Posted on 09/15/2003 11:05:53 AM PDT by wcdukenfield
12/14/00 1:05 p.m. What We Have Wrought The costs of winning.
By Mark R. Levin, president, Landmark Legal Foundation
oday's Washington Post, in an article titled "Court May Have Mapped New Territory," reports that "The Supreme Court's ruling in Bush v. Gore could have implications well beyond this year's presidential election, expanding the constitutional guarantee of equal protection of the laws in a way that — if the court sticks to its analysis — could significantly increase the federal role in state election law disputes. By holding that the equal-protection clause can be applied to the way votes are counted, the court has potentially opened the door to new litigation that would test the constitutionality of many currently accepted state voting procedures."
John P. Elwood, a former law clerk to Justice Anthony M. Kennedy, tells the Washington Post that "It's a potentially momentous decision. This could be the voting rights equivalent of the Warren Court's famous rulings in defendants' rights cases of the 1960s, which opened up the previously state-controlled world of police stations and county courts to federal court scrutiny."
John Yoo, a professor of law at the University of California's Boalt Hall Law School, tells the Washington Post that "this is the first time the Supreme Court has said we'll get into what happens after the vote."
One can only imagine the kinds of federal lawsuits that will now be brought by disgruntled voters, whose candidates have lost elections, seeking to assert their new-found 14th amendment right. So what has the high court wrought? For example, does a federal cause of action exist if different ballots are used throughout a state; if different methods of voting are used in different counties; or if different methods of voting are used in different localities within a county? Does a federal cause of action exist if older voting machines are used in poor areas and newer machines are used in affluent areas? Where once federal courts were loath to get involved in elections — based on lack of standing and/or the separation of powers/political question doctrine — federal judicial intervention in state and federal elections may now become commonplace. Litigants will attempt to use the courts to overturn the results of elections.
The airwaves are full of liberal commentators attempting to "delegitimize" the U.S. Supreme Court's 5 to 4 decision in Bush v. Gore by alleging the Court is deeply divided along partisan lines. Many conservatives feel compelled to respond to this claim by pointing out that seven of the nine justices found Florida's practices violate the 14th amendment's equal-protection clause. Embracing an unsound constitutional position is not a principled defense. Robert Alt, in his earlier writing for National Review Online, provided the best answer: some of the U.S. Supreme Court's most notable rulings were decided by 5 to 4 majorities.
I believe George Bush's lawyers were reluctant to raise the equal-protection claim with the U.S. Supreme Court. But they had a duty to zealously represent their client, which they did with great skill and success. Moreover, it appears from their concurring opinion that Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas would have preferred to reverse the Florida supreme court on the basis of Article II, Section 1, Clause 2 of the U.S. Constitution and federal law, but Justices Anthony Kennedy and Sandra Day O'Connor would not sign on.
While Al Gore was rightly stopped from stealing the presidential election from George Bush, it came at a cost.
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