Open Letter to Vice President Al Gore 11/2000

See: Postscript: 12/12/00

November 10, 2000

Dear Vice-President Gore,

This email is to briefly express my opinion on the electoral outcome of the most recent Presidential election and to make certain recommendations to you. Before I make those recommendations, I would like to underscore my strong support of you and your stand on critical issues that affect not only the fate of this country, but the world.

However I have strong concerns regarding your recent challenge to the Presidential election results. More specifically, your campaign's backing of legal actions by Floridians that are challenging alleged irregularities at the polls.

In my opinion there should be only one criterion for your not conceding the election at this point. Namely, if by your actions, a likely result will be a clear, fair and decisive result that will enable you to begin a new administration with the good will and backing of the American people and its political representatives.

In my view, any serious allegation of voter FRAUD in Florida needs to be legally pursued by you and that state's voters. However, the issues, as I understand it, are various "irregularities," apparently not uncommon in Florida and other states. It is most unfortunate your election may have been the "victim" of such irregularities. However, even if the legal challenge succeeds and a revote or disqualification of the Florida vote occurs (best case for your being selected President of the United States by the Electoral College), I cannot see how the preponderance of Americans would see the result as clear, decisive and fair. Further, similar legal challenges by Bush and his supporters, may result in a process that becomes interminable and unable to resolve fairly in the weeks leading up to the convening of the Electoral College and finally the inauguration.

Mr. Vice-President, I strongly encourage you at this point to reevaluate your current post election strategy in the light of what is in the best interests of the next administration and most importantly the American people. If you feel that you can achieve a victory that will be perceived by Americans (both those that voted for you and those that didn't) as fair, decisive and clear, then by all means continue your current course. If you cannot (and at this point I personally can not see how), then I would encourage you to concede the election after the completion of the Florida recount if you lose the popular vote in that state. No matter what you do, I will continue to support you and your policies/vision for this nation and the world.

Postscript, 12/12/00

Today, as a result of, in my opinion, an improper, unauthored and self-fulfilling Per Curiam decision by the United States Supreme Court, Al Gore effectively lost his legal battle to have under-votes and manually counted votes counted and/or accepted in the Florida 2000 Presidential election. In the process, the U.S. Supreme Court overturned two Florida Supreme Court decisions. In addition, the bedrock constitutional principle that every vote should count and that every voter has a right to be heard was dealt a sharp blow by the nations' highest court. Further the Court's decision called into question state election law throughout the country and the state's judiciaries' right and capacity to interpret such law.

In my view, the damage to the U.S. Supreme Court's credibility will have an equal or perhaps greater significance than another consequence of their decision, i.e., the election of George Bush as the forty-third President of the United States. Apparently, Justice Ginsburg and three other dissenting Justices agreed that the wounds inflicted by the Courts' decision may indeed be long lasting. As Eben Moglen, a professor of law and legal history at Columbia University Law School, wrote in a 1/4/2001 MSNBC editorial piece:

"By mid-spring their game of politics will be going on just as before, though perhaps more nastily. But for the Supreme Court — which has been terribly disserved by the Justices who should protect and defend it — the damage will last long. Rarely in its history has the Supreme Court put itself so flagrantly in the wrong, not just with partisans who disagree with the substance of its decision, but with thoughtful lawyers regardless of partisan affiliation, and with the American people as a whole."

As for George Bush, it is uncertain, perhaps even unlikely, that he won Florida's popular vote. Eventually this may come to light as private parties go back and review the state-wide balloting. While George Bush may have portrayed himself as a "conciliator" during the pre and post election, actions do speak louder than words. His refusal a few weeks ago to agree to a Florida statewide standards driven manual recount of all votes, spoke of a man who merely pressed his advantage, rather than a true statesman seeking the fairest resolution of this dispute.

The essence of Bush's legal strategy was that votes that could not be counted by a machine were in effect illegal. For the U.S. Supreme Court to implicitly defend this position is reprehensible. It goes against principles of common law and many state enacted laws including those of Florida, that provide for manual hand recounts in contested elections. Further, the U.S. Supreme Court insisted that Florida law's standard of judging ballots by the "clear intent of the voter," was too general and remanded the State Supreme Court and State of Florida to come up with a more specific standard. However, if their ruling was enforced, it would have changed the election rules after the contest and would have been be a severe violation of due process- ostensibly the principle the U.S. Supreme Court was trying to defend in their decision. The remand was also an implicit and unprecedented federal denigration of state judicial review on election matters. In addition, to remand the Florida State Supreme Court to create a more specific standard while at the same time indicating that there was insufficient time to due to so (due to safe harbor laws) was disingenuous. After all, the U.S. Supreme Court's stay of the Florida's court opinion contributed to their being insufficient time!

