Nadine - By restricting their decision to "present circumstances", it is clear the USSC meant to restrict their invocation of an equal protection argument in the context of an election solely to this one presidential race, and not to any other election of any kind. The Per Curium opinion makes it abundantly clear that the swing voters (O'Connor and Kennedy) thought that equal protection as applied to an election is a slippery slope that is fraught with problems. They then leaned on a slender reed in article 2 to apply it anyway. Why is it such a problem to use equal protection doctrine in the context of an election? As you have pointed out, it is because applying equal protection to elections and vote tabulation would inherently lead to overturning most elections. As you point out, if you were to apply equal protection fairly, it should apply not only to counters after the fact, but to the mechanisms for voting in the first place. In short, one would have to account for (and reject the use of) different types of machinery which involve different accuracy rates, etc. -- which is to say, every election involving machines with different accuracy rates would violate the equal protection of those who happen to vote in jurisdictions or precincts where the machines are more outdated, less reliable, etc. -- taken to its logical extreme, all national and statewide elections in the USA would be per se unconstitutional, because there is no equality in how voters are treated and protected from one county to the next (in some cases from one precinct to the next). In the case of a presidential election, a strong argument can be made that the failure to use a uniform ballot nationwide (or at least statewide) in a presidential election is a per se violation of equal protection -- and the USSC could not go there because clearly the founders saw presidential elections not as one national election, but as many (now 50) statewide elections. So they attacked the different standards used in the 4 counties involved (all of which hinged on county-by-county interpretations of the one statutory standard -- "clear intent of the voter" -- as they had to under State law) and ignored the inequality of treatment which results from not manually inspecting punch ballots to ensure that all ballots clearly reflecting voter intent are counted.
The USSC does NOT want to say that equal protection applies to all statewide elections, or to ANY election other than this one, because (i) that would open the door to Federal Court involvement every time a statewide election has a similar problem (which happens often enough), and (ii) that would require them to read into the constitution principles that we can safely say were NEVER contemplated by the founders. So much for strict construciton. Indeed, were it not for the political outcome here, it is highly doubtful that the USC would ever have stepped on this particular land mine. And to hammer the point home, if (1) Gore had been ahead by 537 votes, (2) Bush had requested, in accordance with state law, manual recounts in 4 counties with heavy GOP majorities that used punch card voting machines and that had abnormally high undervote tallies relative to the rest of the state, (3) the counties involved had, in accordance with state law, commenced those recounts, each using a "clear intent of the voter" standard albeit in differing ways, (4) a State official who was co-chair of the Gore campaign tried to stop the recounts by incorrectly (and illegally) advising the county canvassing boards that the recounts could only be done under very limited circumstances which bore no relationship to the statutory standards for when the recounts could be requested and conducted, and (5) the FSC had ruled that the state official had acted improperly, and that recounts were entirely consistent with what state law provided, do you really think for one nanosecond that the USSC would have taken thecase, or if it had, that it would have reversed that decision?? No way. If the tables had been turned, they would have opted not to take the case, citing Article 2 and Title 3 (much as the 4 dissenters did here in arguing that the majority was wrong to take the case) or they would have applauded the FSC for attempting to enforce state law and remedy the obvious unequal treatment of GOP voters in punch ballot jurisdictions whose votes were not being counted, while skewering the Gore official (i.e., the Katherine Harris clone in my hypo) who tried to interfere with the process.
Let's call this what it is: In order to overturn a Florida decision that the 5 most conservative justices didn't like for the political result it created, they latched onto Article II of the Constitution and Title 3 of the US Code to justify intervening in what was clearly a state law issue. There is no way this particular court second guesses a state supreme court deciding a state law issue if the political outcome is reversed. The problem with what the USSC did here is that Article II makes it very clear that it is up to the states (and not thefederal courts) to determine how the election of Presidential electors to the electoral college will be conducted inthat state, and Title 3 assigns a role in that process to only 3 (and not 4) governmental bodies: the State legislature, the State judiciary and the US Congress -- but clearly NOT the federal judiciary (i.e., the USSC). In doing so, the majority violated the very principle they claimed to be upholding in the Gore v. Harris case that they sent back to the FSC (i.e., ensuring that the election be conducted in accordance with state law procedures as they existed prior to the election) and they did it on the basis applying a doctrine in an incomplete way that happened to benefit the political outcome they were seeking. Make no mistake about it, this was a political result arrived at politically, by 5 right wingers in robes who abandoned conservative judicial principles in order to appoint a fellow conservative president. It is nothing less than a political crime, started by Bush's decision to take the position that a state law recount procedure that existed prior to the election (which was intended to lead to a more accurate result) is, under all circumstances, impermissible, and that we should apply a lower stadard of care to a presidential election than we would to an election for dogcatcher; and concludedwhen 5 conservatives in robes appinted him president by staying the recount, overturning the state supreme court interpreting its own law on the specious ground of equal protection, and then putting the cherry on it by saying that there was no longer sufficient time to remedy the inequality (after they had stayed the count). As we preach the virtues of a democratic society to the rest of the world, we ourselves have appointed to the White House a man who lost nationally by 500,000 votes, and who won the electoral college using tactics that we would no doubt find objectionable if they were employed by an emerging third world country. Incredible. |
