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James M. Redwine

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A Legal Revolution

November 13, 2020 by Jim Leave a Comment


Alexis de Tocqueville (1805-1859) was a Frenchman who studied American society during a nine-month tour in 1831 when the United States were still simmering with vitriolic political animus from the 1824 and 1828 elections between John Quincy Adams and Andrew Jackson. Adams was elected by the House of Representatives in 1824 and Jackson won via the Electoral College in 1828. After neither election did the United States fall into chaos, even though Jackson won both the popular vote and a plurality, but not a majority, of the Electoral College vote yet Adams grabbed the presidency in 1824.

Four men ran for president in 1824, John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford. Because the Electoral College vote was split in such a way that none of the four received a majority, as required to be elected President, under the Twelfth Amendment to the U.S. Constitution a “contingent” election was held in the House of Representatives. Each state’s delegation was given one vote and Adams was elected. Jackson and his supporters alleged that Adams and Clay had entered into a “Corrupt Bargain” to shift Clay’s votes to Adams. Regardless, Adams was elected by the House and the country moved on until 1828 when Jackson ran against Adams again.

In his treatise on American democracy de Tocqueville defined America’s presidential election as “a revolution at law” and described it as follows:

“Every four years, long before the appointed (presidential election) day arrives, the election becomes the greatest, and one might say the only, affair occupying men’s minds…. As the election draws near intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.… The whole nation gets into a feverish state.”

De Tocqueville’s ultimate verdict on America’s democracy was encapsulated in his general verdict on how political controversies were ultimately resolved. His observation was that:

“In America there is hardly a political question which does not sooner or later turn into a judicial one.”

De Tocqueville’s opinion was that the American manner of resolving political issues without bloodshed worked because, unlike European monarchies, the United States citizens respected the law and they did so because they had the right to both create it and change it. Since we get to choose our legislators who write our election laws and because we can change the laws by changing whom we elect if we are unhappy, we accept the laws as written including who is ultimately declared the winner of a current election.

The laws we have the right to create and the right to change include filing for an elected office, running for that office, who counts the votes, how they are counted, as well as how and when someone can legally contest an election. That legal procedure applies to all facets of an election cycle. Each state’s legislature has the authority to establish its own procedures in this regard as long as they do not violate federal law.

As an Indiana Circuit Court Judge I was involved in a recount of a congressional race, a county clerk general election, a county council general election, a town council election and a county council primary election. The Indiana legislature had enacted and published a clear statutory procedure for each type of election contest, including what role each public official should play in any recount. The statutes demanded total openness and media access to ensure the public could have confidence that if all involved followed the law a clear winner would be fairly determined. There were time limits, controls and transparency. After a recount result was certified in each contest life moved on and the eventual losers and their supporters accepted the results because they had had their “day in court”; that is, democratically enacted law was followed not the arbitrary or partisan activity of individuals.

De Tocqueville compared America’s hotly contested democratic elections to a surging river that strains at its banks with raging waters then calms down and carries on peacefully once the results have been properly certified. From my own experience with several elections and after the recounts of some of them, I agree with de Tocqueville’s analogy.

That is not to say I am for or against any type of recount for any office. I absolutely have no position on whether any candidate for any office should concede or contest anything. My position is simply that as long as the law is properly followed our democracy can handle either circumstance.

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Filed Under: America, Circuit Court, Democracy, Elections, Gavel Gamut, Indiana, Judicial, Law, Presidential Campaign Tagged With: Alexis de Tocqueville, Andrew Jackson, Corrupt Bargain, day in court, election recount, electoral college, Henry Clay, House of Representatives, Indiana Circuit Court Judge, James M. Redwine, Jim Redwine, John Quincy Adams, legal revolution, political controversies, presidential election, respect the law, United States, vitriolic political animus, William Crawford

Football vs. Politics

November 6, 2020 by Jim Leave a Comment

Democracy is messy but usually bloodless. Football is sweaty and sometimes painful. Football teams choose representative colors such as black and orange or cream and crimson. American politics are red versus blue. Football teams are led by coaches and financed by taxpayers or fat cats. Political parties are led by politicians and financed by drips and drabs via the internet or fat cats. Football teams have a few stars supported by several Sherpas. I was happy to be one of the Sherpas on the Pawhuska, Oklahoma high school Huskies football team a while ago and enjoyed every minute of it, except for wind sprints of course. I am still enjoying supporting the Huskies team which is undefeated and on their way to what I hope will be Pawhuska’s first state championship in football.

Political parties have a few stars supported by, usually, faceless minions. Football teams have one mission, to win, whoever the opponent is. Political parties believe their mission is to provide better government than competing political parties would provide. I will leave it up to you, Gentle Reader, if you believe any political party manages to achieve this goal.