The U.S. Supreme Court majority conveniently forgot that George Bush had as much legal right to contest and challenge election results statewide or in individual counties as Al Gore, and that by being afforded such an opportunity, all issues of due process, after the fact, became secondary. For example, Bush may have felt that Gore's legal team was pursuing a strategy of "divide and conquer," by focusing their recount efforts on heavily Democratic districts. However, Bush could have similarly asked for recounts in districts with Republican majorities. Bush could also have accepted Al Gore's 11/14 offer to hold a state-wide revote, with mutually agreed upon standards for the recount. Perhaps the chief reason Bush failed to pursue either strategy is that he knew that the some of the poorer Democratic districts contained the greatest proportion of votes rejected by machines since those districts typically used punch card versus optical or other more reliable and accurate methods of counting. Hence, a manual recount would presumably yield more Gore than Bush votes.

This contention was bolstered by the Commission on Civil Rights 6/2001 Report on the Florida election:

"Poorer counties, particularly those with significant people of color populations were more likely to use voting systems with higher spoilage rates than more affluent counties with significant white populations. The Commission discovered a high correlation between percentage of African American precincts and percentage of spoiled ballots. Nine of the 10 counties with the highest percentage of African American voters have spoilage rates above the Florida average. Gadsden County, claiming the highest rate of spoiled ballots, also claims the highest percentage of African American voters. The black population is only 11%, but the number of rejected black ballots was 54%. Of the 10 counties with the highest percentage of white voters, only 2 counties had spoilage rates above the state's average. The total number of spoiled ballots was 180,000; for every 10% increase in Black voters, ballot rejection increased by 1.8%. Of the 100 precincts with the highest numbers of disqualified ballots, 83 of those precincts are majority-black precincts."

Yet even this unfairness was not at issue since the Florida Supreme Court in their 12/8/00 final decision required a statewide manual recount of legal undervotes as part of their remedy. In summary, in my opinion, there was no due process and/or constitutional issue that required the intervention of the U.S. Supreme Court. The motivation of the Court's majority was purely political.

Finally, it would be tragic, if as a consequence of this election, the state and federal government did not act to ensure that voting machines throughout the country are made more reliable and accurate. It is likely that hundreds of thousands of votes, even millions of votes, were made "illegal" across the country as result of "hanging chads" or other machine/counting errors. If this revelation does not spur action, what will?

"The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right."

Florida Supreme Court Ruling, Palm Beach Canvassing Board vs. Katherine Harris, November 21, 2000.

The real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people. Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard.

Florida Supreme Court Ruling, Al Gore Jr. vs. Katherine Harris, December 8, 2000.

"What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent."

Justice Ruth Ginsburg's dissenting opinion in Bush vs Gore, December 12, 2000. Underline is my own. I believe her last comments reflect not only her view on the undermining of the state courts, but also her view on the undermining of the court on which she serves- the US Supreme Court.

Finally, there are those who have even greater concerns about a Bush Presidency. Fred Kaplan, the Boston Globe's New York bureau chief and a man who wrote some of the first stories about the JFK Cuban Missile Crisis tapes, wrote in a 1/13/01 article in the Globe:

"For now, [the film] ''Thirteen Days'' holds a special pertinence for our own political situation. To those who worry that George W. Bush might not be up to the demands of the presidency, many offer the assurance that he has a lot of smart people advising him. John Kennedy had a lot of smart people advising him, too. And if he had taken their advice during the Cuban Missile Crisis, the world would have been plunged into war."

Similarly, Maureen Dowd wrote in a New York Times 1/21/01 Op-Ed piece entitled, "41 on 43's Terrible 37:"

"...The new president thinks he can simply rely on his advisers for the bottom line. But even the most trusted aides provide information in a way that puts them and their positions in the best light. A president who avoids primary information only gets the spin, not the reality. That means he can only react to the spin. And that means events shape him, not the other way around.

W. [George W. Bush] has shown he can grow and change. It's still early enough for him to learn that some things can't be staffed out. Like the presidency."