Balkinization

A Great Gamble, By an Untrustworthy Man

My op-ed on Iraq, of which the previous post is the first draft, appears in today's Hartford Courant.

Several readers have asked for a bill of particulars justifying my conclusions about the election.

Here's what happened in 2000.

Before the election, officials in the Florida Republican Party violated the Voting Rights Act of 1965 by purging African-American voters from the authorized voting lists, reducing the number of votes for Gore. This purging of the voting rolls was completely overshadowed by the controversies over butterfly ballot and chads, and the greater percentage of spoiled ballots by minority voters. The purging of voter rolls to exclude African-Americans, however, was the most serious violation of law and went almost completely unreported by the American press.

After the election, the U.S. Supreme Court stayed the recounts in Florida on December 9th just as Gore was about to push ahead. (Bush I) The reasons given for the stay were completely at odds with the law governing when injunctions should be issued.

The Supreme Court then handed down a decision on December 12th (Bush II) that argued that the manual recounts violated Equal Protection and that the recounts should cease permanently. The Court's interpretation of the EP Clause was unprecedented, and was supported by Justices who are opposed to novel extension of Equal Protection claims. Perhaps more suspicious, the Court argued that its interpretation of the Equal Protection Clause, announced for the first time in this case, applied only to the facts of this particular case and to no others.

Finally, the Court offered a remedy wholly inconsistent with the underlying claimed violation of Equal Protection. If the EP Clause were violated, the proper remedy would not have been to stop all recounts (for that might have violated EP as well) but to recount under a method consistent with Equal Protection.

There is no doubt that if the parties had been reversed, there would not have been five votes either for the initial stay or for the EP argument and final remedy. Indeed, there might not have been a single vote for what the Court did.

These issues are discussed at length in my academic writings. A discussion of the violations of the Federal Voting Rights Act appears here, in an article that was published in the Virginia Law Review, and a discussion of the role of the Supreme Court appears here in an article that was published in the Yale Law Journal.

Posted 8:14 AM by JB [link]