Courting Disaster
By Greg Guma
02 November, 2004
UPIFour years ago, five justices of the United States Supreme Court stopped the recount in Florida after a mere 36 days and made George W. Bush president.
This time, it won't be so easy.
The national divide is deeper and the lawsuits began before a single vote was cast. In Florida, for instance, where Secretary of State Glenda Hood told elections supervisors that they should reject incomplete voter registration forms, Democrats went to court on Oct. 7. They want a judge to make Hood reverse her instructions that counties should disqualify voters who fail to check a box confirming that they are U.S. citizens, even if they have signed an oath on the same form.
Hood's office is fending off more than a half-dozen legal challenges, and others are expected once the votes are cast.
The issues already range from ballot initiatives and how to handle recounts on electronic machines to the counting of provisional ballots. Legal fights also loom over early-voting sites and voter registration rules.
When Hood's office tried to exempt electronic machines from manual recount rules, a judge overruled her.
The NAACP is suing Florida's Volusia County elections supervisor, arguing that having only one early voting site in an area where minorities live disenfranchises blacks. State law requires county elections officials to offer early voting starting 15 days before an election. The voting can take place at elections offices, but if other sites are opened, they must be spread out evenly.
In Oregon, a criminal investigation is looking into charges that voter registration forms were destroyed or discarded by a political consulting firm working for the Republican National Committee.
The allegations involve a voter registration drive conducted by Sproul & Associates, a Phoenix-based consulting group hired by the Republican Party earlier this year and headed by Nathan Sproul, former executive director of the Arizona Republican Committee. Allegations that a Sproul associate destroyed or dumped Democratic registration forms have surfaced in several states.
Eric Russell, one of some 300 part-time Sproul group employees in Nevada, says he saw Democratic Party registrations destroyed. Retrieving shredded paperwork that included voter registration forms signed by Democrats, he took them to local election officials and confirmed that they had not been filed with the county, as required by law. In August, a Sproul employee in Charleston, W.Va., said she quit her job after being told to register only people who confirmed that they were supporting President Bush.
If such accusations are true, some voters who think they are registered could be surprised on Election Day.
One thing is sure: the courts are about to take center stage again, leading to endless discussions about "activist judges," "equal protection," following "precedents," and "judicial restraint." Yet, insiders say that the Supreme Court isn't eager to step in this time. An obvious reason is that its legitimacy is still under a cloud after Bush vs. Gore.
If the Supremes do step in, however, the admission by former court clerks that politics loomed large in the decision that originally put Bush in office may embolden the court's cautious liberals, Ruth Bader Ginsberg and Stephen Breyer. Not coincidentally they were Bill Clinton's two appointees. In Bush vs. Gore, they were joined in dissent by John Paul Stevens, a moderate appointed by Gerald Ford, and David H. Souter, appointed by Bush's father.
Souter is also one third of the court's centrist troika, which includes Reagan appointees Anthony Kennedy and Sandra Day O'Connor. Twelve years ago, this group revealed its power by upholding Roe vs. Wade as a protected "liberty" under the Constitution. Admitting that political factors underlay their opinion, they made the argument that "changed circumstances may impose new obligations" and that overturning Roe would create tremendous political and social turmoil.
On the other hand, Kennedy and O'Connor joined with the conservative triumvirate -- the combative Antonin Scalia, the equally partisan William Rehnquist, and their silent partner Clarence Thomas -- in the fateful Dec. 12, 2000 ruling. Yes, one vote can make all the difference.
In his dissent in that case, Stevens said the majority's choice played into the most cynical attitudes about judges, and would undermine public confidence. An understatement, it turns out.
"Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law," he wrote.
This time we have to know who really won, and more "judicial activism" is the last thing we need. Even without Scalia's fondness for hunting with GOP friends, suspicions about the independence and fairness of the courts have been growing for some time.
Echoing Scalia's dissent when his colleagues declined to overturn Roe, interference in the 2000 election "fanned into life an issue that has inflamed our national politics in general."
So, it may be tedious, but this time the counting and contesting should continue for as long as it takes. No one ever said democracy was a political fast food.
--
(Greg Guma edits the Vermont Guardian, a statewide weekly, and Toward Freedom. He can be reached at [email protected].)