Both football teams and political parties are governed by rules of procedure and conduct. With football teams a conference sets the standards and with political parties governments from the local level on up to the top have a hand in determining policy and ultimate victory. Football games are controlled by officials on the field who can enforce the rules. Their rulings are immediate and not subject to appeal but some can be reviewed. Albeit the final ruling, in effect, is made by the same people who made the initial one. Political races are governed by laws and can be subject to recount, review, repeal and reversal. Football fans sometimes must just grimace and bear a referee’s egregious error, such as giving one team an extra down as in the 1990 Colorado v. Missouri game. Of course, the problem with any attempted remedy in football is it would be impossible to completely and fairly recreate the original game circumstance. On the other hand there is the benefit that, other than endless conversations over beer, the calls at football games are final. But political races such as Bush v. Gore in 2000 may end up in the U.S. Supreme Court and may never be universally accepted as final.

As for me, I am currently marveling how my alma mater, Indiana University, can be undefeated in football after many years of wandering in the football wilderness. This column was written before Michigan v. I.U. upcoming on November 7, 2020, so I am hopeful it remains valid when you read this. And I am chagrined that Oklahoma State University where I started college could have lost to Texas last Saturday. I want a recount! I know I personally saw several blown calls that might have changed the score of the Cowboy game.

Regardless, what I have decided after suffering through the entire 2020 political season and cheering (or moaning) my way along the football season is that the temporary pains that I experienced playing football pale in the excruciation caused by the clanging brass of competing political parties and noxious news anchors. I am thankful for football and am past caring about the motes in the eyes of those who do not see eye to eye with me on politics.

 

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Filed Under: America, Democracy, Elections, Football, Gavel Gamut, Indiana University, Oklahoma, Oklahoma State University, Pawhuska, Presidential Campaign Tagged With: 2020 political season, black and orange, Bush v. Gore, cream and crimson, democracy, football, football season, Gentle Reader, high school Huskies football team, Indiana University, James M. Redwine, Jim Redwine, noxious news anchors, Oklahoma, Oklahoma State University, Pawhuska, politics, red versus blue, Sherpas, U.S. Supreme Court

It Ain’t Beanbag

October 17, 2020 by Jim Leave a Comment

As described by Winston Churchill, “Democracy is the worst political system except for all the others”. And as we suffer through our ongoing political pandemic and naively hope for a November 03 cure the political sausage making gives evidence of Churchill’s observation. On the other hand, if we step back from the splattering mud, we might find some passing amusement in the process. Of course, that is only if we personally or people we care about are not running for office.

The first political campaign I cared about involved the presidential race between Lyndon Johnson and Barry Goldwater in 1964. As I was active military at the time I was quite interested in each candidate’s position on the “police action” in Vietnam. Also, 1964 was my first chance to vote as I had just turned 21 and the 26th Amendment lowering the voting age to 18 was not ratified until 1971. You may recall, if you lived through the ’60’s, or you may have seen old black and white TV images of that famous political advertisement run against Goldwater showing a little girl plucking a daisy as a mushroom cloud rose in front of her. Well, I saw it in 1964 and heard Johnson promise not to send “American boys to die in an Asian war”. As I was one of those American boys, that sounded good to me so I voted for Johnson. That was my first lesson in political reality.

1964 temporarily cured my faith in voting but I relapsed in 1972 when as a young lawyer I decided to save the criminal justice system by supporting a friend of mine in his bid to be elected county prosecutor. Another idealistic attorney friend of mine and I dove head first into election day politics. We stayed up all night making political signs then at o’dark-thirty started putting them up at polling places. We were involved. We felt virtuous.

Then we pulled into a large precinct where many people were lined up to vote. As we each grabbed a sign with our champion’s name on it and jumped out of my old Ford sedan a large woman hustled up to us and asked if we had been sent by “Headquarters”? Neither of us knew what a political party’s headquarters was so we stared at her blankly as she loudly proclaimed, “Well, you better get some ‘supplies’ out here as these people ain’t voting right!” We headed home.

No, democracy is not perfect but it is not all bad and you have to admit it is often interesting. Peg and I still vote every time we have the opportunity even though we are aware our government is staffed with humans, not Plato’s recommended Philosopher Kings. Do we sometimes get disappointed by our choices; certainly.  Do we get discouraged; yeah. Do we want any other political system; nope!

