Cloud over the Court?	Justice Mugged by US Supreme Court By Grisso* Justice took a beating at the hands of the US Supreme Court last night, when in a five to four ruling, they stopped the recount of Florida's "undervote" that had been orderded by Florida's Supreme Court. As happens when simple principle and clear law are disregarded, the ruling is inconsistent within itself, for the very principles that they claim to uphold, are strangled by the decision itself. While Truth isn't always simple, it is always internally consistent. Falsehood, by contrast, has always a fly somewhere in the ointment. Not even the considerable intellect of a Scalia, could fashion an argument that would escape the contradiction inherent in the ruling of the majority. Certainly Rehnquist, who wrote for the majority, could not pull it off. The conclusion must be that this was a partisan act, devoid of principle. All five justices constituting the majority are Republican while among the dissenters, Souter and Stevens also are Republican. Both delivered stinging dissents. The inconsistency in the decision rests in the equal protection principle which was advanced as the basis for the court's decision. The equal protection principle is invoked in the present case to take objection to the manner in which the recount was going forward in Florida. The trial record clearly shows that the criteria applied in evaluating voter intent among the "undervotes" (ballots where the machine could not read a vote, but which, when looked at manually, could nevertheless reveal in some cases a clear intent of the voter) varied from county to county, the principal issue being whether so-called "dimpled chads" should count as revealing voter intent. In Broward County it seemed clear that dimpled chads were counted, while in at least Palm Beach County, it was a matter of the court record that dimpled chads were not counted except under certain narrow circumstances, very different from what obtained in Broward. The present court therefore concluded that voters were not being equally treated, in violation of the equal protection principle. This is erroneous in my opinion. I am no lawyer, but I do know a little something about the laws of logic. At least two of the justices, Ginsburg and Stevens, saw through the nonsense. Breyer and Souter saw it also, but acknowledged "constitutional problems" posed by the lack of uniformity in application of the Florida statute that set a general "clear intent" standard but failed to offer anything more specific that could ensure uniformity among the canvassers. But really there is no equal protection problem. And two issues of consistency arise if it is treated as such. The first is that in that case, lack of uniformity in voting methods across counties would then itself become an issue of equal protection. Votes cast using the votamatic machines evidently have five times the chance of being thrown out as those cast using the more modern system based on optical scanning systems. The trial record indicated that, on average, three in a thousand ballots are rejected by the optical scanner method, while fifteen in a thousand ballots are rejected by the votamatic method. In some mostly black precincts, the undervote ranged as high as 10%. One could therefore argue that if lack of uniformity in the application of the clear intent standard amounts to an equal protection violation, then as a matter of consistency, lack of uniformity in voting method leading to differing rates of vote rejection also must be an equal protection violation. The clear extension of such logic would have to be that the entire election in Florida was a constitutional "problem" from the outset, and indeed the same could be said for many other states besides Florida. Such a conclusion cannot be taken seriously, but it's also unnecessary, as we will see later. The second issue that arises is that the remedy then applied itself violates the principle of equal protection, for there remain 60,000 undervotes that have never been looked at to discern the will of the voter, by any method, uniform or otherwise. As long as certain other undervotes have been so looked at and tabulated, it means that the equal protection rights of the 60,000 have been violated. Mind you, the logic of an equal protection violation suggests a remedy tailored to eliminate the lack of uniformity that is complained about. As Justices Breyer and Souter maintained in their respective dissents, what was called for was to fashion an appropriate uniform standard, and allow the recount to go forward, corrected for any real or apparent constitutional problems engendered by lack of uniformity in the specific criteria applied in determining the intent of the voter. The majority clearly had another agenda, however, which was not a judicial one, but a partisan one, otherwise the remedy would have been equal to the objection, and would not have had its own internal contradictions. But had the court sought to define a standard, it would have violated its own principle that it should not legislate from the bench. And if it had remanded it to the Florida court with an order to establish a uniform set of criteria, the latter also would have been constrained, lest it be accused of legislating, also to do what it had done in the first place, which was merely to reiterate the "clear intent" standard which was all the statute provided. This is where the Breyer and Souter attempt to fashion a narrow remedy was doomed to fail. If "clear intent" was