Whose Equal Protection?

The majority pins its ideological power grab on specious equal protection claims while real disenfranchisement by the likes of Secretary Harris went on with very little comment.



Whose Equal Protection?
URL: http://monkeyfist.com/SupremeCourt/1999-2000/bush-v-gore.pdf
By Kendall Clark


     The most important thing we do is not doing. -- Justice Brandeis
     
     Federal courts defer to state high courts' interpretation of
     their state's own law. This principle reflects the core of
     federalism, on which all agree...THE CHIEF JUSTICE's solicitude
     for the Florida Legislature comes at the expense of the more
     fundamental solicitude we owe to the legislature's
     sovereign...Were the other members of this Court as mindful as
     they generally are of our system of dual sovereignty, they would
     affirm the judgment of the Florida Supreme Court. -- Justice
     Ginsburg's Bush v. Gore dissenting opinion
     
     In the long run it is the majority who will determine what the
     constitutional rights of the minority are. I realize that it is
     an unpopular and unhumanitarian position, for which I have been
     excoriated by liberal colleagues, but I think Plessy v. Ferguson
     the legal foundation for mandatory racial segregation was right
     and should be re-affirmed. -- William Rehnquist
     
   It should come as no surprise that the author of such a naked,
   odious celebration of white privilege would not only act to install
   George W. Bush as president but do so at the risk of
   disenfranchising American voters. The least of what Rehnquist,
   Scalia, Thomas, O'Connor, and Kennedy have done is to give the
   presidency -- as it now seems likely they have done -- to Bush; in
   so doing they've damaged the Court, the judicial branch, and treated
   with contemptible indifference gains achieved by a hundred years of
   mass struggle.
   
   The disenfranchisement of Floridians (meliorated only by being
   temporary and unintended), many of whom, one may safely assume, are
   African Americans and women assaults directly whatever goodness,
   decency, and plain sense remains in this country. The franchise, as
   the Chief Justice well knows, did not come cheaply, either to women
   or to African Americans, in large part because of generations of
   white men precisely like Rehnquist, including Rehnquist. The costs
   of no franchise were countless moments and, thus, lives of
   humiliation, indignity, and impotence; the costs of winning the
   franchise were countless lives and, thus, moments of struggle,
   defiance, and hard work. We should be as loathe to fail to count the
   votes of American citizens as we are to do nearly anything else. In
   the civic religion of American democracy, perhaps yet an idea with
   some purpose, disenfranchisement, next to abrogation of freedom of
   speech, is Original Sin. To sacrifice the franchise for the sake of
   partisan advantage or expedience cheapens us all.
   
   As Justice Stevens -- with Justices Ginsberg, Brewer, and Souter,
   among the only decent actors in this farce -- wrote in his dissent,
   
     In the interest of finality, however, the majority effectively
     orders the disenfranchisement of an unknown number of voters
     whose ballots reveal their intent -- and are therefore legal
     votes under state law -- but were for some reason rejected by
     ballot-counting machines
     
   Or, far worse, intentionally, immorally rejected by Secretary
   Harris' grotesque use of lists of faux-felonious citizens, half of
   whom were black. As the London Observer reported, conspicuously
   unreported by US media,
   
     Harris's office had ordered the elimination of 8,000 Florida
     voters on the grounds that they had committed felonies in other
     states. None had. Harris bought the bum list from a company
     called ChoicePoint, a firm whose Atlanta executive suite and
     boardroom are filled with Republican funders. ChoicePoint, we
     have learned, picked up the list of faux felons from state
     officials in - ahem - Texas. In fact, it was a roster of people
     who, like their Governor, George W, had committed nothing more
     than misdemeanours.
     
   That a state official, even from the negligibly sane Republic of
   Florida, would act in so blatantly hostile a manner, imperiling the
   most fundamental civic right afforded to Americans under law, is
   proof enough that disenfranchisement remains embattled, tenuous, and
   in need of the Court's highest protection.
   
   Rather, as Justice Ginsburg's dissent makes clear, the Court has
   created the very conditions it now spurns. ``In sum,'' she writes,
   ``the Court's conclusion that a constitutionally adequate recount is
   impractical is a prophecy the Court's own judgment will not allow to
   be tested. Such an untested prophecy should not decide the
   Presidency of the United States.''
   
   As Justice Brewer wrote in his dissent, ``we do risk a
   self-inflicted wound -- a wound that may harm not just the Court,
   but the Nation...What it does today, the Court should have left
   undone.'' I could not agree more.


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Posted on Monkeyfist at http://monkeyfist.com/articles/725