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Filed Under: America, Democracy, Elections, Gavel Gamut, Presidential Campaign Tagged With: 1964, 26th Amendment, Barry Goldwater, democracy, James M. Redwine, Jim Redwine, Lyndon Johnson, Philosopher Kings, Plato, police action, political campaign, political system, promises not to send American boys to die in an Asian war, Vietnam, voting, Winston Churchill

Locking Horns

October 4, 2020 by Jim Leave a Comment

One day I met up with my friend Tim “Turtle” Smith in the parking lot of a golf course. “Hey, come look at what I found yesterday when I was out deer hunting.” I looked in the bed of Turtle’s pickup and saw two sets of deer antlers intertwined. Tim said, “I cut these off the heads of two dead stags. They must have starved to death after their battle for which one would gain the prize doe. I guess it is a metaphor for the old saying, ‘Don’t lose your head over.…’ ” Tim is kind of a colloquial philosopher. We do not know what other stag defaulted to winning the mythical doe, but surely a wiser one was lying in wait.

For some reason my encounter with Turtle came to mind after observing the Presidential Debacle last Tuesday evening. If the goal of a leader is to have his or her constituents adopt and follow a particular vision, when it comes to debating, the leader may want to concentrate on setting out elements of the vision and not fall into the quagmire of ad hominem. President Trump and Former Vice President Biden surely both have a vision for America but they both kept their visions well disguised Tuesday.

Usually in a debate someone is declared the winner. However, in the Presidential Debacle of 29 September 2020 there was no winner but there were three losers: President Trump, Former Vice President Biden and the electorate. We learned what we already knew; the candidates hate one another and the national news media loves only itself. Where was what Socrates called for over two thousand years ago when he cautioned, “The unexamined life is not worth living”? And Joseph Campbell’s only unforgiveable sin, that is “to be unaware”, was committed by both candidates and the moderator repeatedly.

If Americans are the prize and leadership is the goal, I suggest our presidential candidates each eschew both mudslinging and mud wrestling and spend their time and ours setting forth their plans for our future and explaining cogently how their plan is superior to their opponent’s. We can decide for ourselves if we like a candidate. What we need is knowledge about which aspiring leader is truly inspiring and not merely exasperating. Of course, if Donnie and Joey continue to act like scuffling school boys, perhaps we will see both of their denouements via the ballot box and a contested election. Then someone else may end up with the prize as declared by a handful of unelected judges.

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Filed Under: America, Elections, Gavel Gamut, Presidential Campaign Tagged With: America, contested election, debating, electorate, Former Vice President Biden, handful of unelected judges, James M. Redwine, Jim Redwine, Joseph Campbell, Locking Horns, mud wrestling, mudslinging, President Trump, Presidential Debacle, scuffling school boys, Socrates, Tim "Turtle" Smith

The National Inquirers

September 26, 2020 by Jim Leave a Comment

Investigative journalism that uncovers and publicizes official corruption has an American tradition going back to John Peter Zenger who was born in Germany in 1697 and died in New York in 1746. Zenger was a printer who wrote exposé articles about our English cousins’ ham-fisted governance of New York, especially by the Royal Governor William Cosby. Cosby took umbrage at these early efforts to inform Americans about government malfeasance. Cosby had Zenger charged with libel but in 1735 a jury refused to convict Zenger because the jury determined that what Zenger wrote about Cosby was the truth. What Zenger printed about Cosby related directly and only to Cosby’s actions as governor. Cosby’s personal life was not in issue. Such subjects as the state of his laundry or personal habits were not material to Cosby’s official actions. There was no “need to know” any salacious scatology.

The First Amendment is our best protection from bad government but it should not be cited in support of mere muckraking. Gossip is fun, if it is about others, but it is not germane to curing our body politic of corruption or bad decisions. And a bipartisan cooperation on matters of national importance would be most welcome. We have certainly been blessed many times before with such attitudes. For example, Republican President William Howard Taft appointed Republican Henry L. Stimson (1867-1950) as Secretary of war (now Secretary of Defense) in 1911-1913. Then later two Democratic presidents, Franklin D. Roosevelt and Harry Truman, appointed Stimson for the same position (1940-1945). Stimson had the experience and knowledge America needed. His political party affiliation was irrelevant to understanding and meeting the threats to our country from Japan and Germany.

But even though Stimson was not naïve about foreign designs on American assets he famously eschewed delving into personal matters. Stimson’s most famous quote relates to secret Japanese dispatches. Stimson explained trust cannot be established by distrust. He succinctly posited: “Gentlemen do not read one another’s mail.”

As story after story and book after book come out about Joe Biden and Kamala Harris and Donald Trump and Mike Pence the muckraking inundates the investigative journalism. We do need to know our politicians’ philosophies, positions and past performances. But such information is sometimes obfuscated by “revelations” about their personal lives and peccadilloes.

