I was just looking at the Nation of Islam website, to see if there was any reaction. To my surprise, I found that some black leaders agree with me, and the United States Supreme Court, that it was a violation of the Equal Protection Clause not to count the overcounts.
>> The Supreme Court Asks The Question That Black Leaders Won't.
We extend our warm congratulations to Supreme Court Chief Justice William
Rehnquist for raising the issue; to Justice Anthony Kennedy for immediately
following up; and to Justice Stephen Breyer for asking the question that
BlackElectorate.com has been harping on for days: Why does the manual
recount include undervotes and not overvotes?
The issue has interested us because of all of the noble platitudes emanating from
the Gore campaign and even Black civil rights leaders, that they want every vote
counted and that they even want votes counted where there was unintentional
voter error involved. We have used this space over the last week to point out that
there is not a better case or example of what the Gore team claims to want to
fight for than that of the overvotes, particularly those which were made in Duval
County in predominately Black voting precincts.
In Duval, nearly 27,000 votes were disqualified, 22,000 of which were overvotes.
For the record, an undervote is created when a voter intentionally leaves the
ballot blank in a certain race or when a voter tries to make a choice on the ballot
but fails to mark his or her choice successfully. There were about 60,000
undervotes in the presidential election in Florida, 45,000 of which were to be
examined under order of the Florida Supreme Court. Overvotes occur when two
choices in one category are visible or detected on a ballot in one voting category.
There were over 100,000 overvotes in the presidential election in Florida.
But the most unique aspect to Duval County, more than the fact that the
overvotes occurred in majority Black precincts, is the fact that the overvotes, in
part, were caused by a difference in the sample ballot released to the public
before the election and the actual ballot that was available on election day. The
sample ballot listed all of the Presidential candidates on one page and asked
every voter to vote on every single page of a multi-page ballot and the actual
ballot listed all of the presidential candidates over two pages and asked the voter
to vote on all appropriate pages. The difference confused many voters who voted
every page as instructed by the sample ballot which explains the double vote or
"overvote" for president which occurred on the actual ballot - even the
Republican supervisor admitted that he believes that voters were confused by the
different lay out and instructions.
Furthermore, the difference in ballots appears to violate a state law that
mandates that the sample ballot and actual ballot be the same.
In light of all of this and the fact that the Gore legal team and the Democratic
National Committee (DNC) are aware of what happened in Duval county, we
have wondered why Black leaders have not raised an uproar over the fact that
the Gore legal team has not included Duval county or the plentiful overvotes in its
legal arguments and request for recounts.
All of our inquiries to Black members of Congress and our discussions with
representatives of Black civil rights organizations have revealed that Black
leaders have privately asked Gore to address the matter and have subsequently
been ignored. To the best of our knowledge, while Black civil rights organizations
have publicly raised the matter with the Justice Department (DOJ) as the matter
relates to DOJ's jurisdiction, none have had the courage to publicly demand that
Gore explain why he has left the overvotes and Duval County out of his legal
case and election result challenges.
Yesterday we wrote of how dismissive Gore super lawyer, David Boies, was of
the overvote issue, over the weekend, when it was presented to him by Meet
The Press moderator, Tim Russert. And yesterday Boise demonstrated the same
callous and non-chalant attitude toward the issue when it was brought up by The
Supreme Court.
Here is the exchange pertaining to overvotes that took place yesterday in the US
Supreme Court. The excerpt is followed by our brief comments:
REHNQUIST: So, if you disagree that 177,000 ballots will be involved in this
recount, how many do you think there are?
BOIES: It's approximately 60,000, I think, Your Honor. It turns out to be less
than that because of the recounts that have already been completed.
BOIES: But I think the total sort of blank ballots for the presidency were about
60,000.
KENNEDY: Mr. Boies, can I ask you this? Does that mean there are 110,000
overvotes?
BOIES: That's right.
KENNEDY: And if that's the case, what is your response to the chief justice of
Florida's concern that the recount relates only to undervotes and not overvotes?
BOIES: First, nobody asked for a contest of the overvotes. And the contest
statute begins with a party saying that there is either a rejection of legal votes or
an acceptance of illegal votes.
KENNEDY: But as a matter of remedy, it's ordered a statewide recount in
counties where the ballots were not contested. And that's where I'm having
some difficulty. And it goes back in part to your answer that you gave to Justice
Scalia about Broward County, and in part to the answer you're giving to Justice
Stevens now. Why is it that you say on the one hand to Justice Scalia, "Oh, well,
these weren't part of the contest"? But now, all of a sudden, we're talking about
statewide, that are not all of which were contested, but we're not talking about
the overvotes?
BOIES: Two parts to the answer.
