice Thurgood Marshall, a veteran of the
Civil Rights movement himself, once stated that "the right to vote is
preservative of all other rights". Surely, the ability, indeed the
responsibility, to enforce this right is equally important.
end
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© 2000 Peter Langston
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