The ignored elephant

Thomas Sowell

12/7/2000 12:00:00 AM - Thomas Sowell

ONE OF THE MOST IMPORTANT facts about the Florida election has been ignored in most of the media: There was nothing unusual, much less unique, about the election in Florida. It was like elections all over the country, year after year.

There are always ballots which cannot be counted for one reason or another -- millions of them nationwide. There were more of them in Republican counties in Florida than in the Democratic counties where so much noise, so much spin and so much litigation has been unleashed. These plain facts are like the elephant in the middle of the living room that everyone pretends not to see. What has been happening in Florida after the election is a contrived crisis, used to justify recounts and re-re-recounts, in a desperate hope of winning after losing.

A telemarketing firm was used by the Gore operatives to seek out voters who had any conceivable reason to be unhappy about the voting. If you contacted enough people who went to the Super Bowl, you would find some who were unhappy about their seats, the food, the sun in their eyes, or whatever. It is hardly surprising that the telemarketers came up with some voters who didn't bother to read the plain instructions, written in big letters -- and who therefore either messed up their ballots or were not sure afterwards whether they had done it right.

After collecting such voters in a few heavily Democratic counties, the Gore camp trumpeted this into a national crisis via the media. But utter silence reigned over similar voters in Republican counties, whose votes counted only if they were perforated correctly and read by the voting machine. Yet this has been done under the guise of "making sure that every vote counts"!

Worst of all, a very large segment of the public has bought the spin. Even Florida Supreme Court justice Barbara Pariente responded to charges that this was a grossly unfair way to conduct an election recount by asking why Governor Bush had not requested a similar recount in the rest of the state. In other words, why didn't he do something unprecedented too? More generally, why don't all candidates turn all close elections into legal extravaganzas after the fact?

In future elections, maybe they will. What made Justice Pariente's question so petty and prejudicial was that the issue before the Florida Supreme Court was not Gore versus Bush, but whether elections and recounts are to be conducted even-handedly and in accordance with the law. Even Florida's Democratic attorney general expressed misgivings about the legality of using "a two-tier system" of counting votes one way in a few Democratic counties while counting them differently in the rest of the state.

Anyone who criticized the Florida Supreme Court for its judicial activist order, depriving Secretary of State Katherine Harris of the discretion which the state law gave her, was denounced in much of the media for daring to question these state justices' actions -- until the U. S. Supreme Court unanimously vacated the state court order and asked to know what legal basis it had. A judicial coup d'etat is no more legitimate than a military coup d'etat.

The same U. S. Supreme Court opinion pointed out that the Florida legislature has authority under the U. S. Constitution to select the state's electors if it wishes. Yet media liberals continue to denounce the idea that the legislature could exercise its constitutional authority, instead of bowing to courts that exceed their authority. Too many people in the media treat judicial despotism as the rule of law, when it is the exact opposite of the rule of law.

The rule of law means that judges are as much under the law as anybody else. And the separation of powers -- on which our freedom and democracy ultimately depend -- means that the legislature's authority is no less than that of courts. The legislature's authority is in fact greater than that of courts in the particular areas where the constitution has granted them the specific authority to act, just as that of the courts is greater in other areas.

What a tragedy if this great constitutional edifice, so carefully constructed and followed for so long -- and defended with the bloods and lives of so many Americans over the generations -- can be undermined so easily with a contrived crisis, clever spin and brazen actions.