Teach Your Children Well: Bush Lost, Democracy Lost
Soon a consortium of major media organizations (including the New York Times, the Washington Post, CNN, the Associated Press and others) will announce the results of a massive study of the undervotes and overvotes in Florida. Before this result comes out, I think it might be instructive to revisit the overlooked results of the last such study, because "neutral observers" seemed to miss the fundamental point -- under Florida law, Bush really did lose.
Just a few weeks ago, the Miami Herald and USA Today finished their own study, which provided new tarnish for the Bush victory bandwagon. And although their analyses tended to obscure the results, their conclusion should have been simple: Bush lost. Not only did fewer people in Florida attempt to vote for the Shrub, fewer actually did vote for him.
(a) Bush lost under Florida law.
Their study broke the undervotes into four types, based on the standard the accounting firm (BDO Seidman) used to categorize them:
(1) lenient or liberal (dimple in Presidential vote);
(2) Palm Beach (dimples in other races present);
(3) two-corner chad (two or more corners detached);
(4) strict or clean-punch (chad completely detached).
Under the first two standards, the papers reported, Gore won; under the latter two, Bush had more votes. Under all four standards, the margin was close.
Their breakdown, however, misses the point -- it is not these four standards that should matter, because these are only "proxies" for discerning voter intent.
Under Florida law, clearly articulated in the Florida statutes, "No vote shall be declared invalid or void if there is a clear indication of the intent of the voter." (I must confess, I am not at this moment taking this citation from the law books; I'm taking it from Jake Tapper's Down & Dirty, a book I couldn't put down once I picked it up.)
Using this legal definition, Bush lost. Obviously the accounting firm that the Miami Herald and USA Today hired was able to differentiate between the dimples on the ballots they put into categories #1 and #2 above, and the thousands of ballots that they concluded had no markings at all. Thus, in these dimpled cases, the voter's intent was clear to the accountants, these honest observers (as compared to, say, James Baker). Counting these votes, plus the overvotes -- which were supposed to be counted last November -- means that Bush lost, under Florida law.
The law that the Florida Supreme Court was trying to follow. The law that the U.S. Supreme Court subverted. The law that should have given Florida's electoral votes to Gore, thus sending George W. back to Texas.
We should remember this outrage when we "mark" the six-month anniversary of the Scalia Five's judicial coup on June 12th.
(b) Bush also lost under his own Texas law.
The almost unbelievable -- and widely unreported -- truth is, Bush lost under his own rules! Under Texas law -- a bill signed into law by Bush when he was Governor! -- the Texas Election Code provides guidance on determining "the intent of the voter." The Bush-approved Texas law said that a person's vote should be counted if:
(1) at least two corners of the chad are detached;
(2) light is visible through the hole;
(3) an indentation on the chad from the stylus or other object is present and indicates a clearly ascertainable intent of the voter to vote; [or]
(4) the chad reflects by other means a clearly ascertainable intent of the voter to vote."
(This quote is taken from the never-filed 12/13/01 Gore brief, also in Jake Tapper's book.)
Under these Texas standards, then, the accountants' dimpled votes count. This means Bush got fewer votes under his own law -- he lost again.
(c) Bush also lost the national popular vote.
Since the President-Select got half-a-million fewer votes nationwide, only the archaic, elitist, and unfair electoral college, invented as a compromise with the Slave Power states, distorted the will of the voters. We should not let this just slide by -- the electoral college has got to go.
(It should be noted that in the days leading up to the election, the Bush campaign was preparing a no-holds-barred attack on the electoral college, to focus largely on talk radio and media ads. If the returns had come out in reverse, with Bush leading in the popular vote and Gore winning the electoral college, a scenario that was much more widely anticipated, the Bush campaign was fully prepared to claim victory. See, for example, Michael Kramer, New York Daily News Online, 11/1/00.)
(d) Bush's allies cheated.
As David Corn has pointed out, in the ethical world that President-Select Bush now pretends to inhabit (that ethical regime that George Will and Bill Bennett attempt to impose on the rest of us), once Bush found out for sure that his allies had bent and broken the rules to elect him, his "ethical beliefs" would have forced him to gracefully step aside. This would be the honorable decision, the path of dignity and integrity. Sure, any day now ...
