- The Washington Times - Tuesday, December 12, 2000

In arguing for the resumption in Florida of what euphemistically passes for “vote counting” these days, which the U.S. Supreme Court halted on Saturday, liberals on and off the U.S. Supreme Court have gone on the attack. They are doing so on two separate fronts, both of them spurious. As this page went to print, no ruling had been issued by the Supreme Court. Nonetheless, the evidence on both counts is overwhelming.
Liberal Justice Ruth Bader Ginsburg yesterday led the attack within the Court. She is cagily attempting to turn the tables on five justices: William Rehnquist, Antonin Scalia and Clarence Thomas, who regularly vote in favor of states’ rights at the expense of federal authority, and so-called swing-vote justices Sandra Day O’Connor and Anthony Kennedy, who occasionally join their more conservative colleagues to form the requisite majority. Justice Ginsburg outlined her argument during the first U.S. Supreme Court hearing, asserting “[I]n case after case, we have said we owe the highest respect to what the state Supreme Court says is the state law.”
Standing alone, the statement by Justice Ginsburg, who, as it happens, generally votes in favor of increasing federal power at the expense of states’ rights, holds great merit. However, Justice Ginsburg’s clever assertion completely ignores what is clearly understood by her and the three other liberal justices who joined her Saturday in voting against halting Florida’s “vote counting.” Yesterday, they were desperately seeking a fifth justice to join them in favor of “vote counting.” Indeed, the principal issues before the U.S. Supreme Court have nothing to do with states’ rights. Rather, they involve deference or the lack thereof to the U.S. Constitution and federal statutes, both of which supersede the Florida constitution. It also involves respect for the newly created Florida law that the state Supreme Court indisputably, and in violation of federal law, rewrote after the Nov. 7 election.
Secondly, the practical, and unconstitutional, effects of the Florida court’s activities were to violate the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. Indeed, anyone, including Supreme Court justices, who witnessed the cable-televised chaos from the manual recounting of “dimpled chads” in Palm Beach, Broward and Miami-Dade counties in response to the Florida Supreme Court’s Nov. 21 decision knows that voters whose ballots were not manually recounted and voters in other counties were denied equal protection of the laws. The pervasive chaos proved to be the antithesis of due process. Meanwhile, the new “vote-counting” scheme, which the Florida court dictated on Friday, was limited to undervotes statewide. This directly violates Florida law requiring that manual recounts must involve “all ballots” and does very little to address the obvious due process and equal protection violations.
Outside the Supreme Court, liberals were trumpeting Florida’s sunshine law, which will guarantee that the “votes” will eventually be “counted” regardless of whether the U.S. Supreme Court shuts down the Florida debacle once and for all. Well, if liberals plan to “count” these undervotes using the same constantly changing, unconstitutional procedures that have dominated the manual “vote-counting” process so far, by all means, let them have at it. That is no reason why the U.S. Supreme Court should sanction this blatant fiasco as the deciding factor in the nation’s presidential election.

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