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. HGPicking 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
Two points here:
(1) If you want until Sept. 10 to move to enjoin a white primary scheduled October 1, you'd better worry about laches, especially since the Supreme Court had upheld Texas's white primary in 1935 (Grovey v. Townsend) and U.S. v. Classic, the case that ostensibly changed the law in a way that undercut Grovey was decided in 1941.
(2) Election law doctine is messy on this but sometimes if you don't move to enjoin the election ahead of time, you can't move to set aside the results afterwards.
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School
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