Date: Sun, 24 Dec 2000 21:18:33 -0500 From: Ofer Inbar To: [mailing list] Subject: Re: a last gasp email about the SCOTUS ruling [another mailing list subscriber], following up to the "layman's guide to the supreme court ruling", wrote: > This was really quite amusing, though I think largely contained in my > prior "does anyone else find it hysterically funny that the Court > conservatives were making an equal protection argument whereas the > liberals were making a states' rights argument?" *blink* OK, I'm confused. The "layman's guide" made a lot of points, only one of which is "contained" in your prior comments. What about, for example, the contradiction about "changing the rules": - On Dec 4, in Bush v. Palm Beach, the US Supreme Court ordered the Florida Supreme Court to confirm that they had in fact only interpreted existing law, did not make new law, and did not resort to their state constitution in making the decisions. - Having thus bullied the Florida Supreme Court into strictly adhering to existing law and precedent, the Supreme Court then ruled, on Dec 12, in Bush v. Gore, that the Florida court's failure to set uniform statewide recount standards was a problem that must be remedied. This despite the fact that Florida law *and* precedent explicitly said the standard must be the ability "to determine the intent of the voter" and no more, and had the Florida court set any more explicit standard, they would have been in violation of Bush v. Palm Beach. Or how about the contradiction inherent in using equal protection to stop a recount whose main effect would have been to remedy a much bigger equal protection problem? The poorer or more heavily populated an area is, the less likely it is to allocate funds to upgrade voting equipment. As a result of this, the poorer or more urban a voter is, the more likely they are to be using voting equipment that fails to count a much higher percentage of ballots cast. This clearly skews the election results. That is a real equal protection issue, and might be a federal issue under the 14th Amendment, were it not for the fact that the remedy for this is built into state law already: manual recounts. But here, the courts struck down the manual recounts on equal protection grounds, this re-creating the much more real and several equal protection problem the recounts were there to protect against. Personally, I don't find it particularly funny that the liberals were making states' rights arguments in this case, because there really was no federal issue of any substance. The liberals weren't contradicting their historical philosophy, they were just being right. It's the conservatives who, in addition to being plain wrong, were also contradicting their own long-held philosophy. But this goes very well with the fact that the Rehnquist majority, while constantly railing against "judicial activism", has in fact been one of the most activist Supreme Courts in history. However, the real true irony here, and one which both you and the layman's guide did not mention, is one worthy of Shakespeare. This requires a little historical context to explain, though. The 14th amendment, which gave us "equal protection" as a constitutional doctrine, was passed in the wake of the civil war by the "Radical Republicans". The whole point was to force southern states to stop discriminating against blacks, especially in voting. In the immediate wake of the civil war and the reconstruction amendments, such as the 14th, blacks did indeed vote in large numbers, and many blacks were elected to Congress from southern states. But this was short-lived, and by the 1920s "equal protection", and blacks' rights to vote, were nonexistent again. It wasn't until the 1960s civil rights movement that "equal protection" again came to the foreground, and Earl Warren's Supreme Court used it to support blacks' rights to vote, among other things. What was Rehnquist doing in the 1960s, while the Warren Court was using "equal protection" to restore blacks' right to vote? In the early 1960s, William Rehnquist was a Republican lawyer in Phoenix, Arizona. There, he organized something called "Operation Eagle Eye". Squads of Republican lawyers, the "Eagle Eye" activists, would go to voting places in minority precints on election day, and challenge voters. Arizona law allowed a few specific grounds to challenge a voter - you can ask them to prove: - that they're registered - that the live at the address they registered under - that they can read a passage from the constitution Theoretically, in order to make a challenge, you had to have sufficient grounds to believe that the voter you were challenging was in violation on the point you were using. The Eagle Eye squads just challenged every minority voter, and asked intimidating questions that often had no connection to any of the legal grounds for challenge. Sometimes, they just stood there and made every person in line read a passage from the constitution, just to slow voting down to a crawl so that people would have to wait in line for hours and leave without voting. And of course they only did this in minority precints. The 1964 voting rights act brought a stop to these shennanigans and Operation Eagle Eye faded out. This issue came up when Rehnquist was first appointed to the court, and, again when Reagan nominated him to be Chief Justice in 1986. One witness even testified that he personally had to physically shove Rehnquist out of a voting place because he would not leave and would not stop harassing voters, even after the staff had told him to leave and after other Eagle Eye lawyers had followed their instructions. Rehnquist did