I'm not in favor of
the delay, but that's mostly because I don't take seriously the decision in
Bush v. Gore. However, if one believes in the unbearable rightness of
that decision, then I don't see how the free speech interests mentioned by
Ackerman matter all that much. If a court determined that an upcoming
special election was being structured in a way that admittedly infringed on
minority voting rights (in more traditionally recognized ways), would the free
speech rights of candidates weigh against relief? On Ackerman's free
speech theory, it would hard to imagine any circumstance where a scheduled
election could be postponed on the grounds that it was constitutionally
deficient. HG
-----Original
Message-----
From: Discussion
list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Eugene Volokh
Sent: Wednesday, September 17, 2003 7:42
AM
To:
[EMAIL PROTECTED]
Subject: FW: NYTimes.com Article: The
Vote Must Go On
Forwarded with the
Times' permission (I tried to send it directly, but there was a technical
glitch).
-----Original
Message-----
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Wednesday, September 17, 2003 10:29
AM
To:
[EMAIL PROTECTED]
Subject:
NYTimes.com Article: The Vote Must Go On
This article
from NYTimes.com
has been sent to you by
[EMAIL PROTECTED]
Here's Bruce Ackerman's op-ed on the recall case;
thought people might find it interesting.
[EMAIL PROTECTED]
/-------------------- advertisement
-----------------------\
Explore more of Starbucks at
Starbucks.com.
http://www.starbucks.com/default.asp?ci=1015
\----------------------------------------------------------/
The Vote Must Go On
September 17, 2003
By BRUCE ACKERMAN
NEW HAVEN
The federal appeals court order delaying the
recall
election
in California cites the Supreme Court's decision
in Bush v. Gore more than a dozen times.
It is undeniable
that California's recall election, which will
use
punch-card
voting systems, has the potential to become
another voting fiasco replete with
hanging chads and
changing standards. But this is not nearly enough to
make
it a legal
rerun of Bush v. Gore.
For starters, in 2000 the Supreme Court intervened
only
after the
election. Its decision came too late to distort
the actual conduct of the election
campaign. In the run-up
to November, George Bush and Al Gore shaped their
political
appeals
to the voters in blissful ignorance of the crisis
ahead. The court was thus able to focus
on the question of
equal protection in the recount without worrying about
its
decision's
impact on crucial constitutional values of
political speech.
This time around, the candidates in California have
already
invested
heavily in a short campaign. Their competing
strategies have been designed to reach a
climax on the Oct.
7 election date. If they had known they would have
to
compete until
March, they would have conducted their
campaigns very differently. By suddenly changing the
finish
line, the
three-judge panel of the United States Court of
Appeals for the Ninth Circuit disrupts
the core First
Amendment freedom to present a coherent political
message
to
voters.
Worse yet, the decision disrupts the First
Amendment
interests of the millions of Californians who
have
participated
in the recall effort. State law promised them
a quick election if they completed their
petitions by an
August deadline. Now their effort will have to compete
in
March with the
candidates for the Democratic presidential
nomination. A campaign focused on
California issues may be
swamped by national politics.
All of these concerns make the present case far
more
complex than
Bush v. Gore. Three years ago, the Supreme
Court had the luxury of focusing narrowly
on the vote count
and the extent to which it violated principles of
equal
protection.
In contrast, the appeals court was also obliged
to place the First Amendment freedoms of
the candidates and
the public into the balance. Unfortunately, the
court's
opinion
doesn't even recognize the existence of this
constitutional problem.
The decision departs from Bush v. Gore in a second
way.
When the
Supreme Court stopped the recount, Florida's time
was running out. Continuing the recount
increased the risk
that its electoral vote would be challenged in
Washington
when
Congress counted all the electoral ballots. Whatever
its other merits or demerits, the court's
intervention
protected the right of each state to make its voice
heard
in
selecting the president.
In contrast, the present decision attacks states'
rights at
their
very core. The short election period is central to
California's political integrity. Its
constitution places a
limit of six months on this extraordinary process.
By
extending the
election beyond this period, the court
condemns the state to an extended period of
political
paralysis.
While California's punch cards are obsolete, they
have
worked well
enough for decades. And while there is a chance
of fiasco this time, there is a certainty
of a widespread
disruption of precious First Amendment freedoms.
Instead of
delaying the vote, the court should have focused on
more
concrete
problems. For example, it could have ordered the
state to open more polling places in
heavily minority
areas.
There is one consolation. The panel stayed its
decision for
a
week to allow for reconsideration, either by the full
Ninth Circuit or the Supreme Court. In
either case, the
court should make it plain that Bush v. Gore is not
an
invitation for
an endless series of judicial interventions
into the very heart of our political
life.
Bruce Ackerman, professor of law and political science
at
Yale, is
editor of ``Bush v. Gore: The Question of
Legitimacy.''
http://www.nytimes.com/2003/09/17/opinion/17ACKE.html?ex=1064808953&ei=1&en=473c940cc1aa1696
---------------------------------
Get Home Delivery of The New York Times Newspaper.
Imagine
reading
The New York Times any time & anywhere you like!
Leisurely catch up on events & expand
your horizons. Enjoy
now for 50% off Home Delivery! Click
here:
http://www.nytimes.com/ads/nytcirc/index.html
HOW TO ADVERTISE
---------------------------------
For information on advertising
in e-mail newsletters
or other creative advertising opportunities with The
New York Times on
the Web, please contact
[EMAIL PROTECTED] or visit our online media
kit at http://www.nytimes.com/adinfo
For general information about NYTimes.com, write to
[EMAIL PROTECTED]
Copyright 2003 The New York Times
Company