Bush should have abandoned the throne once he realized that thousands of African American voters were "accidentally" left off the voter lists, denied provisional ballots, left in line when the polls closed, not given laptops in their precincts to check on voter registrations and even intimidated by police roadblocks.
The Shrub should have gone back to his ranch once it was proven, as John Lantigua and Greg Palast have documented, that thousands of false "felons" were unfairly purged by Secretary of State Katherine Harris' office, using a private, GOP-affiliated data firm -- many more than enough to defeat Bush under even the Miami Herald/USA Today "strict" standard. (Indeed, had these felons not been falsely purged, Bush would have been so far behind on election night that even his cousin at Fox News might not have called the election for him!)
And what about the hundreds and thousands of former felons whose rights had been restored by other states, before they moved to Florida? The Florida Supreme Court had made it exceedingly clear that these voters had the right to vote -- but that did not stop the Secretary of State's Office from advising the counties that they should be purged. Again, this fact alone should be more than enough to convince an ethical man -- perhaps even one as noble as Will or Bennett -- that justice had not been done.
And there is the obvious equal protection "log" which somehow Justice Scalia managed to overlook in his frantic search for a "speck" in the Florida Supreme Court's eye: the huge disparity in overvotes between counties which had precinct-level opti-scan voting machines, and those (poorer and more minority) counties stuck with old punch card machines. A uniform system means a Bush loss -- there is absolutely no doubt about that.
Clearly more people in Florida wanted to vote for Gore than for Bush. This is especially true when you factor in the thousands of Gore votes lost to the butterfly ballot in Palm Beach, and the misleading sample ballot instructions in Duval County. Thus, Bush did not earn his election, by any moral evaluation. (Bill Bennett's silence on the ethics of these facts, while refreshing, is instructive. Even Pat Buchanan knew he did not earn those votes.)
And then, of course, there was the "unprecedented" (in every sense of the word) intervention of the Scalia 5, a partisan judicial coup which protected their retirements, promotions, and ongoing family hirings. Was it the worst Supreme Court decision in U.S. history, as Constitutional scholar Jamin Raskin has suggested? Maybe we should have a contest...
So what, you say? Since Bush is in office, what difference does it make?
Well, first off, let's never forget that he lost. Future generations must learn that American democracy was not well served by our institutions. Like the South African, Chilean, and Guatemalan Truth Commissions, it's important for historical memory to remember that "Spurious George" did not legitimately win.
Second, this strengthens Democrats in their opposition to Bush's most ideological and mean-spirited appointments, particularly given Jim Jeffords' principled switch. The more that it is clear that Bush/Cheney really lost, the less obligation for Senate Democrats to defer to any right-wing assault on the judiciary, especially when the Administration swerves far outside the bounds of its supposed "compassionate conservatism."
Third, by pointing out that the Miami Herald/USA Today study shows that Bush got fewer votes under Florida law, perhaps we can remind the upcoming media study that the law was not the same as Jim Baker's daily spin. Following the intent of the voter, the major media should be led to conclude that the man with the fewer votes is in the White House, and thus, that justice was denied.
Fourth, if someone kidnapped your child and it took you six months to prove who did it, would you just "move on" and forget about it? Of course not. What if someone stole your car? Would you still be interested if the police tracked down the thief six months later? Naturally. Is American democracy worth less than an SUV? The question answers itself, which may be why the major media refuse to ask it.
Fifth, "Landslide Lyndon" Johnson never fully recovered from his 1948 Senate election, in which his victory depended on a "late" set of ballots from Duval County, where a couple hundred votes were cast in alphabetical order. Though it did not keep LBJ from eventually becoming President, the public and the media never quite regarded him as honest after that "victory." Why is Bush treated differently? Johnson only cheated to get a Senate seat!
Finally, this study reminds us once again that George Bush has no mandate. Since Bush got fewer votes, he was never given "the consent of the governed" that Jefferson articulated in the Declaration of Independence -- the consent necessary for American democracy to assert its "just powers." The Shrub has no mandate for drilling; for repealing the estate tax; for arsenic and CO2; for repealing family planning and choice; for stacking the courts.
Teach your children well -- Bush lost. Democracy lost. For now.
Steve Cobble is an associate fellow at the Institute for Policy Studies and director of the Campaign for a Progressive Future.