not deny that he was the person who organized Operation Eagle Eye. He did not deny that he was a registered "challenger" under Arizona law at the time. He did deny that he personally ever challenged any voters, and kept claiming that he did not remember what he did at the time. Somehow, during the Reagan "I don't remember" presidency, this was good enough and the Senate let him through. Rehnquist hated the voting rights act. He hated the Warren Court and its precedents, including especially its use of "equal protection" to protect voting rights. He's spent his entire tenure on the court railing against Warren court precedents, and civil rights in general, including the application of "equal protection" to state matters. And now, Rehnquist finally gets to rule on a voting rights case, in a situation where many blacks were denied their equal right to vote for a variety of reasons. And on this opportunity, Rehnquist reaches back to the Warren Court to pull out the few most extreme of that court's rulings on "equal protection", the ones that were exceptions even in Warren's time... and then he uses those very precedents to apply the equal protection doctrine to actually deny voting rights, in a fitting cap to his long and glorious history as an anti-voting-rights activist. If you'd told the Rehnquist of the early 1960s that one day he'd be in Warren's place, and could actually use the hated "equal protection" doctrine and Warren precedents to finally deny voting rights and assure the election as President of a candidate that 90% of blacks voted against, would even he have believed it? This is one of the most classic triumphs of evil we're ever likely to see in the real world. -- Cos (Ofer Inbar) -- cos@aaaaa.org cos@polyamory.org -- WBRS (100.1 FM) -- info@wbrs.org http://www.wbrs.org/ Suffrage is no substitute for democracy ---------------------------------------------------------------------- Date: Sun, 17 Dec 2000 05:00:05 -0500 From: Ofer Inbar To: [a mailing list] Subject: Federalize presidential elections? I just sent this letter to the editor of the New York Times. Pass it on (but not to "other publications"). Date: Sun, 17 Dec 2000 04:58:07 -0500 From: Ofer Inbar To: letters@nytimes.com Subject: Federalize presidential elections? If we're going to federalize the conduct of presidential elections, which until now has been left to the states, let's do it the right way. I propose the following amendment to the Article II of the Constitution of the United States: Each state shall name a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. A state shall select its electors by a vote of the people thereof, having the qualifications requisite for electors of the most numerous branch of the state legislature. Ofer Inbar 94 Beacon Street S38 Somerville, MA 02143 home: 617-354-7074 work: 781-273-2380 email: cos@aaaaa.org -- Cos (Ofer Inbar) -- cos@aaaaa.org cos@polyamory.org -- WBRS (100.1 FM) -- info@wbrs.org http://www.wbrs.org/ "Good literature is about Love and War." "Junk fiction is about Sex and Violence." ---------------------------------------------------------------------- Date: Sun, 24 Dec 2000 20:33:33 -0500 From: Ofer Inbar To: [a mailing list] Subject: Re: Federalize presidential elections? On Sun, Dec 17, 2000 at 10:41:35AM -0800, [another mailing list subscriber] wrote: > On Sun, 17 Dec 2000, Ofer Inbar wrote: > > > Each state shall name a number of electors, equal to the whole number > > of Senators and Representatives to which the State may be entitled in > > the Congress. A state shall select its electors by a vote of the > > people thereof, having the qualifications requisite for electors of > > the most numerous branch of the state legislature. > > i think more explanation is in order. i fail to see how this paragraph > would change anything. perhaps you could point out why this is different > from what exists, and what it means? and possibly even why it would > prevent (for instance) what happened in florida this year or, if it > wouldn't prevent such a thing, what the benefits would be. Sorry to have neglected this thread so long - I see that other people have attempted to answer for me in the meantime, and pointed out some of the things I'd have said :-) I think there are two separate questions with separate answers here, so I want to deal with them separately. The first question is, what this changes, why it's different from what exists, and what its benefits are in general, without regard to Florida in 2000. The second question is, how do I think this would have affected Florida 2000. I. In general. OK, this is the clear one :) Here's the portion of Article II, Section 1, that I propose amending: Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress Here's my proposal: Each state shall name a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. A state shall select its electors by a vote of the people thereof, having the qualifications requisite for electors of the most numerous branch of the state legislature. [The part that says "but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector" can stay as is] The difference should be obvious, and several people here have already pointed out that there is no federal constitutional right to vote for the President of the USA. What they didn't note is that in fact, in the early days of the USA, some states did not hold public presidential elections. They simply selected their presidential electors by a vote of the state legislature. This is clearly an anachronism, and not something people would accept today. In the early 1960s, the Warren-led Supreme Court did make a number of rulings which referred to the "right to vote", even in presidential elections, probably construing this right from several ammendments to the Constitution, most notably the 14th. But the conservative wing of today's courty view the Warren court and most of its precedent with hostility and disdain (except, as we shall see, where it meets their short-term political interest). During questioning in Bush vs. Gore, Scalia referred to the lack of a constitutional right to vote for the President, and the following language made it into the 7-2 "per curiam" decision: | The individual citizen has no federal constitutional right | to vote for electors for the President of the United States | unless and until the state legislature chooses a statewide | election as the means to implement its power to appoint | members of the Electoral College. U. S. Const., Art. II, -1. | This is the source for the statement in McPherson v. | Blacker, 146 U. S. 1, 35 (1892), that the State legislature's | power to select the manner for appointing electors is plenary; | it may, if it so chooses, select the electors itself, | which indeed was the manner used by State legislatures | in several States for many years after the Framing of our | Constitution. So, the vague Warren court precedent has been officially declared nonexistent, and by a 7-2 vote no less (how this happened is a murky business, I doubt there are 7 judges who actually wanted to overturn this particular precedent, though there may have been as many as 5). The right to vote for the President is something we get from a state legislature, should they choose to do so, and not something protected by the federal constitution. But, we do, de-facto, have a right to vote for president, and it's a right that has been observed for a very long time and which most believe would be shocked to discover isn't actually there. Hence, the need for a Constitutional amendment to say that it's there. ---------------------------------------------------------------------- II. Florida 2000 vs. the right to vote. This is the murky issue. The part of the per curiam I quoted above, is immediately followed by: | When the state legislature vests the right to vote for President in | its people, the right to vote as the legislature has prescribed is | fun-damental; and one source of its fundamental nature lies in the | equal weight accorded to each vote and the equal dignity owed to each | voter. So, there is in fact a right to vote, and the court is going to protect it. They had to say that, because if there's no right to vote for president that the Supreme Court is empowered to protect, then they can't apply "equal protection" from the federal constitution, and "equal protection" was what they needed to use to defeat Gore. But, this right to vote is transitive - it comes from the federal constitution to the people of the states by way of the state legislature, and they note that it can be taken away again: | The State, of course, after granting the franchise in the | special context of Article II, can take back the power to appoint | electors. See id., at 35 ([[[T]here is no doubt of the right of the | legislature to re-sume the power at any time, for it can neither be | taken away nor abdicated)) (quoting S. Rep. No. 395, 43d Cong., 1st | Sess.). [again, this is from the per curiam] It's particularly interesting (in a deeply sickening way) to see where Rehnquist goes with this, next: | The right to vote is protected in more than the initial | allocation of the franchise. Equal protection applies as | well to the manner of its exercise. Having once granted | the right to vote on equal terms, the State may not, by | later arbitrary and disparate treatment, value one person's | vote over that of another. See, e.g., Harper v. Virginia | Bd. of Elections, 383 U. S. 663, 665 (1966) ([[[O]nce the | franchise is granted to the electorate, lines may not be | drawn which are inconsistent with the Equal Protection | Clause of the Fourteenth Amendment)). It must be remembered | that the right of suffrage can be denied by a debasement | or dilution of the weight of a citizen's vote just as | effectively as by wholly prohibiting the free exercise of the | franchise. Reynolds v. Sims, 377 U. S. 533, 555 (1964). And: | An early case in our one person, one vote jurisprudence arose when a | State accorded arbitrary and disparate treatment to voters in its | different counties. Gray v. Sanders, 372 U. S. 368 (1963). The Court | found a consti-tutional violation. We relied on these principles in | the context of the Presidential selection process in Moore v. | Ogilvie, 394 U. S. 814 (1969), where we invalidated a county-based | procedure that diluted the influence of citizens in larger counties in | the nominating process. There we observed that the idea that one | group can be granted greater voting strength than another is hostile | to the one man, one vote basis of our representative government. Id., | at 819. Notice a common thread to the cases being cited as precedent? Yup. These are *all* cases where the Warren court was being "activist" in protecting the right to vote. The very same Warren court cases that Rehnquist & Scalia have been so hostile to, and have made a judicial career out of dismembering. The same cases which presumed a "right to vote", even for President, something which this ruling overturns. In the Rehnquist opinion, two more Warren Court voting rights cases are used as precedent: | For example, in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 | (1958), it was argued that we were without jurisdiction because the | petitioner had not pursued the correct appellate remedy in Alabama's | state courts. Petitioners had sought a state-law writ of certiorari in | the Alabama Supreme Court when a writ of mandamus, ac-cording to that | court, was proper. We found this state-law ground inadequate to defeat | our jurisdiction because we were uuunable to reconcile the procedural | holding of the Alabama Supreme Court with prior Alabama precedent. | Id., at 456. The purported state-law ground was so novel, in our | independent estimation, that petitioner could not fairly be deemed | to have been apprised of its existence. | | Id., at 457. Six years later we decided Bouie v. City of Columbia, | 378 U. S. 347 (1964), in which the state court had held, contrary to | precedent, that the state trespass law applied to black sit-in | demonstrators who had consent to enter private property but were then | asked to leave. Relying upon NAACP, we concluded that the South | Carolina Su-preme Court's interpretation of a state penal statute had | impermissibly broadened the scope of that statute beyond what a fair | reading provided, in violation of due process. See 378 U. S., at 361 To see Rehnquist saying "we" when referring to these cases made me blink out loud (yeah, I know, you can't actually blink out loud, but that's what it felt like I was doing). The insincerity flowing out of every one of Rehnquist's pores when he wrote that must have been overwhelming. But the fact is that without Warren Court precedent, there is no way he could have made the flimsy "equal protection" case that he made. I have personally read most of these cases cited, and it's clear to me that in this one exceptional case, Rehnquist & Scalia reached way beyond what the Warren Court would have done, obviously for political reasons. Now, remember that reference to McPherson vs. Blacker, earlier? This case first came up not in Bush v. Gore, but in the previous Supreme Court Election 2000 case, Bush v. Palm Beach, which was decided on December 4th. The Blacker case was not mentioned in Bush's case. Rather, it was something Rehnquist came up with, out of the blue, and first mentioned while he was questioning Lawrence Tribe. It was obvious, listening to that hearing, that Tribe was flustered, and didn't know how to respond. I don't think anyone, on either the Bush or Gore side, had thought of this until Rehnquist brought it up. Rehnquist used Blacker to introduce a whole new dimension to the case. Previously, there were two issues in the Bush case: Equal protection (different recount standards in different counties), and whether or not the Florida Supreme Court interpreted existing law, or created new law after the fact. Now, although there is no federal constitutional right to vote for president, there definitely is a Florida constitutional right to vote for president. The Florida Supreme Court ruling in question at the time, the one that told Katharine Harris she must include any manual recounts done by November 26th in her certification, made many references to the Florida constitution and the right to vote. Rehnquist claims that the Blacker case, which (in an aside comment) affirms that state legislatures can choose any method they want for selecting Presidential electors, means that a state court *cannot* resort to a state constitution when interpreting presidential election law. Thus, another possible problem with the Florida State Supreme Court ruling, was that they might have inappropriately overturned state election law based on their state constitution, something which they can do in every case *except* something dealing with the selection of presidential electors. In that case, and only that case, they must interprete state law in the context of the federal constitution and not the state constitution. At the time, the federal circuit court and federal appeals court had thrown out Bush's equal protection claim, which everyone assumed was ridiculous (and it was). It seems pretty clear to me that if Rehnquist didn't have this Blacker argument to lean on, he could never have pulled a majority of the Supreme Court to support him in taking on Bush v. Palm Beach and remanding the case to the Florida court. Now, Rehnquist's argument is bullshit. It's utterly obvious to anyone reading the Florida court ruling, that they did not need to rely on their state constitutional right to vote, to come to the ruling that they did. Indeed, that's what they said when they issued their clarification, but by that point events had gone too far and it was too late for that point to matter. Also, Rehnquist's interpretation of Blacker is an illogical reach. The Blacker case itself actually contradicts this interpretation, and Stevens' dissent in Bush v. Gore points this out: | Article II provides that [e]ach State shall appoint, in such Manner as | the Legislature thereof may direct, a Number of Electors. Ibid. | (emphasis added). It does not create state legislatures out of whole | cloth, but rather takes them as they comeas creatures born of, and | constrained by, their state constitutions. Lest there be any doubt, we | stated over 100 years ago in McPherson v. Blacker, 146 U. S. 1, 25 | (1892), that [w]hat is forbidden or required to be done by a State in | the Arti-cle II context iiis forbidden or required of the legislative | power under state constitutions as they exist. In the same vein, we | also observed that [t]he [State's] legislative power is the supreme | authority except as limited by the constitution of the State. Ibid.; | cf. Smiley v. Holm, 285 U. S. 355, 367 (1932).1 The legislative power | in Florida is subject to judicial review pursuant to Article V of the | Florida Constitution, and nothing in Article II