Bush v. Gore

[muon2]

Part I (7-2): The Supreme Court held that, by using arbitrarily different recount standards throughout the state, Florida denied "equal protection" to its voters, thereby violating the Fourteenth Amendment.

This part of the ruling is, strictly speaking, unsound. The equal protection clause is found in Section 1 of the Fourteenth Amendment. Section 2 of the same amendment reads as follows:

When the right to vote at any election ... is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This section specifically acknowledges that states are allowed to "den[y] ... or in any way abridge" a citizen's right to vote. It proceeds to provide a specific remedy for a denial of the right to vote: the state's representation in Congress is reduced based on the number of people who have been disenfranchised.

The Fourteenth Amendment must be interpreted as a whole unit. If Section 2 specifically allows states to deny or abridge a citizen's right to vote, then how can Section 1 forbid states from doing exactly the same thing? If we interpret the Fourteenth Amendment consistently, we reach the conclusion that the equal protection clause does not cover the right to vote. (This loophole was observed by Congress a few years later, leading to the Fifteenth Amendment.)

You draw a conclusion that I cannot from the text. The fact that the fourteenth amendment recognizes the possibility that states may deny voting to some of its citizenry in no way directly implies that it is allowed.

Recognition of an undesired act is the essence of criminal statutes. After recognition of the act there is a designated penalty. I read the second section as a criminal penalty, not the allowance of an act. In this case the act is not allowed and can be arrested in advance of its commission by the court.

In this case the court found that use of the partial recount would be unfair. It properly restrained the state from applying those results to the election, rather than waiting for the disallowed act to be completed and then applying the constitional penalty.

[muon2]

You draw a conclusion that I cannot from the text. The fact that the fourteenth amendment recognizes the possibility that states may deny voting to some of its citizenry in no way directly implies that it is allowed.

Section 2 explicitly contemplates the denial of the right to vote, and provides a specific remedy for such a denial. The remedy entails nothing more than a reduction of the state's congressional representation. It does not entail forcing the state to allow certain persons to vote. But if the textual argument is deemed unsatisfactory, we can also consider the statements of those who framed the Fourteenth Amendment.

The Fourteenth Amendment was introduced in the House of Representatives by Thaddeus Stevens. Referring to Section 2, he argued:

"If any State shall exclude any of her adult male citizens from the elective franchise, or abridge that right, she shall forfeit her right to representation in the same proportion. The effect of this provision will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive."

Stevens clearly recognized the authority of a state to "exclude any of her adult male citizens from the elective franchise." According to him, states have an alternative: they may either choose universal suffrage, or they may lose congressional representation.

Even stronger evidence comes from the Senate debate. Senator Jacob Howard, who introduced the Fourteenth Amendment in the Senate, explained as follows:

"[T]he first section of the amendment [prohibits] a State ... from denying to him the equal protection of the laws of the State ... But, sir, the first section of the proposed amendment does not give to either of these classes the right of voting ... The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right."

Another important point is this: why would the Fifteenth Amendment have been necessary, if its objective were already accomplished by the equal protection clause? 

The quote from Rep. Stevens is completely consistent with the intent that Congress make exclusion of voting rights akin to a crime. He is not recognizing the "authority" to enact such laws, he only recognizes that states may do so against the will of the country. Once the amendment exists, the action of a state in that manner is the essence of an unlawful act with penalties for noncompliance.

I agree that Sen. Howard offers a different view from that introduced in the House, but it is not uncommon in political speech to soften the intent before the legislative body and provide political cover for those who might otherwise be disposed to vote against the measure.

[muon2]

Where Emsworth is in error, is his belief that inclusion of the 2nd section means that equal protection and due process do not apply to voting rights.

I would again have to respectfully disagree. I have already pointed out that the beliefs expressed by Representative Stevens and Senator Howard (the men who introduced the amendment in their respective houses) tally with mine. But, I will add some more evidence, if what I have posted so far is not convincing enough:

"The second section excludes the conclusion that, by the first section, suffrage is ... [no longer] exclusively under the control of the States." (Rep. John Bingham)

"Now, conceding to each State the right to regulate the right of suffrage, they ought not to have a representation for male citizens not less than twenty-one years of age, whether white or black, who are deprived of the exercise of suffrage. This amendment will settle the complication in regard to suffrage and representation, leaving each State to regulate that for itself, so that it will be for it to decide whether or not it shall have a representation for all its male citizens not less than twenty-one years of age." (Rep. George Miller)

