Bush v. Gore

[○∙◄☻¥tπ[╪AV┼cVê└]

Date JFK was awarded Hawaii's electors: January 2nd, 1961

It should be noted that, under federal law, the safe-harbor date is not a mandatory date. A state can, if it so pleases, name electors after this date.

The laws of Florida, as interpreted by the Supreme Court of Florida, require that the electors be named before the safe-harbor date. The laws of Hawaii do not. Therefore, what Hawaii may or may not have done in 1961 is irrelevant.

So how does this justifying over-ruling the Supreme Court of Florida, and forcing them to stop the recount 3 days before the non-binding deadline?

[Emsworth]

So how does this justifying over-ruling the Supreme Court of Florida, and forcing them to stop the recount 3 days before the non-binding deadline?

Obviously, it does not. The injunction is clearly indefensible.

[Speed of Sound]

wow. Right now its 50/50.

BTW, unsound (O)

[jimrtex]

I would further note that the due process clause most certainly does not guarantee voting rights to anybody. Firstly, the clause provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law." The right to vote is not life, it is not liberty, and it is not property. Accordingly, it is difficult to argue that voting rights are covered by this clause.

The ability to participate in the selection of the government is quintessential to the exercise of liberty.

You must be logged in to read this quote.

The state can not act in a capricious or arbitrary manner with respect to voting.  The right to vote entails more than simply being able to drop a ballot in a box.   It requires that the ballot be counted in a timely manner, and interpreted in a consistent manner with other ballots as well.
May a State deny drivers licenses to persons based on their race?

[A18]

The Due Process Clause simply commands that the government must proceed according to the law of the land.

If the Equal Protection Clause applies to anything, it most certainly applies to racial discrimination. Given that a separate amendment was necessary to extend the franchise to blacks, it is quite obvious that "equal protection of the laws" was not understood to encompass the right to vote.

[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.

[Beet]

There is no such thing as a "right to vote." Ideally, the governors of respective states would be able to appoint presidential electors personally, rather than having to go through the faulty process of popular balloting.

[Emsworth]

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 words of Representative Farnsworth, proponents of black suffrage could not "get the required two-thirds" in 1866. Section 2 was adopted as a compromise: the states would be allowed to deny the vote to African-Americans, but would lose representation as a result. Obviously, the intention of Section 2 was to indirectly compel a grant of voting rights. But just as states are allowed to choose between less transportation funding and a higher drinking age, they were also allowed to choose between less representation and more suffrage. There is nothing in the law that prevents a state from opting for less transportation funding, just as there is nothing in the Constitution that prevents a state from opting for less representation.

The equal protection clause, therefore, cannot be interpreted as requiring states to give African-Americans (or anyone else) the right to vote.

The state can not act in a capricious or arbitrary manner with respect to voting.

Why not?

You must be logged in to read this quote.

The Constitution explicitly mentions that states are not allowed to deny the right to vote for certain specific reasons (e.g., race, sex, or failure to pay a poll tax). But states are allowed to deny the right for any other reason whatsoever.

Furthermore, under Article II, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." There is nothing in Article II that requires states to use popular voting to choose electors. If the state of Florida wishes to use a "capricious or arbitrary" system to choose its electors, it can most certainly do so.

[J. J.]

Let me do a quick summary of the Bush v. Gore decision.

On December 9th, 2000, in a 5-4 ruling, they issued a stay ending the recount.
On December 12th, 2000, they noted that somehow the recount hadn't finished by that day's non-binding deadline, and so ended in a 5-4 ruling said that the recount was ended, there can be no more recounts, and that the pre-recount numbers must be used (which caused Bush to "win" by 537 votes instead of 180 or so when the recount was ended).

Let's a more complete quick summary.  Election Day:   November 7, 2000.  Date Harris wanted to certify the election:  November 18, 2000.

Harris doesn't determine sh**t.
Date 1876 election decided: March 2nd, 1877
Date JFK was awarded Hawaii's electors: January 2nd, 1961

The problem is, you cannot file for a recount until the election is certified, so delay it, delayed the time for a recount.  The certification would not have finalized the election, because Gore (or Bush for that matter) could then have petitioned for a recount.

The safe harbor provision wasn't in statute at the time, so 1877 is totally irrelevant.

Nixon did not challenge the recount in HA; in fact, there were no challenges to it in Congress.  Such a challenge might have invalidated them.  Gore was the one challenging everything in 2000.

Had Gore not challenged everything, the effect would have been about nine more days for a recount.

Wrong, it was Bush who was challenging things in federal court, not Gore.

Well, if were bright enough to realize what I was saying, you'd realize that didn't make any difference.  One of the grounds that the court ruled was that it was now too late to do a recount.  That ground would not have been there had the certification taken place on 11/18/00.  It would have sped up the entire process by nine days.  The court could not have rules on  12/9 to stop the recount because of the time factor.

They may have ruled that standards should be set, but they might have ruled it on 11/29/00 or so.  There would have been enough time to do a full recount and meet the safe harbor deadline.

