-Caveat Lector-
Wall Street Journal
November 16, 2000
Commentary
Bush Has a Federal Case
By John Yoo, a professor of law at the University of California
at Berkeley's Boalt Hall School of Law.
Republicans have come in for caustic criticism, even by some
sympathetic to George W. Bush, for hastily seeking federal
interference in a core state function: that of running elections.
Such criticism is misguided.
The federal appellate court in Atlanta announced yesterday that
it would hear, on an emergency basis, the Bush campaign's lawsuit
to block hand-recounts in selected, Democratic counties in
Florida. Since the Florida Supreme Court, hours later, denied a
request by Secretary of State Katherine Harris that these manual
recounts be stopped, this federal suit would appear to represent
the Bush camp's best hope to bring an end to the recount.
Arbitrary Discretion
Even though the federal trial judge rejected Mr. Bush's claim on
the ground that the Constitution gives states substantial freedom
in counting votes, the campaign will now have the chance to
continue the argument that manual recounts give vote counters too
much arbitrary discretion.
While the Bush team here seeks to impose federal notions of
fairness on the state electoral process, Republicans generally
have sought to protect the rights of states as the primary
regulators in such areas as education, crime, welfare and family
law. By running to the federal courts, critics now allege,
Republicans are being hypocrites on federalism.
It is wrong, however, to say that principle and consistency
should force Republicans to forgo reasonable claims under federal
law, claims that courts have identified for a generation.
Federalism does not create a free-fire zone where states may do
anything that pleases them. Rather, federalism is about the
appropriate balance of power between federal and state authority,
so that neither government abuses its own power at the expense of
the rights of the people.
In the division of power between the federal and state
governments, and in the subjection of each to the separation of
powers, James Madison pointed out that "a double security arises
to the rights of the people. The different governments will
control each other; at the same time that each will be controlled
by itself."
This is nowhere truer than in the area of voting. The
Constitution accords considerable leeway to the states to manage
voting in their own way. Indeed, Article II, Section 1 of the
Constitution declares that "each State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of
Electors." Nonetheless, our constitutional system today permits
substantial federal intervention in state elections. The 14th
and 15th Amendments to the Constitution guarantee the individual
right of each citizen to vote, and prohibit states from
attempting to discriminate against protected groups by denying
them access to the voting booth. Under the 14th Amendment, for
example, Florida could not hold a manual recount by excluding all
African-American voters, or all women, or all Democrats.
Federal courts and the federal government have engaged in
sweeping interventions into state voting procedures. In
decisions such as Reynolds v. Sims, the Supreme Court
established the principle of one person, one vote, which means
that each citizen not only has the right to vote, but that each
vote must carry as much weight as every other vote. In its
recent racial "redistricting" cases, such as Shaw v. Reno, the
Supreme Court has held that states cannot use race as a primary
factor in drawing voting districts.
Congress has also waded into the game. Today, in many areas of
the South, the Voting Rights Act of 1965 prevents states from
changing any voting standard, practice or procedure without the
permission of the attorney general or a federal court in
Washington D.C. Under this mix of constitutional and statutory
law, the Supreme Court will hear claims that states have engaged
in "vote dilution," where election procedures or redistricting
give more political power to some groups than others.
So there is nothing new, or hypocritical, in seeking judicial
relief from unconstitutional state election procedures. It is
certainly not the direct threat to our federal system of
government that some Democrats have claimed, unless they believe
that federal intervention into state electoral systems violates
the basic structure of our federal system of government. Rather
than argue over whether extending federal power over Florida's
elections is constitutionally permissible -- it is -- the
question ought to be what law should apply, and how.
There are several sources of federal law that might pre-empt much
of the state legal maneuvering that is now occurring in Florida.
First, federal statutes require that the states appoint
presidential electors on the first Tuesday in November.
If a state fails to make its choice, Section 2 of Title 3 of the
U.S. Code allows the state legislature to decide how to choose
the electors. Federal law could thus override any dispute between
the Florida judiciary and executive branch over certification of
the state's presidential vote -- the essence of the Gore
campaign's suit in state court -- by throwing the question to the
state legislature. While Section 5 of Title 3 permits states to
provide for contested elections for presidential electors, it
seems that they must do so by special rules established before
the election itself. If the Florida election commission and the
state courts fail to reach agreement, the Bush campaign could
argue that federal law allows the Florida legislature to decide
on the selection of the presidential electors.
Second, Supreme Court precedent suggests that Florida may have
limited freedom to overturn the initial vote tallies by turning
to a manual vote count that produces different results. While it
is true that states have discretion to set the manner of the
state's appointment of presidential electors, electors are
federal, not state, officials chosen in a federal, not a state,
election. When states choose federal officers, the Supreme Court
said in 1995 in U.S. Term Limits v. Thornton, they have reduced
rights with regard to their method of selection.
For example, the Court rejected arguments that a state's
constitutional power to control the "times, places, and manner"
of holding congressional elections allowed it to prevent
incumbents from appearing on the ballot. This suggests that the
state's power over the manner of the selection of presidential
electors cannot go far beyond procedural matters such as when and
where an election is to be held. Once a state begins, as in
Florida, to use vote-counting procedures that give advantage to
one candidate over another, federal principles might prevail in
order to preserve the integrity of the electoral process.
Third, the Bush campaign could make a vote dilution claim under
the 14th Amendment. Such a claim would maintain that Florida's
use of hand counting in some districts, but not in others,
violates the one person, one vote principle. By using a manual
procedure, some counties are employing generous counting rules
that produce more votes than those recorded in counties that rely
on machines. This has the effect of reducing the relative weight
of votes in the counties that have not ordered a recount. The
Bush campaign could ask for the simple remedy that all counties
in a state use the same method for counting ballots in a federal
election, so that every citizen's vote has an equal chance of
being counted.
As the Florida electoral dispute continues, it appears possible
that some form of federal intervention might be necessary.
After the appellate court in Atlanta rules on the Republican
appeal, it is possible that the U.S. Supreme Court could
intervene because this case represents a question of national
public importance -- one of the Court's criteria for granting
review.
A Worse Result
But it is important to keep in mind that this is, after all, not
the first time that 100 or so votes from Florida came close to
deciding a presidential election. In the 1876 presidential
election, only 100 votes separated Rutherford Hayes and the
Democrat challenger, Samuel Tilden. Democrats chose a new
election canvassing commission, which threw the election to
Tilden and brought him within one electoral vote of Hayes.
Congress eventually had to create a special commission to review
the disputed electoral votes from rival governments in the South,
and the resulting deal that gave Hayes the presidency required
the end of Reconstruction. While the intervention of the federal
courts into politics may not be a desirable thing, it can,
perhaps, save the nation from a worse result -- a congressional
review of the validity of a state's electoral votes.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
=================================================================
<A HREF="http://www.ctrl.org/">www.ctrl.org</A>
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are unwelcomed. Substance�not soap-boxing�please! These are
sordid matters and 'conspiracy theory'�with its many half-truths, mis-
directions and outright frauds�is used politically by different groups with
major and minor effects spread throughout the spectrum of time and thought.
That being said, CTRLgives no endorsement to the validity of posts, and
always suggests to readers; be wary of what you read. CTRL gives no
credence to Holocaust denial and nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://peach.ease.lsoft.com/archives/ctrl.html
<A HREF="http://peach.ease.lsoft.com/archives/ctrl.html">Archives of
[EMAIL PROTECTED]</A>
http:[EMAIL PROTECTED]/
<A HREF="http:[EMAIL PROTECTED]/">ctrl</A>
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
