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Editor's Column

Bush v Gore Redux: The votes are in
by Thomas Van Flein

The response to the poll regarding the decision in Bush v. Gore was more than we expected. There were more attorneys who voted in this poll (56) than there were attorneys who participated in the Florida election litigation-but not by much. The Bar Rag Election Committee met several times to count the votes and clear up confusion regarding smudged ballots (faxed ballots) or other voting deficiencies. The general rule adopted by the Election Committee was to count the questioned ballot in the same manner the committee person would have voted.

On March 5, 2001, the Bar Rag Statistician certified the poll as accurate, fair and 100 percent representative of the entire bar. It should be noted that the Bar Rag Statistician was fired from his previous job with the Census Bureau, but his project fee is within the Bar Rag budget (he works fairly cheaply: two dozen donuts, a six pack of beer and occasionally we have to pay for his parking tickets). Here are the poll results:

  • 83% of Alaska lawyers believe that the Supreme Court harmed its public perception; 17% do not share that belief.
  • 14% of Alaska lawyers believe that the Bush v. Gore decision was decided correctly for the reasons set forth in the opinion;
  • 2% of Alaska lawyers believe that the Bush v. Gore decision was decided correctly for the result only, not the reasoning;
  • 18% of Alaska lawyers believe that the Bush v. Gore decision was decided incorrectly as a matter of constitutional law;
  • 66% of Alaska lawyers believe that the Bush v. Gore decision was decided incorrectly as a result of unfortunate political partisanship.

The best part of the poll were the comments that accompanied the votes. Some questioned the use of faxed ballots or e-mails since it prevented a secret ballot. For the record, for those who voted, we made a notation in your permanent record regarding our opinion of your opinion. Others proudly wrote their name and address on their ballot. Others sent faxes without any fax header identifying the fax number or sender-pretty tricky. We will find out who you are soon enough.

Pam Finley remarked that she had "spent the last quarter of a century insisting to my friends that judicial decisions really were based on principles...now I feel like a fool."

Mitchel Schapira wrote that he read all the pleadings involved in Bush v. Gore and noted that "the damage to the Supreme Court is horrific. Many idealistic young lawyers must have seen for the first time that decisions are not based upon rules, or law, or even common sense...The [Bush v. Gore] decision did to lawyers what Watergate did to the once noble profession of public service." We particularly enjoyed Mr. Schapira's invitation for more public debate, and his statement that he is "prepared to debate the issue with anyone who thinks that the election was not stolen from the rightful winner."

One person who requests anonymity said that the "poll really reeks of partisanship. What I really want to say is 'Gore lost, Bush won, get over it!' Where exactly is the outcry regarding the 'politicization' of the Court when it, through its liberal majority, issues decisions regarding such things as partial birth abortion?"

One voter failed to fill out the ballot but wrote, "It's the U.S. Supreme Court. They win. It's over. Get over it!!!" Since that ballot was left blank, the Election Committee counted that as a vote against the decision. One voter drew pictures of dimpled, pregnant and hanging chads, and then wrote in "Pat Buchanan" and "Pat Sajak." The Election Committee concluded that this vote probably came from Fairbanks.

Another voter asked the following: "How many times can I vote? Who is going to count these ballots? Is there a sunshine law? If so, why have we had two solid months of cloudy weather?" That was obviously a Juneau voter. Another voter commented that "38 out of 40 first graders understood the 'Butterfly Ballot.'"

Former Bar Rag Editor Peter Maassen wrote that he thought the "column was great." He just wants his old job back...and

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