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Election 2000 and . . .

Various aspects of the Constitution for the United States of America became relevant during the post-election struggle to gain the Whitehouse.

Those portions of the Constitution are presented on this page along with a synopsis of what aspect of the post-election struggle evoked them.

It is my intent to render the content of this page totally factual, although, I may include links to other pages both on-site and off-site, which are less so.

As I prepare this page for upload to the net, the date is December 13, 2000 and the time is 11:00 EST. It has already been officially announced that Vice President Al Gore intends to deliver a concession speech tonight.


Article II, Section 1, Paragraph 2

 
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The portion of the Constitution for the United States of America cited above became relevant during the post-election struggle for the Whitehouse in the year 2000.

This citation is interesting, because, read on a stand-alone basis, it appears to confer power upon the Florida State legislature to appoint electors, as they were in session to do when the supreme Court ruled.

However, the Democrats could have opposed that appointment based on the ex post facto clauses.


Article IV, Section 1

 
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The portion of the Constitution for the United States of America cited above became relevant during the post-election struggle for the Whitehouse in the year 2000.

Legislation and court cases from States other than Florida were cited many times during the litigation. Inclusion and consideration of such rulings and legislation from other States has a basis in the Constitution in Article IV, Section 1, cited here.


The ex post facto Clauses

 
No Bill of Attainder or ex post facto Law shall be passed.
 
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The portions of the Constitution for the United States of America cited above became relevant during the post-election struggle for the Whitehouse in the year 2000.

The first citation consists of Article I, Section 9, paragraph 3 in its entirety. This entire citation addresses ex post facto laws; however, to be consistent with the second citation, I have highlighted it in a similar manner.

The second citation consists of Article I, Section 10, paragraph 1 in its entirety. This citation relates to several other matters, hence, the highlighting of relevant portions.

By these two portions of the Constitution for the United States of America, ex post facto laws are rendered null, upon judicial review, whether they be passed at the State or the federal level.

In the context of events which have occurred since the year 2000 presidential election, the ex post facto clauses cut both ways.

Objections raised by Republicans to the effect that "you can't change the rules after the game is played" have a basis in the Constitution. That basis is the ex post facto clauses cited here.

On the other hand, these same ex post facto clauses could be used by Democrats to object to Republican efforts to appoint a new slate of electors in special session, apparently based on Article II, Section 1, paragraph 2. The rules before the election were that electors were to be selected by popular vote (apparently). By the act of calling that special session, the Florida Republicans appear (to me, at least) to have tried to have it both ways.


Amendment IX

 
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The portion of the Constitution for the United States of America cited above became relevant during the post-election struggle for the Whitehouse in the year 2000.

Assertions were made to the effect, "the right to vote includes the right to have that vote counted". These assertions have a basis in the Constitution. That basis is Amendment IX, cited here.

There is no clause in the Constitution that explicitly says, "the right to vote includes the right to have that vote counted". Hence, this right, if it is indeed a right, is an unenumerated right.

Even if there exists federal or State legislation asserting such a right, that legislation rests at least in part upon the foundation provided by Amendment IX, cited here.

Even if no such legislation exists, the demonstrations by the people claiming such a right is the first step toward rendering it, or establishing it as, a right.

All that having been said, the effects, historically, if any, of all such demonstrations has been, as I understand it, to fix, or address, the next occurrence of similar circumstances.


Amendment X

 
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The portion of the Constitution for the United States of America cited above became relevant during the post-election struggle for the Whitehouse in the year 2000.

Many allusions were made to the deference given by the supreme Court to decisions made by State courts.

This deference has a basis in the Constitution for the United States of America.

That basis is in the 10th amendment, cited above.

If one considers the United States of America as an organization, and I view it as both fair and intellectually honest to characterize a nation as an organization, then the 10th amendment seems to be affirmed by a generally accepted principle of organizations:

 
delegate authority to the lowest practicable level.

That generally accepted principle, that common sense, that wisdom, is reflected in the Constitution.

In my view, the 10th amendment is not the only portion of the Constitution to which the terms common sense or wisdom might be applied.


Amendment XII

 
The Electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of the President shall be eligible to that of Vice-President of the United States.

The portion of the Constitution for the United States of America cited above became relevant during the post-election struggle for the Whitehouse in the year 2000.

The content of this amendment addresses what to do if no candidate gets a majority of votes in the electoral college. Hence, it addresses a tie, among other things.

This portion of the Constitution became relevant, not only, or even so much, for its content, but also, and even moreso, because of the events it grew out of, and the resemblance of those events to events occuring during election 2000.

The similarity between these two elections lies in the fact that the rules which existed at the time the election was held did not address (at all in the first case, adequately in the current election) the circumstances or results produced by the election.

Following the rules in effect at the time of the election (in the first case), the result was 35 (if memory serves) consecutive tie votes in the electoral college.

