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| For Immediate Release | |
| Dec 15, 2000 | Contact: Press Office 202-646-5172 |
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The Supreme Court opinion cementing George W. Bush’s election as president of the United States was a victory for only President-elect Bush. In terms of jurisprudence, it was a loss for every other American. The per curiam portion of the decision, that portion approved by all nine members of the Court, is deeply flawed, raises more questions than it answers, and fails to address the core constitutional questions raised by the Florida election litigation. Citing the principle of “one man, one vote,” the per curiam decision essentially says that all votes for a candidate be counted in a standard way so as to not dilute the vote of a particular citizen. So when the Flordia Supreme Court allowed different local canvassing boards to recount disputed ballots using different standards, the Supreme Court reasoned that some citizens’ votes were being diluted and subjected to constitutionally impermissible disparate treatment -- in that one standard might allow a vote to count in one Florida county, while the same vote might be rejected under a different standard in another county. This reasoning raises the prospect of broad constitutional challenges to vote counting systems throughout the country. For instance in Florida, there were varying rates of rejection of problematic ballots depending on which type of machine was doing the counting. Following the Supreme Court’s reasoning, if one machine tends to reject ballots at a higher rate than another machine, one might argue that voters whose ballots are counted by the machine with the higher rejection rate are being given disparate treatment. It seems that any variance in the rejection rate of ballots would raise this new disparate impact concern the Court put forward in its unanimous decision. The use of the disparate impact standard in civil rights law has rightly been criticized by conservatives and other fair-minded commentators. They should be equally suspicious of such a standard in this instance. Additonally, by hanging much of its reasoning on the principle of “one man, one vote,” the Court ignores fundamental constitutional principles to the contrary. Under our constitutional system, not all votes are equal. An U.S. senator from the tiny state of Rhode Island is the equal of a senator from the large state of California. In terms of the ability to have influence in the Senate, the citizens in Rhode Island thereby have their votes exponentially magnified and California citizens have their votes conversely diminished. As presidential electors are assigned to states based on the sum total of a state’s representatives in Congress (the number of congressmen plus the number of senators), citizens in small states again have the power of their presidential vote magnified. The Court also failed to address directly the core federal issue raise by the actions of the Florida Supreme Court. Did the Florida Supreme Court usurp the constitutional role of the state legislature in setting new deadlines and ordering state wide recounts? In their concurring opinion, Rehnquist, Scalia, and Thomas clearly think the Supreme Court of Florida did overstep its constitutional bounds by effectively appointing itself Florida’s Secretary of State. But these same justices also signed on to a per curiam opinion which implies that the Florida Supreme Court did little wrong other than failing to set more specific standards for the interpretation of disputed ballots. . The Supreme Court has now unanimously set in motion a recipe for perpetual quadrennial conflict in the process of selecting our president. The justices have left open the possibility that any state court, as long it does so by December 12 of a presidential election year, can substitute itself for the state legislature by creating deadlines, ordering the count of ballots (dimpled and otherwise), and by designating itself the final arbiter of who is certified the winner of a contest. The law is now settled -- let the candidate with the best lawyers win. |
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