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In the end, the seven justices of the high court that is known as the
most liberally inclined to depart from the law among all 50 states were
tripped up in their attempt to give the presidency to one of their own
party by a very simple principle taught in all law schools early on, the
requirement that you harmonize all the provisions of a statutory scheme
not to be in conflict if you possibly can. And there is another
hornbook corollary which they ignored: Never overthrow a statute on
state or federal constitutional grounds if you don’t have to. This
maxim applies whether it is the federal or a state constitution.

Because five justices of the United States Supreme Court had the
courage to test these actions taken in defiance of hornbook principles
against the plain language of the United States Constitution in the face
of a largely hostile corps of the media elite, the republic has been
saved. The spirit of Dr. Franklin is looking down today on Justice
O’Connor, who observed, in colloquy, what the assailants of the
Constitution could not avoid: the moving of a date set by state statute
for the electoral process by 12 days, from Nov. 14, the date set in
statute by the Florida legislature, to Nov. 26, an arbitrary date set by
the Florida Supreme Court, operating outside the law, was a substantial
departure from the statutory prescription of the Florida legislature.
“You have kept the Republic, madame.” To which we add, just barely, but
we’ll take it.

There never was any conflict in the statute, although the entire
plethora of pundits called forth never bothered to point it out. The
contention that there was was simply a pretext to reach the desired
political result. The setting of the date of certification by the state
legislature at Nov. 14 does not conflict with the election day being on
Nov. 7. The Florida rogue jurists went outside the language of the
statute to find a supposed conflict by assuming the totally extraneous
facts that such a period of time created a conflict because heavily
Democrat counties of large population could not do a recount in such a
time period, whereas smaller, presumably Republican and less urbanized
counties could. This is not an honest identification of a statutory
conflict; it is a partisan assertion.

There is no reason why Palm Beach, Broward and Miami-Dade counties,
with their large populations, but equally large tax base, could not have
geared up to do what they had to do in the one-week period. There is no
reason why they did not long ago adopt a system more conducive to
accuracy and recounts than the one they have persisted in using. They
are simply the heirs of that long ago legendary political boss in rural
Texas who waited until he saw how many votes were needed to allow LBJ to
defeat Coke Stevenson. It is tempting to keep a system that gives the
power to the counters, not the voters.

This masterfully written majority opinion is surprisingly polite and
moderate, but it sticks the knife with remarkable dexterity into this
politicized pretense of law which the nation has witnessed: First, it
notes that the Florida Secretary of State declined to waive the Nov. 14
deadline specifically set by the legislature in the statute but that the
Florida Supreme Court then set the deadline for Nov. 26, clearly moving
it. No other comment on this is made, it is simply observed that the
State Supreme Court set a date not prescribed by the legislature in the
statutes. The point is driven home unmistakably, however, some pages
later where the opinion notes — after setting out the Florida Supreme
Court’s having ordered partial recounts included in vote totals in clear
violation of the 14th Amendment equal protection requirements — that
this no doubt resulted from the “truncated contest period.” But then
the opinion notes, in what is a killer for the Gore team:

The press of time does not diminish the constitutional concern. A
desire for speed is not a general excuse for ignoring equal protection
guarantees.

This is coupled with the opinion’s noting that the contest period was
“truncated” at “the respondent’s [the vice president's] own urging.”
Touché, Mr. Boies and the Florida Supreme Court.

The bulk of the opinion is taken up with detailing and amassing the
equal protection horrors of what the Florida Supreme Court ordered, and
what Mr. Boies got when he got what he asked for — making it clear that
there was no intention on the part of either of “making every vote
count.” These horrors were sufficient to enable the opinion, based on
those 14th Amendment violations, to be a seven justice opinion with only
two dissents and even for Justice Stevens to obliquely note the
political and rogue nature of the Florida Supreme Court by fulfilling
the prophecy of its dissenting Chief Justice that it was harming the
public’s respect for courts as an institution.

The most important aspect of the opinion from the standpoint of the
victory it represents for a revived American constitutionalism is its
uncompromising recognition that the power to determine the manner of
selecting electors for the office of president is uncompromisingly in
the hands of legislatures, which may not have a vote at all if they so
wish, or may recall a voting process for presidential electors once
established, but which must, if electors are chosen by vote, make sure
that the manner thus selected conforms to the federal constitutional
requirement for equal protection contained in the 14th Amendment.