the standard prior to the election, any judicial attempt to fashion a more precise set of substandards or criteria subsequently was sure to be objected to by the Bush side as changing the rules after the game, and therefore a federal violation under Title 3, Section 5 of the US Code, a complaint that was already a part of their petition before the court. (This 3 USC 5 complaint only carried with a minority of three of the concurring Justices -- Rehnquist, Scalia, and Thomas. Souter showed neatly and elegantly in his dissent why that contention simply did not hold water, and Justices O'Connor and Kennedy broke ranks with the majority on that point.) Justices Souter and Breyer need not have admitted to equal protection problems in the first place, as I now attempt to argue. The first inconsistency earlier discussed offers a clue as to why that is. For the logic of the equal protection problem, if it is a problem, would have us concluding a practical absurdity, namely that the entire Florida election, and indeed that of many other states around the nation, violated the equal protection principle from the very beginning. Should such a suit be brought before the court, one would confidently expect that it would be dismissed, assuming it would even be heard in the first place. Equal protection, as Justice Ginsburg argued, also the defense in its brief and in oral argument, does not require that juries, judges, and election officials give uniform definition to the precise meaning, in practical application, of such legal concepts as "clear intent", "reasonable doubt", etc. More important, in the present case, equal protection should require, not so much that the interpretation of "clear intent" be the same between counties, but that the uniformity apply equally to the candidates. Hence, if dimples are being counted, then whether it's a dimple for Gore, or a dimple for Bush, either should count equally. Equal protection, or simple fairness, should require that the same standard be applied equally to the two candidates, however strict or loose might be the standard. As long as the canvasser is consistent in his reading of clear intent as between candidates, ie. he treats Gore chads equally with Bush chads, a voter has no equal protection cause of action, any more than a defendant in a criminal proceeding could claim an equal protection violation because some judges are more severe than others. Where a voter would have a valid cause for complaint under the equal protection principle, in my opinion, would be where some, but not all, undervotes are manually counted. That precisely is the situation brought about by this injudicious ruling by the nation's highest court. But the basis of their achieving this unjust result lay only in part on equal protection concerns. Equal protection provided the fig-leaf for the ex post justification for the stay that the court granted petitioner Bush in the first place, stopping the recount that had been ordered by the Florida court. That insubstantial fig leaf provided the slender cover that allowed them to do the real dirty deed, which was to run out the clock on the recount, and to make sure that 60,000 undervote ballots would never be looked at in an official context for the purposes of determining the real winner of the election. The majority finds itself leaping to a conclusion that they are in no position to make, namely that as of December 8, when the Florida court ordered the recount, it would have been "impossible" for the count to have been concluded by December 12. This "strict constructionist" court in numerous opinions in the past has ruled that such matters should be left to the state courts which are in better position to judge on the matters at hand. Not only that, the majority injected itself into what would normally be the prerogative of the state court in precluding any recount after December 12, ruling in advance that to do so would violate 3 USC 5 as a change of law after the election, even though December 12 is an optional "safe harbour" date rather than a statutory deadline, and even though such a question would normally be considered by this court to be a matter of state court prerogative. The hypocrisy is staggering. The over-reaching is evident. The only reason for this must be a lack of impartiality, with the majority ruling in accordance with what it takes to achieve a desired outcome, ie. give the election to George W. Bush, rather than in a fair reading of law and precedent. This was a judicial coup d'etat, and justice will be a long time recovering from the mugging that was administered by the nation's highest court. It is a sad reminder, especially for black folk, given the history of the founding of this slave republic in which, in the beginning, only propertied white men could vote, that a constitutional republic need not be a democratic republic, and certainly need not be a just one. The majority found itself saying, and it is evidently true, that ordinary citizens do not have a right of federal franchise that the state legislatures are not empowered under federal constitution to take away. If justice can be mugged by the nation's highest court in the manner that we have seen, freedom also is under threat. Grisso *Grisso is a 48 year old African of the diaspora. He has an engineering PhD, and is the author of a mathematical treatise on decision analysis under uncertainty. His email address is grisso@TheAfrican.Com. Some tips: For your pocket: http://www.sixfigureincome.com/?94054