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FEATURE STORY
| February 5, 2001
None Dare Call It Treason
by Vincent Bugliosi
FOOTNOTES
1. A total of 3,718,305 votes were cast in the Florida election under the Votomatic punch-card system, and 2,353,811 votes were cast under the optical-scan system. The percentage of votes not picked up using the punch-card system was 3.92 percent, the rate under the more modern optical-scan system being only 1.43 percent. Put in other terms, for every 10,000 votes cast, the punch-card system resulted in 250 more nonvotes than the optical-scan system. Siegel v. LePore, No. 00-15981. See also Ford Fessenden, "No-Vote Rates Higher in Punch-Card Counts," New York Times, December 1.
2. The ruling was so bad that it was very difficult to find even conservative legal scholars who supported it, and when the few who attempted to do so stepped up to the plate, their observations were simply pathetic. University of California, Berkeley, law professor John Yoo, a former law clerk for Thomas, wrote that "we should balance the short-term hit to the court's legitimacy with whether...it was in the best interest of the country to end the electoral crisis." Translation: If an election is close, it's better for the Supreme Court to pick the President, whether or not he won the election, than to have the dispute resolved in the manner prescribed by law. Pepperdine Law School's Douglas Kmiec unbelievably wrote that "the ruling of the US Supreme Court was not along partisan or ideological lines," and that its ruling "protected our cherished democratic tradition with a soundly reasoned, per curiam voice of restraint." I won't dignify this with a translation.
3. Actually, not a recount since the Votomatic machines, for whatever reason, never did detect the votes on these particular ballots. The manual count would be examining these ballots for the first time to see if, as provided for under § 101.5614(5) of the Florida Election Code, there was a "clear indication of the intent of the voter." One example: The stylus punches a clear hole in the paper ballot, but the chad is still attached (hanging) by one or more of its four sides. In that situation the Votomatic machine frequently does not detect the vote, though the intent of the voter could not be any clearer.
4. Earlier in the day, the conservative-leaning US Court of Appeals for the Eleventh Circuit in Atlanta voted 8 to 4 to deny Bush's companion attempt to have that court stop the recount.
5. In fact, L. Kinvin Wroth, dean of the Vermont Law School and an expert on the Electoral College, said that "a recount could have gone on right up to the last day of Congress' joint session" on January 6, when the votes of the College were counted in Congress.
6. And this, mind you, in an election in which Bush was leading in Florida by only a few hundred votes while losing the popular vote nationwide to Gore by, at last count, 539,000 votes.
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