-Caveat Lector-
12/13/00 12:10 p.m.
Constitutional Crash Landing
No one said it would be pretty.
By Richard A. Epstein, professor at the University of Chicago
School of Law
National Review
No one said that the end � for it is the end � of the
interminable electoral dispute between Al Gore and George Bush
would be pretty. And like everything else in this sorry affair,
it turns out to have been ugly.
Pundits everywhere had hoped that this case could end with a
unified showing in the United States Supreme Court so as to
preserve its legitimacy and to promote that of the winner of the
election, now George Bush. Instead we got a literal potpourri of
decisions that can only confuse an electorate that has grown
weary of this political circus, and only dismay academics who
wished in a sense for something better.
As a political matter, the proper response should not be
criticism of the arguments contained in the various opinions, but
relief that the entire matter has come to its inglorious end.
But this law professor has no special read of the pulse of
nation, so he will revert to type and give an instant analysis of
the legal arguments made in the case.
Up first is the five-vote conservative majority that brought the
entire proceedings to an end by invoking the proposition that the
erratic conduct of the recount, without any discernible guidance
from the Florida supreme court, counted as a violation of the
equal protection clause of the United State Constitution. In one
sense this result is odd, to say the least, because it is hard to
identify which individuals were prejudiced by the errors, and
which were not.
This is not a case like the equal-protection voting rights cases
that led to the "one man, one vote" disputes of the 1960s.
There it was clear that folks in rural counties had far greater
clout in the state legislators because their small districts had
equal power with the larger districts carved out for urban
voters. The argument there was, quite simply, if it takes 10,000
votes to elect a legislator in the rural areas and 100,000 votes
to elect a legislator in the urban areas, then the dilution of
the urban votes leads to a systematic distortion of the electoral
process that places excessive political power in the hands of a
small minority. No political solution is possible because the
ill-constituted legislature has no incentive to reform itself.
Our situation is quite different because here the individuals who
did not punch through the chads did not need reapportionment to
participate in the election. They just had to read the
instructions contained on their ballots.
At various points, the five-member majority also hinted that
these erratic procedures could count also as a violation of
due-process guarantees. But once again they engaged in elliptical
constitutional interpretation. The due-process clause provides
that no state shall deprive any person of life, liberty or
property, without due process of law. The vote therefore has to
be regarded as a form of liberty or property, which is a nice
interpretive question of its own. But even if it is, the case
founders on the same problem as before in that it is not possible
to find any systematic deprivation of that right by the state. No
person was excluded from the polls. None had his ballot rejected
for improper reasons. The voter who does not punch through only
has himself to blame. The arbitrariness of the recount procedure
is not easily tied to some violation of an individual right.
The case in my view goes a lot better as a structural case, one
which holds that the odd interpretations of Florida law by the
Florida supreme court were so far off the mark that they counted
as judicial legislation. Once that is established, then the
constitutional violation is easier to make out. Electors are to
be chosen in the manner designated by the state legislature, and
not by a Jerry-built procedure created by a state supreme court
that make things up on the fly.
Justice Ginsburg in her dissent strongly disputed the charge that
the Florida court engaged in lawless acts of judicial
legislation. She noted that although she might agree with their
interpretation, they fell within some established zone of
reasonableness. In making that analysis, she confined her
attention solely to the issues in dispute in the second Florida
court opinion: what counts as a "legal ballot," what is meant by
"rejection." In her view, the Florida court was within reason
when it said that "the rejection of a legal vote" means a failure
to count dimples that express a voter's intention, even though it
looks from the statute far more plausible to assume that it meant
what was said: the refusal to allow people eligible to vote to
cast their ballots.
But it is not just that last element in the case that provokes
consternation with the performance of the four-member majority in
Florida. Rather, the entire process suggests that the Florida
court really did go off the rails in ways that lend a lot of
strength to the concurrence written by Chief Justice Rehnquist,
which Justice Scalia confirmed.
In a nutshell the difficulties began with the question of who
controls the recount process. Here the right answer is that, for
the first week, control rests in the canvassing boards. But what
counts as a recount? It was at this point that the case first
went off the rails. The right interpretation of that conception
is that one looks at the ballots by hand to see if they were
correctly read by the machine. By that standard light has to
shine through the ballot so that the dimples are out as a matter
of law. That said, it becomes easy to complete the recount in
time, and the outcome does not change from Bush to Gore. But
once the Gore people started to pressure the local canvassing
officials to broaden the purpose of the recount, then we were off
to the races. Now it takes a long time to decide whether dimples
count, and if so which ones.
The arbitrariness of the process thus became built-in at the
ground floor.
The secretary of state, Katherine Harris tried to use her
discretion to stop this exercise, but was rebuffed by the Florida
supreme court which extended the recount process and authorized a
use of some expansive standard of what counts as a legal vote.
But it did not say what that standard was. One oddity of the
equal protection argument is that the Florida supreme court could
have pulled off its electoral coup if it had said, flat out, that
"all dimples count" � for now there is a uniform standard
throughout Florida that skirts the equal-protection problem, even
if it represents a radical shift in the rules of the game after
the race has been won. When its maneuvers got slapped down the
first time in the Supreme Court, the case then went into the
contest phase (that is the legal proceedings after the
certification). It was here that it became evident, at least to
this observer, that the four-member majority of the Florida
supreme court overstepped its boundaries.
A contest is a trial at which sides have to present evidence in
accordance with law. But what the Florida supreme court ordered
was a continuation of the recount under the guise of a contest
resolution. In so doing it, it refused to give the Bush forces
any chance to challenge the broad definition of a vote that was
used in Broward County and, to a lesser extent, in Palm Beach
County.
It is impossible to say that we have a trial from scratch and
then to turn around and to hold without any hearing at all that
one side's case need never be heard. Worse still, the Florida
majority then ordered recounts everywhere else. There was no
hint of recognition that the contest phase of an election dispute
requires more than a recount: the folks who collect this
information have to become fact witnesses, subject to
cross-examination and the like. By putting the issue in this
fashion, the Florida supreme court, in effect, confused protests
with contests, and eliminated the contest phase altogether.
And by appointing Judge Terry Lewis to oversee what was in
essence the continuation of the recount, it in effect usurped the
function of the secretary of state and short-circuited its own
contest rules. That strikes me as a pretty substantial deviation
from the legal norm. The Article II arguments look therefore
stronger than the equal protection arguments. If they are
correct, the proper remedy was not to continue the stay, which
allows this case to end in a kind of judicial limbo. It should
have been to certify the second machine count, ensuring that the
entire Florida procedure received the decent burial it deserved.
=================================================================
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
