Re: NYTimes.com Article: The Vote Must Go On

[Stephen M. Griffin]

I agree with Ackerman's conclusion, although I also agree that the first amendment rationale seems a bit strained here.  In fact, this seems a good example of how we should not turn to rights analysis in the first instance in understanding what's wrong with interfering with a democratic electoral process.  Structural analysis is called for and so Ackerman's sequencing objections (court acts before the election happens) are more telling that his rights objections.  And if anyone's rights are at issue, it is the rights of the California electorate generally, not just the candidates.

 

More generally, rights analysis bypasses an assessment of what's really going on from a political perspective.  It lacks legal realism (so to speak).  The court's intervention is seen as changing an accepted fair playing field.  It undermines the legitimacy of the process from at least one political perspective (the right).  Since one important purpose of any democratic constitutional scheme is to guarantee that legitimacy, the court should have known better.  Constitutional common sense, you might say.

 

Stephen M. Griffin
Vice Dean of Academic Affairs
Rutledge C. Clement, Jr. Professor in Constitutional Law
Tulane Law School
6329 Freret Street
New Orleans, LA 70118
(504) 865-5933 (voice)
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-----Original Message-----
From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]On Behalf Of Sanford Levinson
Sent: Wednesday, September 17, 2003 1:01 PM
To: [EMAIL PROTECTED]
Subject: Re: NYTimes.com Article: The Vote Must Go On

At 12:35 PM 9/17/2003, you wrote:

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

 

Picking up on Howard's point, imagine that the Supreme Court on Sept. 10, 1943, enjoined a White Primary in Texas scheduled to take place on, say, Oct. 1, on the ground that it violated the Equal Protection clause and that there clearly was not enough time to register all of the Black voters who would participate in the primary and who were not allowed to register as Democrats under the old rules.   So it delayed the election until, say, November 1. 
Would this obviously be improper?  If not, then why the outrage with regard to the Ninth Circuit, which plausibly reads Bush v. Gore to require a process of vote counting that does not foreseeably and arbitrarily  resusl in the exclusion of would-be voters from the final tally?

sandy