[Mb-civic] Bush v. Gore, Ticking Bomb

[Michael Butler]

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Bush V. Gore, Round 2    €

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    Bush v. Gore, Ticking Bomb
    By George F. Will
    Newsweek

     25 October 2004 Issue
 That decision, which need not have been written, is pregnant with enough
mischief to plunge the nation into chaos on Nov. 3.

    On Dec. 12, 2000, the Supreme Court decided Bush v. Gore, ending the
Florida fiasco and guaranteeing George W. Bush's election. Shortly
thereafter the conservative National Review, which was pleased by the
ruling's consequence but queasy about the reasoning that produced it, issued
a warning, the prescience of which might become excruciatingly evident on
Wednesday, Nov. 3. Noting that the court's "dubious argument" that
standardless, selective hand counts in Florida violated the Constitution's
guarantee of "equal protection of the laws," National Review said:

     "It is unclear why-with the different vote tabulation systems from
county to county, with different levels of accuracy-this line of reasoning
wouldn't render Florida's entire electoral system unconstitutional. Or, for
that matter, the nation's electoral system. In fact, all of life can be
considered a violation of the equal protection clause, which is why the
clause has traditionally been the Swiss Army knife of liberal jurisprudence,
fit for achieving any result, however arbitrary."

     Which is why Jeffrey Rosen's recent essay "Rematch: Bush v. Gore, Round
2" (The New Republic, Oct. 4, 2004) is mandatory reading for both campaigns
and citizens who want to brace themselves for the storm that could engulf
the nation as soon as the polls close Nov. 2. Then the parties might unleash
thousands of lawyers, each clutching a copy of Bush v. Gore, to ferret out
"equal protection" violations in every closely contested state.

     Consider the use of different voting systems-electronic touch screens,
punch cards, etc.- in different jurisdictions of a particular state. All
systems are fallible, and different systems have different error rates. Does
that mean that "equal protection" is denied when different systems are used?
What if the distribution of the different systems within the state means
that errors have a "disparate impact" on minorities?

     Consider provisional ballots. Millions might be cast this year. (In
2000, more than 101,000 were cast in Los Angeles County, which has 3 percent
of the nation's electorate.) They are cast by people who, for example, say
they registered but whose names are not on the voter rolls. Or by people who
cannot prove who they are, or where they live, or that they are citizens. Or
by people who go to vote in the wrong place.

     (Should the right to vote require a smidgen of responsibility? Should
the electoral system be twisted in knots, paralyzed and exposed to vast
fraud just to accommodate people too clueless to show up at the proper
polling place? Never mind.)

     Provisional ballots are sequestered and validated after the polls
close. How long after? That depends on the sort of scrutiny they require. Or
on what scrutiny this or that court might say is permitted. Is there an
"equal protection" violation if all of a state's provisional ballots are not
judged by a statewide standard? Or even if different states have different
standards?

     Legions of lawyers are poised to litigate all this and much more.
Imagine courts tickling out all the implications of Bush v. Gore until
enough conclusions are reached to allocate someone 270 electoral votes in,
say, May.

     How did we reach this danger? When Al Gore dragged Florida's courts
into the election process, the U.S. Supreme Court did not make the prudent
decision to refuse to be dragged into what Justice Felix Frankfurter called
the "political thicket." If the court had allowed Florida's intrastate power
struggle to proceed, here is what probably would have happened:

     Florida's runaway Supreme Court would have done what it seemed
determined to do: it would have continued to rewrite the state's election
laws and vote-counting rules until they produced a Gore victory. Then
Florida's Republican-controlled legislature would have done what the U.S.
Constitution empowers state legislatures to do: choose electors. (Article
II, Section 1: "Each state shall appoint, in such manner as the legislature
thereof may direct, a number of electors.") No one can know what then would
have happened. Congress, which counts the electoral votes, could have
intervened. The Republican-controlled House would have endorsed the Florida
Legislature's Bush electors. The 50-50 Senate, with Gore casting the
tie-breaking vote, probably would have backed the Gore electors. In this
anarchy, the Bush electors certified by Florida's secretary of State
probably would have elected him.

     And Bush v. Gore would not have been written. But it was, and it is
pregnant with much mischief.

     How much? Experts-there are few regarding these arcane questions-differ
as to who might be inaugurated on Jan. 20. The speaker of the House? The
secretary of State? If on that date enough electoral votes are still being
disputed because so many popular-vote counts are being litigated, who-the
law, says an actual expert, Akhil Reed Amar of Yale Law School, is
murky-fills the presidency when the incumbent's term expires? Whoever it is
will depart when Bush or Kerry finally gets 270 electoral votes, perhaps in
May.

  

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