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Filed Under: America, Elections, Gavel Gamut, News Media, Presidential Campaign Tagged With: Donald Trump, First Amendment, Franklin D. Roosevelt, gossip, Governor William Cosby, Harry Truman, Henry L. Stimson, investigative journalism, James M. Redwine, Jim Redwine, Joe Biden, John Peter Zenger, Kamala Harris, Mike Pence, muckraking, National Inquirers, Secretary of War, William Howard Taft

The Right To Matter

February 29, 2020 by Jim Leave a Comment

From www.270towin.com

It was not the British Parliament’s tax on tea that caused the Boston Tea Party on December 16, 1773; it was the denial of the Colonists’ right to be represented in Parliament.

It is not the sexual part of unwanted sex that matters to the Me Too Movement, we Homo sapiens have spent the last 200 to 300 thousand years engaging in sex; it is the “unwanted” factor that is objectionable.

And when our Founders were barely able to cobble together our Republic it was not the fact that some of the Thirteen Colonies had much greater populations than others or much greater wealth than others that almost caused the United States to be simply thirteen entirely separate entities; it was the fear by both the more populous and less populous colonies that their voices would not sufficiently matter.

There were many reasons why and how our constitutional democracy survived colliding circumstances, desires and egos but two of the most significant compromises were the Proportional Representative construct and the Electoral College.

Large states accepted the compromise that in the Senate each state would have two and only two Senators because their proportional influence was recognized by having the number of Congressional Representatives determined by population. Smaller states accepted this arrangement in like manner because they would have an equal voice in at least one of the two Congressional bodies, the Senate, even though they would have fewer Congresspersons than larger states.

Then there is the imaginative system of the Electoral College. The Electoral College determines who will be the Executive Branch leaders, the President and Vice President, via a method similar to the proportional representative system. And because the President has the authority to nominate all federal judges, whoever has influence over the election of the President has an indirect voice in the makeup of the third branch of our federal government, the Judicial Branch. Therefore, the Electoral College, whose only job is to meet every four years and vote for the Chief Executive and the Vice President, has some influence over two of the three Branches of our government. Of course, the Executive Branch contains the armed forces, the F.B.I., the D.E.A., etc., etc., etc. And these countless agencies assert immense power over all of us. We certainly want our opinions to matter when it comes to all those aspects of our government.

The number of Electors of the Electoral College is determined by totaling the number of Congressional Representatives each state has and each state’s two senators. The number of Congressional Representatives is derived from each state’s population. So, very similar to the general system of representative/proportional government, where all states have two and only two senators but have differing numbers of Congresspersons based on population, the Electoral College is based on every state having some Electors but more populous states having more Electors than less populous states.

Currently there are 538 members of the Electoral College based on 100 Senators and 438 Congressional Representatives. For example, Indiana has 2 Senators and 9 Congresspersons for a total of 11 Electors and Oklahoma has 2 Senators and 5 Congresspersons for a total of 7 Electors. On the other hand, California has 2 Senators and 53 Congresspersons for a total of 55 Electors. Indiana’s sister state of Illinois has 20 Electors, almost twice as many as Indiana, and Oklahoma’s sister state of Texas has 38, over five times as many as Oklahoma. The District of Columbia has no Senators but does have 3 Electors based on the 23rd Amendment to the Constitution. Three is the least number of Electors of any state. The U.S. Territories do not receive any Electors.

Whichever candidate receives 270 Electoral votes, the current majority of Electors, is elected President. Sometimes the candidate who receives the most popular votes does not receive a majority of the Electoral votes. This always reignites a debate to eliminate the Electoral College and go to a pure one person/one vote system. Such was the case in 2016 when the Democrat nominee Hillary Clinton received 3,000,000 more popular votes than the Republican nominee Donald Trump, but Trump received 304 Electoral votes, which was 77 more than Clinton received. Had this outcome been inverted I suggest the pro/anti-Electoral College debate would have also been inverted.

There certainly are legitimate arguments for modifying or even eliminating the Electoral College system even though the College has helped to assuage the constant yin and yang of large states versus small ones. As for me, having spent most of my life, so far, in either Oklahoma or Indiana, I do not wish to rely upon the tender mercies of the few lumbering giant states with huge populations of voters that might deign to turn a deaf ear to my concerns and those of the other residents of the numerous less populous states.

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Filed Under: America, Democracy, Elections, Gavel Gamut, Indiana, Oklahoma, Presidential Campaign Tagged With: armed forces, Boston Tea Party, British Parliament, Colonist, congressional representatives, congresspersons, D.E.A., debate to eliminate the Electoral College system, democracy, Donald Trump, electoral college, executive branch, F.B.I., federal judges, Founders, Hillary Clinton, Illinois, Indiana, James M. Redwine, Jim Redwine, judicial branch, large states, majority of electoral votes, Me Too Movement, Oklahoma, president, proportional representative construct, Republic, senators, small states, tax on tea, Texas, third branch of government, Thirteen Colonies, Vice President

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© 2020 James M. Redwine

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