Our Tower of Babel

In Genesis, we learn of the construction of a Tower of Babel, by Noah’s descendants, to reach to the heavens in Shinar in Babylon.  A testimony to greatness and power.  This arrogance drew God’s ire and the people of Shinar (who previously spoke the same language) were scattered by the curse of tongues and the Tower was never completed. 

We may not be trying to build a Tower of Babel, but we are steaming towards a modern Babel deconstructing the legal institutions we hold dear.  We have effectively lost the ability to talk to each other.  Some of this is due to an inability to agree on basic values about our justice system.  This “babel” of values is all around us.

This starts with one of our most fundamental rights – voting.  Claims of fraud have been used by partisans to complicate voting, polling places have been shuttered or moved to make it more difficult for certain voting demographics to exercise their civic rights, and gerrymandering have resulted in voting districts drawn to maximize partisan gains.  This is an old refrain from much darker times in our country.

Florida was a mess in 2000.  We nearly had a constitutional implosion because of the inability to count the votes.  Thankfully, Al Gore was gracious in accepting the United States Supreme Court’s decision to halt the counting.  In the wake of that national embarrassment, Florida revamped its voting processes to set some clear rules and deadlines towards when the election results must be reported.  There is an automatic machine recount triggered by a 0.5% spread between candidates and an automatic manual recount triggered by a 0.25% spread.

Florida is a mess in 2018.  The race for Governor now has about a 0.4% spread and its only about 0.15% in the Senate race.  And … the current Governor, Rick Scott, is running around accusing his opponent of voter fraud.  He has proof you know, secret proof, the type of proof his Florida Department of Law Enforcement cannot find or is not included in court briefs filed on his behalf.  The type of proof that judges are saying is invisible. 

Gov. Scott says he’s the winner despite the fact that not all ballots have been counted – principally provisional, military, and mail-in ballots.  Provisional ballots are registered voters who, for one reason or another, showed up at the polls and were not allowed to formally vote.  This does not mean they are ineligible to vote.  Military ballots can be mailed in, so long as they are post-marked the day of the election and spend days winding their way to Florida (obviously, a state with a heavy military constituency). 

Finally, there are mail-in ballots (Florida has a very liberal process), which have to be mailed in 6 days before the election and received no later than the day of the election.  These are a legal Maginot line for both sides because Florida has adopted a “signature-match” law requiring that the signature on a mail-in ballot match the voter signature registration.  There are no rules about the methodology for matching these signatures.  The decision is made by elections’ officials.

Given all of this, it is unsurprising Florida is slow to certify its election results.  Votes are going to still need to be counted.  This is not fraud, it is just the methodical stepchild that is the lattice of democracy.  Yet, while one side screams all votes should be counted, the other side is wailing about the boogy man of fraud.  No common ground, no willingness to acknowledge the legitimacy of an opponents argument.  It is as if these events are happening in two different countries, with two different values, and two different languages.

This is not an outlier.  Just a few weeks ago, we had a similar stand-off, in a different context, concerning the confirmation hearings of Justice Brett Kavanaugh.  Again, we had stares and verbal Molotov cocktails lobbed across battle lines. One side wanted a thorough investigation and grumbled about being politically steam-rolled; the other were aghast at the “false” personal teenage attacks made against the Justice.  Again, there was no willingness to find honor in each other’s perspective.  Everything is war, no quarter may be countenanced, collegial conversation a weakness.

Added to this toxic mix of purely political combat are the grinding attacks on our institutions.  Take the FBI.  It either shielded Hillary Clinton (if you believe she should have been locked up) or cost her the election (if you believe James Comey’s October bombshell about reopening the email investigation to comb through Anthony Weiner’s laptop torpedoed her chances). 

The Mueller investigation is either a political witch-hunt to undo an election or it is a patriotic attempt to protect us from shady foreign influence.  No compromise, no prisoners.

The Southern District’s U.S. Attorney’s Office investigation into the financial muzzling of President Trump’s alleged mistresses is either a serious investigation about possible election fraud or much ado about nothing.  The President’s former attorney, Michael Cohen, is either a reformed hero or another sleazy attorney trying to save his hide.  No middle ground, no ability to have a conversation.

We can no longer talk to each other.  We cannot agree on basic facts from which to have intelligent conversations.  We are scattered to the wind from our Tower of Babel, our Constitution, about which we are so prideful and certain of our unique place in the world.  Everything that formed our common understanding of what it means to be an American and what has bound us together in this noble experiment falls away as we babel at each other in languages that are indistinct and incomprehensible. 

Maybe we all need to take a step back and stop hurling insults at each other and remember what has bound us together as a people.  If we do not, we will never complete our Tower and our nation will be shattered.  Shinar was destroyed by its pride, will we?

 

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.