--- Begin Message ---
Eugene Register-Guard
December 17, 2001
Scalia's falsehoods tainted election
By EDWARD T. MONKS
DEC. 9 MARKED THE first anniversary of the U.S. Supreme Court's stay
preventing the recount ordered by the Florida Supreme Court in the 2000
presidential election. In his opinion accompanying the stay, Associate
Justice Antonin Scalia discussed the Florida court's order that votes be
counted if there is a "clear indication of the intent of the voter":
"If petitioner [George W. Bush] is correct that counting in this fashion is
unlawful, permitting the count to proceed on that erroneous basis will
prevent an accurate recount from being conducted on a proper basis later,
since it is generally agreed that each manual recount produces a degradation
of the ballots, which renders a subsequent recount inaccurate."
Because I had read a Wall Street Journal article (Nov. 22, 2000) describing
various tests that revealed that it is extremely unlikely to accidentally
dislodge a chad, and because that finding was consistent with my experience,
I was struck by Scalia's assertion of there being general agreement about
degradation of the ballot. I decided to do some further checking.
Almost a year ago, I obtained from the Lane County elections office several
"demonstrator" ballots made by Sequoia Pacific Voting Equipment Inc., the
manufacturer of punchcard ballots used in Florida. Virtually all punchcard
ballots used in the United States are made to the same specifications by a
small group of manufacturers. The demonstrator ballots worked their way into
a file and remained there until Dec. 6, slightly curved from being tucked
away in a corner of my desk drawer.
First, I sought a high spot from which to drop the cards, since the chief
Republican argument during the post-election fracas was that chad could be
dislodged if a ballot were dropped to the floor. I went to the first parking
level of the Overpark on 10th Avenue and Oak Street in Eugene, stood at the
edge and dropped two ballots more than 15 feet to the concrete below.
Before the drop, I had partially dislodged a chad on one ballot so that it
was attached by only two of the four corners. In short, I created a hanging
chad. The other ballot was not disturbed in any way.
The experiment was repeated at the second parking level, the third, the
fourth and the fifth (from a height of approximately 55 feet). No chad,
including the hanging one I created, was dislodged.
Next, at the Lane Transit District terminal, the driver of the No. 51 Santa
Clara bus allowed me to place the same two ballots in front of his front
tires, and he and his 15 passengers ran over them in making the 11:30 a.m.
departure. The bus, with passengers and driver, weighed about 30,000 pounds.
Although one ballot had noticeable damage, no chad, including the one I had
disturbed, were dislodged. However, I had sloppily placed one of the ballots
on a sharp pebble, which became lodged in the ballot and had to be removed.
The pebble had caused one chad (not the one I had disturbed) to be
substantially loosened, but it was still hanging on. I guess 30,000 pounds
and a sharp pebble will do that every time.
For a final test, I went to the Willamette River and allowed the two ballots
to float under the Ferry Street Bridge. Each ballot got hung up in weeds and
blackberries. Each was in the water for more than five minutes, and due to
rough water conditions was given more of a beating than I intended. I used
my fish net, which I might add has been used for precious little else, to
retrieve both. The chad loosened by the bus and pebble had come off. All
others, including the one I disturbed, remained in place.
Having completed air, land, and naval operations against the year-old
ballots, it was clear that no one had any reasonable basis to believe that
ballots might be degraded by a manual recount - particularly a recount like
the one in Florida, where representatives of each political party and a
neutral observer overlooked the process.
Next I read the brief filed by attorneys for the Al Gore campaign. No one on
that side of the case agreed that a recount produced degradation. In fact,
one of Gore's attorneys, Peter Ruben, in response to a question I submitted
to him, said that he does not believe that a recount produces degradation.
There is, and was, no factual basis whatsoever to support Scalia's
statement. Scalia created that "fact" on his own, and created the "general
agreement" about it on his own as well.
Scalia expressed concern about doing a "proper" recount "later." That
comment is completely disingenuous. All parties acknowledged that any
recount had to be completed by Dec. 12. The order of Dec. 9 set oral
arguments on the case for 11 a.m. on Dec. 11, which meant that the earliest
the case could be decided was sometime that afternoon, which would leave no
time to accomplish a recount of any kind by Dec. 12. Scalia's profession of
concern for doing a recount "on a proper basis later" lacked even a hint of
sincerity, since everyone knew there was no time for a recount.
What Scalia's statement accomplished was to make a false assertion that
there is a general agreement about a "fact" that is not a fact, and append
that mess to an insincere expression of interest in preserving a "proper"
recount that could not possibly occur. During my 24 years as a lawyer, and
in my time in law school, I have read, in whole or in part, thousands of
legal opinions. The statement by Justice Scalia is certainly the least
honest I have ever read in any judicial context. It may be the least honest
statement ever written by any American judge - or by any judge, anywhere, at
any time.
I remember watching Scalia's confirmation hearing before the Senate
Judiciary Committee in 1986. Although I did not share his extreme right
ideology, my opinion was that he was a bright, articulate person. I thought
he might not turn out to be as bad as some of his critics were predicting,
because he seemed to have sufficient insight into himself, his makeup, and
his philosophy, coupled with a sufficient appreciation of the fact that a
judge is not appointed to use his office as a vehicle for giving effect to
his personal views and preferences.
I still think he is bright and articulate. About the rest, I was wrong.
The determined commitment of Scalia and the four other Republican justices
who voted to achieve their desired end is breathtaking to anyone who has
even a sliver of objectivity. It is that level of commitment that made a man
as bright as Scalia apparently oblivious to the fact he wrote something that
any fourth-grader with a modest knowledge of the facts could recognize as
untrue. It does not matter if Bush would have won the election anyway. The
process and the decision did not deserve public respect then, and do not
deserve it now.
Edward T. Monks is a Eugene attorney.
--- End Message ---