Thus the cry of fairness and equality which was the “progressive”
mantra of the vice president and his counsel in creating this mess is
skillfully turned upon them and they are shown as the ones abusing both
requirements, a trap of their own devising. In winning their initial
victory they did themselves in under a Constitution adhered to, and we
should all be grateful that they did. They were arrogant and
overconfident. Mr. Boies’ is said to be a brilliant lawyer, and that he
may be, but here we did not see brilliant lawyering; we saw a playing to
the gallery of the dominant statist and “progressive” mainstream media,
of which the Florida Supreme Court was correctly perceived to be an
extension, with the notion that out of that would come a kind of “media
equity” power that would overwhelm the statutory scheme, the Florida
legislature and the Constitution of the United States. Fortunately for
the nation and the Constitution, only the Florida Supreme Court opted to
operate in this forum of media equity, not the United States Supreme
Court. For, reduced to its essence, Mr. Boies argument in that initial
victory before the state Supreme Court which has now done him in
consisted of demonstrating to the mainstream press and a court operating
in that forum that he too was a Democrat, just as they were, and that,
therefore, they should do what he requested and allow his client to
deprive Gov. Bush of his victory. The operation of Mr. Boies and the
vice president, as matters progressed, owed more to Castiglione’s Book
of the Courtier than it did to Blackstone’s Commentaries.

Where they badly miscalculated was in not realizing that the forum of
media equity as it existed just a few years ago has changed so
dramatically, decentralized so, and allowed such a constant and
instantaneous feedback of information as to what was going on, that
these techniques that have worked so often don’t work as well anymore.
Every move and utterance was tracked and recorded 24 hours a day on
cable television and echoed all over the Internet and talk radio. Every
ruse and deceit was exposed without mercy. The new media, like the
vacuum cleaner monster in the Beatles’ movie, “The Yellow Submarine,”
sucked up every piece of information in sight and fed it to a public so
riveted that seasonal retail sales dropped off 10 percent because they
were glued to the tube and their computers and not to the malls. We saw
all the posturing and heard all the half-truths, and knew enough from
the constant surveillance to know that that’s what they were.

America will never forget people peering, poking and arguing about
little specks of punch card in the pretense of some uniform standard as
things steadily grew less accurate and less certain in the sheer and
obvious subjectivity, confusion, interference and degradation of every
recount and moment of obstruction. Nor will those of us who were in
Chicago in the 1960s soon forget the sight of the son of the veritable
international symbol of mob-based election corruption lecturing us on
the alleged “stealing” of an election.

An entire reservoir of good will built up in the 1960s civil rights
movement in middle America was dissipated as we watched the irreverent
Jesse Jackson and the fraudulent Al Sharpton degenerate into irrational
nuttiness and flailing accusations without a shred of supporting
evidence. We have seen 90 percent of black America marginalizing
itself in the name of empowerment and a Democrat Party driving away
legions of its long-time adherents in a flagrantly socialist outcry of
power to the people with an obvious goal of destroying a very important
portion of the Constitution.

To those who say the nation is sharply divided, I say it’s about
time. For years we have seen no effort to defend the Constitution in
the face of unrelenting “progressive” assaults upon it. Now millions
have focused upon it, seen it in action and come to realize its great
wisdom and the startling foresight of those who formed it. It took one
third of the population to win the Revolution in the first place, with
one third going Tory and the other one-third vacillating in the middle
before realizing where the future lay. We have led the world for the
last hundred years but are now in great danger of failing to lead. But,
suddenly, fully one-third of the population has been energized to
identify once again with our founding vision. As it fell out in this
contest, the Republican Party came down squarely on the side of the
Constitution and the Democrat Party on the side of assaulting it.

We do not know if that will be the case in the future. The challenge
before us will be to push both parties into adherence to the
Constitution and the rule of law under it so that success in the keeping
of the republic becomes, not an occasional event, but an ingrained habit
among all candidates, particularly those who succeed in getting elected.




Larry Elgin
is the Chairman and counsel of

U.S. Defense-American Victory
in Washington, D.C. E-mail.

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