I recall listening to now Solicitor General Theodore Olson making his pro-Bush argument before the Supreme Court in December 2000. He was not doing particularly well and his side-kick, Chief Justice William Rehnquist, stepped in and proposed a promising argument.
Might it not be a violation of the 14th Amendment’s equal protection clause to have different ways of recounting votes in differing jurisdictions? Brilliant idea, Olson must have thought, as he pedaled furiously to pretend as if he had thought up the argument himself. He need not have, as Rehnquist carried on for him, even suggesting case precedents.
That equal protection argument threw the experts–especially since the equal protection clause–which forbids states from interfering with federal rights–would not seem to apply to elections. For you see, there is no constitutional or federal right to vote! If you did not know that before Bush v. Gore, I hope you learned then that the right to vote for state office is governed by state law. Further, your right to elect electors to vote in the electoral college, which elects the president of the United States, is likewise governed by state law (though the manner of the meeting of the electors and casting the vote for President and Vice President is governed by the Constitution). Said the court,
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, sec1.
The 9th Circuit Court of Appeals, in ruling on a suit by the American Civil Liberties Union and other organizations, applied the full force of the equal protection argument to the upcoming effort of some Californians to recall Gov. Gray Davis. Several counties (the poorest and those with large minority populations) don’t have the new fancy voting machines. They have, instead, punch cards, complete with hanging chads, those diabolical voting remnants that gummed up the Florida count.
The 9th Circuit said that those votes would be more likely than those votes rendered by means of the new machines to be tabulated incorrectly or not counted at all. Under Bush v. Gore, the court said, such a voting scheme is antithetical to the 14th Amendment.
No sooner had the opinion been announced than Republicans in California and across the country accused the 9th Circuit of perpetrating a left-wing conspiracy against the would-be new California governor, Arnold Schwarzenegger (or, to be fair, I guess, against all Republicans). Someone else accused former President Bill Clinton of influencing the judicial opinion. That’s because Clinton was in California rallying support for Davis the day before the ruling was announced. Ah, a perfect correlation.
It is likely that the full panel of the 9th Circuit will rehear the case. There is no telling what it will do. If it votes along political lines, it will toss the three-judge court ruling. In any event, this case will make its way to the Supreme Court.
There, the justices can leave it alone or delve in. Either way, they are hung by their own petard, quite literally. I say this with enormous glee. For the decision, according to election law and constitutional law experts, was totally without legal precedent and defied all logic.
Will they follow their own rationale of Bush v. Gore? That is, “When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”
Or will they hide behind the excuse they created for themselves? They demurred, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
If they do take the case and rule for the Republicans, they will appear to be the political animals that they are.
And if the high court rules for the plaintiffs and, in an act of legal and logical consistency, stops the recall? A novel thought, but not an event I expect to be writing about.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. This article originally appeared on FindLaw’s Writ. She can be reached at: firstname.lastname@example.org