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I am not declaring my position on the 9th
Circuit's intervention here, but--"Accepted fair plaing field?" For whom?
"Undermines the legitimacy of the process?" For whom? This thing has
been a mess from the outset, and although the law on the books allows recall for
any reason or no real reason, it is hard for some Californians to see this as
anything but an illegitimate attempt to "redo" the fall 2003 election, paid fore
by a rich conservative Republican. There are disadvantages to
minority voters in some counties (eg Monterey) with fewer polling places because
of budget problems, even if "the courts" rejected those
arguments. There are two initiatives on the ballot of importance, yet
there is little information or coverage to help voters out. (Those
initiatives ar eon because they were to be voted on in the "next election",
whcih turne dout to be the recall).
The Republicans are split on whether
McClintock should stay in the race, even though it was the conservatives who
supported the recall (at least he understands government and governing) ,
the Democrats are quietly feuding, many voters are simply wincing, and the
playing field is full of gopher holes.
Sincerely
Lynne
Prof. Lynne Henderson
Boyd School of Law--UNLV
4505 Maryland
Pkwy
Box 451003
Las Vegas, NV 89154
702-895-2625
----- Original Message -----
Sent: Wednesday, September 17, 2003 11:11
AM
Subject: Re: NYTimes.com Article: The
Vote Must Go On
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)
(504) 862-8856
(fax)
[EMAIL PROTECTED]
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
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