BOIES: The reason that I said what I did to Justice Scalia was that I think that if
this court were to rule that there was something wrong with the statewide
recounts, that they were being done by canvassing boards as opposed to directly
by the court, or because the court was not supervising the particular expression
of voter intent, what the court would have done is simply cut back on a remedy
that we didn't ask for. The second part is that when you're dealing with
overvotes-and remember, this is a machine issue-when you're dealing with
overvotes, the machine has already registered two votes. Now, there may be
another vote there-a dimpled vote or indented vote-that the machine did not
register, but once you get two votes, that ballot doesn't get counted for the
presidency.
BREYER: They gave an example. The example they gave in their brief was,
there's a punch for Governor Bush and then there's a punch for "write-in" and
the write-in says, "I want Governor Bush."
BREYER: And so I think their implication is that that would have been rejected
by the machine, but if you looked at it by hand, the intent of the voter would be
clear. I don't know if there are such votes, but they say there might be.
BOIES: There's nothing in the record that suggests there are such votes. If
anybody had contested the overvotes, it would have been a relatively simple
process to test that, because you could have simply tested as to whether the
double vote was a write-in vote or was another candidate.
REHNQUIST: I gathered from the opinion of the Supreme Court of Florida that
the vice president did not ask for as broad a recount as the Supreme Court
granted, but that it thought that to do just what he wanted would be unfair, and
therefore out of fairness they granted the wider recount. Am I correct in this?
BOIES: I think that's right. I think that's how I would interpret it, Mr. Chief
Justice.
Boies' attitude toward the issue should generate as much anger and protest from
Black leaders as any other issue or behavior during this post-election
controversy. Boies' comments are dishonest and full of half-truths. First of all,
there was no original contest as Boies states because, according to Florida
Democrats, Republicans mislead them about the number of overvotes for over
three days, causing the 72-hour deadline to offer a preliminary contest of the
results to expire.
The Democrats allege that in front of witnesses, a Republican election official in
Duval County said that the number of overvotes only numbered in the hundreds.
That alleged deception, if proven true, in and of itself is misconduct and fraud
that justifies a recount.
It is this type of conduct that Leon County Court Judge N. Sanders Sauls ruled
the Gore campaign had not demonstrated in its earlier request for a recount. The
Sauls' ruling was the clearest example available that indicates that had Gore
included Duval County in his case he stood a very good chance of winning.
And as we wrote last week, even if the 72-hour deadline passed, the Gore
campaign still could have contested the results under a liberal aspect of Florida
law that allows for such action. In addition, Congressional Black Caucus member
Rep. Corrine Brown (D-Florida) and Rev. Jesse Jackson's Rainbow/Push have
filed a lawsuit seeking a recount over what has happened.
The Gore legal team could have included the findings and argument made by
Rep. Brown and Rainbow/Push in its own case and asked that the overvotes be
included in the recount.
Sources have informed BlackElectorate.com that not only is the Gore team very
much aware of the legal suit filed by Rep. Brown but that Democratic Party
lawyers helped Rep. Brown and Rainbow/Push prepare the case
So, David Boies' answer to Justice Kennedy's question is disingenuous at the
very least. Boies is not being truthful when he says that nobody asked for a
contest of the votes. We say this in light of how Boies, himself explains how a
contest begins. He told Justice Kennedy "And the contest statute begins with a
party saying that there is either a rejection of legal votes or an acceptance of
illegal votes."
The case brought by Rep. Brown is saying exactly what Boise claims never
happened. Rep. Brown's lawsuit is saying that there was a clear "rejection of
legal votes".
The Democrats have been aware of this for over three weeks and could have
weaved Duval County into their arguments.
And Justice Kennedy very appropriately wondered why the Gore team wouldn't
have wanted overvotes included in the unilateral decision made by the Florida
Supreme Court on December 8 to have undervotes counted statewide.
Boies' answer to this point is that since the machine records two votes, the vote
is thrown out. He goes no further! He simply explains how an overvote occurs
and implies his satisfaction with the fact that it isn't "registered" as a vote by the
machine.
Immediately after Boise's answer to Justice Kennedy's question, Justice Breyer
weighs in with an explanation of how it would be possible to determine the voter
intent of an overvote. He gives the example of a write-in ballot where as Justice
Breyer puts it, " if you looked at it by hand, the intent of the voter would be
clear".
To this Boies responds that he is not aware of any such examples but if they
occurred they would be easy to test as Justice Breyer suggests.
Again, Boies' comments don't reflect the fact that in Duval County overvotes did
occur, were possibly inspired by a violation of state law, and were eventually
challenged, not to mention the fact that there is almost certain that among the
100,000 overvotes statewide some would fit the example that Justice Breyer
offered to Boise.
For Black leaders, including Rev. Jesse Jackson, to make this Supreme Court
decision about undervotes, Gov. Bush's possible victory and even Justice
Clarence Thomas, is irresponsible leadership and we dare say gross negligence
toward the legitimate aspirations of the Black electorate.
Furthermore, it is sad and disappointing that it took three Supreme Court judges,
in a court that Black leaders spare no lengths to demonize, to publicly do the job
that Black leaders should be doing on their own.
Cedric Muhammad
December 12, 2000<<
finalcall.com |