The question of why Gore blocked the certification is like one of why Kerry didn't release his military records.

Keep one other thing in mind, I, for one, would have supported a full recount, if it could have been done prior to the safe harbor date.

[jimrtex]

The state can not act in a capricious or arbitrary manner with respect to voting.

Why not?

It would deny equal protection of the law to some citizens.

For example, a state could not direct that all precincts which supported the Republican candidate in Year X, would be open for voting only from 3 am to 5 am in Year X+2.

You must be logged in to read this quote.

The Constitution explicitly mentions that states are not allowed to deny the right to vote for certain specific reasons (e.g., race, sex, or failure to pay a poll tax). But states are allowed to deny the right for any other reason whatsoever.[/quote]
The state would have to demonstrate a reasonable reason for discriminating against some citizens.  For example, those under 18 may not have the maturity to vote.  The state can't simply deny the right to vote to people whose name begins with "E".

You must be logged in to read this quote.

You have inserted a quote from me out of context.  Florida may indeed choose the method by which its electors are chosen.  Since Congress has set the date that the electors are chosen, Florida must determine the method in advance.

Florida had decided that the electors would be chosen by popular vote (elector candidates running as an at large slate under the banner of a party and its presidential and vice-presidential candidate.  Once, that decision had been made, Florida was obligated to not conduct that popular election in a arbitrary or capricious manner.

[A18]

What was the 'reasonable reason' for discriminating on the basis of race or sex? Of course, 'reasonableness' just depends on what you're trying to do: it's a matter of subjective normatives.

[Emsworth]

The assertion that the equal protection clause pertains to voting rights is, in my opinion, completely invalid. I feel, with all due respect, that I have conclusively demonstrated that clause, as originally understood, did not cover voting rights.

I repeat my earlier, still-unanswered question: why did Congress pass the Fifteenth Amendment, if the equal protection clause already forbade discrimination with respect to voting rights?

You must be logged in to read this quote.

Either the equal protection clause allows discrimination, or it prohibits discrimination. The clause does not provide, "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws unless there is a 'reasonable reason' to do so."

You must be logged in to read this quote.

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

[muon2]

You must be logged in to read this quote.

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.

[Emsworth]

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.

[jimrtex]

The assertion that the equal protection clause pertains to voting rights is, in my opinion, completely invalid. I feel, with all due respect, that I have conclusively demonstrated that clause, as originally understood, did not cover voting rights.

What did it cover (as originally understood)?  What liberties are protected by the 14th Amendment?

Could a state deny driver's licenses to citizens on the basis of race?

You must be logged in to read this quote.

Because the Republicans had a bigger majority than when the 14th Amendment was passed.

You must be logged in to read this quote.

Either the equal protection clause allows discrimination, or it prohibits discrimination. The clause does not provide, "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws unless
there is a 'reasonable reason' to do so."
How about a compelling state interest.

You must be logged in to read this quote.

It is most certainly entitled to do so, if it is willing to forfeit a portion of its congressional representation.
[/quote]
Can Wyoming deny the right to vote to all but 100 persons, and not suffer any penalty?

[Emsworth]

What did it cover (as originally understood)?  What liberties are protected by the 14th Amendment?

Everything, except the right to vote.

You must be logged in to read this quote.

The compelling state interest standard isn't mentioned in the amendment either. But in any event, what exactly is a "compelling state interest"?

You must be logged in to read this quote.

Of course, although if its overall population were to increase, then it would suffer a loss of representation.

[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.

[Emsworth]

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?

[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.

[Emsworth]

[quote author=muon2 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.
[/quote]
Even in common-law countries, the judiciary does not have the power to make law. Its role still consists of interpreting already-existing law, whether that law is statutory (Acts of Parliament) or customary (common law). In common-law countries as well as civil-law countries, if the law does not contain an exception, the judiciary is not permitted to make one up. Certainly, the judiciary is allowed to deviate from the literal meaning of the words, but it can only do so in accordance with strict rules of construction and interpretation, not at the whim of a few judges. If any particular rule of construction or interpretation justifies refusing to read Section 2 of Amendment 14 literally, then fine, but so far no such justification has been provided.

Moreover, while stare decisis plays an extremely important role in interpreting customary law, and a somewhat important role in interpreting statutes, its role in interpreting the Constitution is not necessarily very significant. The Supreme Court has itself acknowledged this fact. Stare decisis, to quote Justice Brandeis, "has only a limited application in the field of constitutional law." In Seminole Tribe of Florida v. Florida, the Court noted, "Our willingness to reconsider our earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible."

[jimrtex]

The assertion that the equal protection clause pertains to voting rights is, in my opinion, completely invalid. I feel, with all due respect, that I have conclusively demonstrated that clause, as originally understood, did not cover voting rights.

Haven't the standards of what constitutes liberty evolved since the mid 19th century?

You must be logged in to read this quote.