of the Federal | Constitution frees the state legislature from the constraints in the | state constitution that created it. Stevens goes on to point out another problem with Rehnquist's argument: | Moreover, the Florida Legislature's own decision to employ a unitary | code for all elections indicates that it in-tended the Florida Supreme | Court to play the same role in Presidential elections that it has | historically played in resolving electoral disputes. The Florida | Supreme Court's exercise of appellate jurisdiction therefore was | wholly consistent with, and indeed contemplated by, the grant of | authority in Article II. But this all came later, in Bush v. Gore. I'm convinced that Rehnquist took everyone by surprise by pulling Blacker out of his hat in Bush v. Palm Beach. This flustered Tribe, who was entirely unprepared to deal with this issue (even though Justice Ginsburg clearly tried to throw him a lifeline, which he failed to take *grrr*), and Tribe's flawed defense may have been a big factor in the Supreme Court's decision to remand the case rather than dismiss it. An optimistic view of how this might have affected the 2000 Election is as follows. Bush v. Gore relies on these points: 1. There were problems with the way the recount was done 2. The Florida legislature clearly intended to take advantage of "safe harbor" for its elections, by selecting them in time for the December 12th "safe harbor" deadline [Note here that about 20 states did *not* submit their slates of electors by December 12, 2000] 3. There was no way to remedy the recount problems while still qualifying for safe harbor, since there was no time left, hence the current selection (Bush electors) must stand. As Souter said in his defense, this whole fiasco is the Supreme Court's fault. The reason Florida ran out of time is that the Supreme Court intervened and made it run out of time. Souter and other dissenters further argued that the December 12th deadline was not important enough to trump voting rights, and they were quite correct to argue that. But obviously the Rehnquist wing was committed to December 12th, as their way of killing Gore's case. The fact that they were making their ruling *on* December 12th made it easy to use that to stop the recounts. If, however, the Supreme Court had dismissed Bush v. Palm Beach, two weeks earlier, the "out of time" argument might not have flown. Florida, not faced with federally-imposed delays on its recounts, might have been able to start recounting in time to do it right before December 12th. If the Supreme Court had been ruling on Bush v. Gore on December 4th, say, rather than December 12th, points #1 and #2 would not have led to point #3, and the "liberal wing" of the court might have convinced O'Connor & Kennedy that the appropriate remedy for recount problems was to order a better recount. And remember, the Blacker issue would be a total non-issue if there were a federal constitutional right to vote for President, and if the Florida court had referred to *that* instead of (or in addition to) the Florida constitution. Personally, I don't subscribe to this optimistic view of how things might have turned out. As became clear right from the first set of hearings, in Bush v. Palm Beach, the head prosecutor for Bush's case was not Bush or any of his team, it was the Chief Justice. Rehnquist was going to appoint Bush as President, no matter what half-cocked far-fetched self-contradictory legal theories he needed to come up with to do it. Scalia was going to help him out. Thomas, as usual, let Scalia do all his thinking for him. And Kennedy and O'Connor just needed Rehnquist to come up with something vaguely plausible enough that they could bring themselves to pretend it was valid, and not vote against it. [Although, note, Kennedy and O'Connor didn't actually sign *any* of the opinions in this case. I can only presume they were too embarassed to. This gives us the unusual situation of a very important case being decided with only 3 justices willing to put their name forward in support of the decision, while 4 justices vehemently dissent. If Ehud Barak could pull this kind of thing off, Israel wouldn't need new elections...] So, I conclude that if there were a federal constitutional right to vote for president, it would not have changed the outcome of this case. It would only have changed Rehnquist's choice of arguments to make. He would have found something else, and worked it to its full advantage and then some. Nothing was going to stop Rehnquist from finding *some* argument that he could use to persuade Kennedy and O'Connor that there was some plausible ground to stop counting votes, that they could "support" merely by failing to vote against. But, it would have made a difference, in that the issue of the right to vote would never have come up. The Florida court would have cited the federal constitution in their case. McPherson v. Blacker would have been an obscure and obsolete relic, its precedent on this matter overturned by whatever constutional amendment gave us the right to vote, and would never have come up. Neither Scalia nor Rehnquist would have brought up the lack of a right to vote during questioning, and it would not have been explicitly laid down in the per curiam. And, just perhaps, the Gore people might have brought their *own* voting rights case against Florida to the Federal courts. I can't even begin to predict how that would have played out. -- Cos (Ofer Inbar) -- cos@aaaaa.org cos@polyamory.org -- WBRS (100.1 FM) -- info@wbrs.org http://www.wbrs.org/ "One has a moral responsibility to disobey unjust laws." -- Dr. Martin Luther King, Jr.