"If you deny to any portion of the loyal citizens of your State the right to vote for Representatives, you shall not assume to represent them, and, as you have done for so long a time, misrepresent and oppress them. This is a step in the right direction, and although I should prefer to see incorporated into the Constitution a guarantee of universal suffrage, as we cannot get the required two-thirds for that, I cordially support this proposition as the next best." (Rep. John Farnsworth)

"But I will again venture the opinion that it [the second section] means as if it read thus: no State shall be allowed a representation on a colored population unless the right of voting is given to the negroes -- presenting to the States the alternative of loss of representation or the enfranchisement of the negroes, and their political equality." (Sen. Thomas Hendricks)

"I should be much better satisfied if the right of suffrage had been given at once to [negroes] ... Believing that this amendment probably goes as far in favor of suffrage to the negro as is practicable to accomplish now, and hoping it may in the end accomplish all I desire in this respect, I shall vote for its adoption, although I should be glad to go further." (Sen. Luke Poland)

"[The second section] concedes to the States ... not only the right, but the exclusive right, to regulate the franchise ... It says that each of the southern States, and, of course, each other State in the Union, has a right to regulate for itself the franchise, and that consequently, as far as the Government of the United States is concerned, if the black man is not permitted the right to the franchise, it will be a wrong (if a wrong) which the Government of the United States will be impotent to redress." (Sen. Reverdy Johnson)

In short, as these self-explanatory statements make clear, states (under the Fourteenth Amendment) have an alternative between less congressional representation and universal suffrage. They are not in any way, shape, or form forced to offer universal suffrage by the equal protection clause.

I agree that the states are faced with an alternative between representation and suffrage. Many of the quates you cite clearly show me that the intent is to compel the states to grant suffrage. This is very much like the federal regulation of the drinking age through transportation funding.  Congress clearly saw that as enacting a national drinking age, though they left the states a "choice". In both cases Congress saw the wayward states as wrong.

In the specific case of Florida, I would argue that Florida did not choose to disenfranchise any voters, and the state argued that is was not disenfranchising voters. Thus, it cannot be said that Florida was willing to give up representation, and exercise its prerogative under section 2. The Court found that its method was inconsistent with the state's intent to provide full franchise.

[muon2]

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It is most certainly entitled to do so, if it is willing to forfeit a portion of its congressional representation.

But this hypotheticcal assumes a concious choice on the part of the state. The compromise you cite for the form of section two was to provide a penalty for the wrong choice. There is a fundamental difference in a state choosing to exclude those citizens whose last names begin with an E, and an unintentional exclusion of that group, say for example by a computer glitch printing the voting lists.

This distinction is important and leads me to the paragraph I posted earlier:

In the specific case of Florida, I would argue that Florida did not choose to disenfranchise any voters, and the state argued that is was not disenfranchising voters. Thus, it cannot be said that Florida was willing to give up representation, and exercise its prerogative under section 2. The Court found that its method was inconsistent with the state's intent to provide full franchise.

[muon2]

But this hypotheticcal assumes a concious choice on the part of the state. The compromise you cite for the form of section two was to provide a penalty for the wrong choice. There is a fundamental difference in a state choosing to exclude those citizens whose last names begin with an E, and an unintentional exclusion of that group, say for example by a computer glitch printing the voting lists.

The Fourteenth Amendment makes no distinction between intentional and accidental denial of the right to vote. As long as the right is denied, or in any way abridged, the state stands to lose representation. Whether a state does so willingly or inadvertently is not relevant.

Because a distinction is not articulated does not mean that it doesn't exist. The judiciary does have a role to play in identifying exactly this type of distinction from the facts. Much of our criminal code relies on the judiciary to perform this function. I cannot accept that this makes all such action by the judiciary unconstitutional.

[muon2]

Because a distinction is not articulated does not mean that it doesn't exist. The judiciary does have a role to play in identifying exactly this type of distinction from the facts.

The judiciary is not entitled to make up distinctions that do not exist in the Constitution. Which part of the law of the land gives them such authority?

The US Constitution is an intentionally spare document as opposed to the detailed civil constitutions found in many other countries. Under the traditions of our judicial system there is room for common law interpretation. Your view would seem to imply that the Constitution and amendments be treated as a civil law document where common law principles such as stare decisis do not apply.