Because the 2nd section of the 14th Amendment was a misguided attempt to preserve the 3/5 rule of the original Constitution.  Congress belatedly (less than a year passed between ratification of the 14th, and submission of the 15th for ratification) recognized that it was sheer folly and inconsistency of:

1) Discrimination could not not occur in all other areas (e.g. denial of licenses on the basis of race);

2) State legislatures were forbidden from passing legislation that so discriminated;
 
3) Congress had the responsiblity and the power to enforce this non-discrimination;

4) If a state chose to deny the right to participate in the election of its legislature (the body charged with not discriminating), then those persons would also be denied the right to participate in the election of Congress (the body charged with enforcing the non-discrimination), and that this would be compounded by eliminating representation in Congress.

If government derives its just powers from the consent of the governed, can it claim legitimacy if it actively denies the right of the governed to exercise their consent?

You must be logged in to read this quote.

It is most certainly entitled to do so, if it is willing to forfeit a portion of its congressional representation.
[/quote]
How can people whose name begins with "E" secure their life, liberty, and property if they are denied the right to vote?

[J. J.]

Because the 2nd section of the 14th Amendment was a misguided attempt to preserve the 3/5 rule of the original Constitution. 

The 3/5 rule actually would have hurt any state that tried to enact it.

Let's say that one representative could be elected per 100,000 residents, at least.  State A has 1,000,000 inhabitants.  Let's say that 40% are ex-slaves, 400,000.  They'd 6 Reps for the 600,000 "Old Free" population, plus 2 for the "Ex Slave" population.  It if was one to one, it would be 10.  The Southern states were not going to cut their own congressional representation.

[Emsworth]

Haven't the standards of what constitutes liberty evolved since the mid 19th century?

The Constitution authorizes only one method of changing its meaning: the amendment process. Whether the standards of what constitutes liberty have evolved is irrelevant to the original meaning of the Constitution.

You must be logged in to read this quote.

Could you provide evidence for that statement? Which statements indicate that Congress was attempting to preserve the three-fifths rule (which was actually abolished, as there were no more "other persons" left.)

You must be logged in to read this quote.

The Constitution does not require state governments or the federal government to be capable of claiming legitimacy.

You must be logged in to read this quote.

Firstly, I do not see how voting is connected with securing one's life. Are you contending that, because children are denied the right to vote, their life is insecure?

Secondly, it must be remembered that the due process clause applies not only to citizens but also to aliens. The state cannot deprive an alien of life, just as it cannot deprive a citizen of life, without due process of law. Under your argument, aliens have the right to vote, because if it were denied, they would be unable to secure their lives.

Finally, and most importantly, there is no constitutional right to secure one's life, liberty, or property. A person only has the right to not have the state deprive him of life, liberty, or property, without due process of law. Voting has no relation to this requirement.

[jimrtex]

Haven't the standards of what constitutes liberty evolved since the mid 19th century?

The Constitution authorizes only one method of changing its meaning: the amendment process. Whether the standards of what constitutes liberty have evolved is irrelevant to the original meaning of the Constitution.

The Constitution has always been subject to interpretation by Congress and the Supreme Court.  The 14th Amendment does not define "liberty".

You must be logged in to read this quote.

Could you provide evidence for that statement? Which statements indicate that Congress was attempting to preserve the three-fifths rule (which was actually abolished, as there were no more "other persons" left.)[/quote]
Section 2 of the 14th Amendment includes a rewrite of the apportionment language of Article I, Section 2.  The original language did not provide full representation for slaves, in part because they could not vote.  The language in 14th Amendment would have denied representation for former slaves in any state that chose to disenfranchise them.  Perhaps I could have written "preserve the underlying principle ..."

It was obviously misguided, since Congress within 7 months of its ratification proposed another amendment that prevented disenfranchisement of the class of people most likely to trigger Section 2.

You must be logged in to read this quote.

The Constitution does not require state governments or the federal government to be capable of claiming legitimacy.[/quote]
What gives the Constitution legitimacy?

You must be logged in to read this quote.

Firstly, I do not see how voting is connected with securing one's life. Are you contending that, because children are denied the right to vote, their life is insecure?[/quote]
Their parents can vote.  If Blacks are denied the right to vote, are their liberties secure?

You must be logged in to read this quote.

How can there be due process, when the processees are denied a voice in the selection of the processors?

[Emsworth]

The Constitution has always been subject to interpretation by Congress and the Supreme Court.  The 14th Amendment does not define "liberty".

But the word "liberty," as well as the terms "due process" and "equal protection," had certain meanings when the Fourteenth Amendment was ratified. The courts should adhere to the same meaning today. Otherwise, they would be substituting their own views for those of the country, which ratified the amendment.

You must be logged in to read this quote.

So you admit that, under the equal protection clause, disenfranchisement was permissible?

You must be logged in to read this quote.

The concept of "legitimacy" is an arbitrary and irrelevant one.

You must be logged in to read this quote.

No, but as long as the denial is pursuant to "due process of law," the due process clause has not been violated.

You must be logged in to read this quote.

All the due process clause says is that individuals cannot be deprived of certain rights, except in accordance with the law of the land.