There was no prior rule that told what to do in case of a tie.

Finally, someone changed their vote.

And thus was the situation that occured during that election addressed and resolved.

But the lesson was not lost on anyone. The 12th amendment was passed to address that contingency, should it occur again.

In that case, a deal was struck to address the current election and all legal, constitutional changes made were addressed at future elections.

In the case of election 2000, no such deal was struck. The election went more or less directly to court. This reflects poorly on both candidates and both parties, in my view.

While the prior paragraph is defensible as neutral, since I direct criticism to both parties and candidates, my further thoughts on the matter can in no wise be defended as neutral. I'm a human being. I'm involved. What can I say? Should I decide to commit more thoughts along these lines to the web, I will likely link to them from here, but I will not place them here.


Amendment XIV, Section 1

 
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The portion of the Constitution for the United States of America cited above became relevant during the post-election struggle for the Whitehouse in the year 2000.

The supreme Court of the United States of America, by a margin of 7 - 2, agreed there were Constitutional issues raised by the latest Florida supreme Court ruling.

Under that ruling, based apparently upon the concept of including all legal votes cast, the Florida State supreme Court ordered the inclusion of the results of partial recounts from Miami-Dade county, among others.

In that county, as I understand it, based on reports in the media, as well as my recollection of sworn testimony given in the televised trial presided over by Judge N. Sanders Sauls, that partial recount included a complete manual recount of all ballots in the 20% portion of Miami-Dade that is heavily Democratic.

During that manual recount, the Miami-Dade board decided to switch to counting only the undervote in the remainder of the county.

This is one of the issues that ratcheted up the tension among the parties.

That is one of the issues that led to the trial presided over by Judge N. Sanders Sauls.

The order of the Florida supreme Court to include the totals produced by that partial recount, while at the same time imposing an order to manually recount only the undervote in the rest of the county - that order appears unfair, to my eyes, eyes admittedly with no formal legal training or education.

I doubt whether such a ruling could ever be applied fairly to even a State or local election in Florida. But maybe it could.

But even if such a ruling could be applied fairly and legally to a local or State election in Florida, look at amendment 14 of the Constitution for the United States of America.

Section 1 of that amendment, as cited above, extends equal protection to all persons born or naturalized in the United States. That amendment applies to people in all 50 States, not just Florida.

Consider the following excerpt from that portion of the Constitution:

 
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

In my view, the inclusion of the results of uneven counting in Miami-Dade county does in fact and in effect abridge the privileges or immunities of citizens of the United States to have their vote counted fairly. It abridged the rights of other citizens in Miami-Dade county to have their votes counted fairly. It abridged the rights of other citizens all across the United States of America to have their votes counted fairly, including the other citizens of the State of Florida, as well as citizens in the other 49 States.

That portion of the latest Florida State supreme Court ruling alone strikes me as sufficient basis to account for the 7 - 2 agreement that there were Constitutional problems with that ruling, as it pertains to equal protection. I cite that 7 - 2 margin in support of my contention that my assertion to this effect is not political.

In deference to the two justices who dissented on this portion of the ruling, and in deference to the four justices who dissented on the order contained in this ruling, there may indeed have been a Constitutionally viable remedy available to Vice President Al Gore.

But(!), the course pursued by the Vice President and his supporters did not come anywhere close to such a remedy.

In my view, the latest ruling by the Florida State supreme Court made and did order the enforcement of a law that violated the equal protection provisions of the United States Constitution.

The supreme Court of the United States was correct in their reversal of that ruling.

The Democrats said they wanted to win fair and square.

By so saying, they inccurred a political obligation to pursue a fair and square review of the election.

By pursuing a legal remedy under the contest provisions of the State of Florida, they incurred a legal and constitutional obligation to pursue a remedy in keeping with the Constitution.

As I understand it, it is the obligation of the plaintiff to present to any court a viable remedy when petitioning for a redress of grievances against any defendant.

That having been said, it was incumbent upon Vice President Al Gore to find the extant written standards regarding manual recounts in Florida. I understand there exists such a standard in Palm Beach County, written in 1990. I am told that this written standard required penetration of the ballot card by the stylus. It required a hole, not a dimple.

As the party seeking a review of the election, it was incumbent upon Vice President Al Gore and the Democratic party to find that written standard and insist upon its implementation.

They failed to do that.

As an individual seeking to secure the office of President of the United States of America for himself, which office requires him to recite an oath "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.", Vice President Al Gore should certainly be familiar with the concept of equal protection and insist on the pursuit of a remedy that was in keeping with the very document which he, if elected, would be required to observe and follow.

Vice President Al Gore failed to do that.

Judge N. Sanders Sauls said as much.

The Florida State supreme Court was wrong to reverse Judge Saul's ruling.

The United States supreme Court was correct to reverse the Florida supreme Court.


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