| . Politics
& Government The
State of Things: The Argument & the Decision
-- No. 00-949,
George W.
Bush and Richard Cheney versus Albert Gore et al. Well,
it's finally over ... or finally about to begin anew, depending upon how
you view it. ... George Walker Bush will become
the 43rd President of these United States. Al Gore, after
admonishing his supporters to support the new administration and unite,
will return to Tennessee and try to "mend some fences." In
the meanwhile, Constitutional lawyers will try to figure out, not only the
text and meaning of the Supreme Court's pro curiam decision, but
what it might imply for future cases that will now need to be heard as a
consequence. And finally, politicians both state and federal, as
well as citizen advocacy groups and others, will be looking closely at the
ruling themselves, in order to clarify an agenda for voting rights and
voting process reforms that promise to make history. But
what was it all about actually? And why will the Court's decision
almost inevitably affect essential voting reforms? ... Most
Americans probably realize that cases are heard before the Supreme when
they involve constitutional questions. But how many of us know the
full extent of the highest Court's jurisdiction? Moreover, the Bush
team pressed the question of "Article II," but how many have any
idea, even after all the media coverage, of what Article II of the U.S.
Constitution is about? And what about the Section 5 referred to by
Bush & Cheney's lawyer at the outset of the hearing? As
a public service for those who realized that the events of the first half
of December were of considerable importance to democracy, the republic,
the constitution, and the entire future of American politics, we offer the
following: Opening
of the Supreme Court's Hearing of 00-949 ...
{For
full text of the hearing of 00-949, click here.} JUSTICE
REHNQUIST: (Sounds gavel.) We'll hear argument now on No. 00-949, George
W. Bush and Richard Cheney versus Albert Gore et al.
Before we begin the arguments, the Court wishes to commend all of the
parties to this case on their exemplary briefing under very trying
circumstances. We greatly appreciate it.
Mr. Olson. MR.
OLSON: Mr. Chief Justice, thank you, and may it please the Court. Just one
week ago, this court vacated the Florida Supreme Court's November 21
revision of Florida's Election Code, which had changed statutory
deadlines, severely limited the discretion of the nullity. JUSTICE :
Mr. Olson -- JUSTICE KENNEDY: Can you begin by telling us our
federal jurisdiction? Where's the federal question here? MR. OLSON: The
federal question arises out of the fact that the Florida Supreme Court was
violating Article II, Section 1 of the Constitution and it was conducting
itself in violation of Section 5 of Title III of the federal law.
... [Italics added.] Article
II, Section 1 of the U.S. Constitution
{For
full text of the original U.S. Constitution, click here.} The
executive Power shall be vested in a President of the United States of
America. He shall hold his Office during the Term of four Years, and,
together with the Vice President, chosen for the same Term, be elected, as
follows: Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole Number of
Senators and Representatives to which the State may be entitled in the
Congress: but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an Elector. The
Electors shall meet in their respective States, and vote by Ballot for two
Persons, of whom one at least shall not be an Inhabitant of the same State
with themselves. And they shall make a List of all the Persons voted for,
and of the Number of Votes for each; which List they shall sign and
certify, and transmit sealed to the Seat of the Government of the United
States, directed to the President of the Senate. The President of the
Senate shall, in the Presence of the Senate and House of Representatives,
open all the Certificates, and the Votes shall then be counted. The Person
having the greatest Number of Votes shall be the President, if such Number
be a Majority of the whole Number of Electors appointed; and if there be
more than one who have such Majority, and have an equal Number of Votes,
then the House of Representatives shall immediately chuse by Ballot one of
them for President; and if no Person have a Majority, then from the five
highest on the List the said House shall in like Manner chuse the
President. But in chusing the President, the Votes shall be taken by
States, the Representatives from each State having one Vote; a quorum for
this Purpose shall consist of a Member or Members from two thirds of the
States, and a Majority of all the States shall be necessary to a Choice.
In every Case, after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the Vice President. But
if there should remain two or more who have equal Votes, the Senate shall
chuse from them by Ballot the Vice President. The Congress may determine
the Time of chusing the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout the United States. No
Person except a natural born Citizen, or a Citizen of the United States,
at the time of the Adoption of this Constitution, shall be eligible to the
Office of President; neither shall any person be eligible to that Office
who shall not have attained to the Age of thirty five Years, and been
fourteen Years a Resident within the United States. In Case of the
Removal of the President from Office, or of his Death, Resignation, or
Inability to discharge the Powers and Duties of the said Office, the Same
shall devolve on the Vice President, and the Congress may by Law provide
for the Case of Removal, Death, Resignation or Inability, both of the
President and Vice President, declaring what Officer shall then act as
President, and such Officer shall act accordingly, until the Disability be
removed, or a President shall be elected. The President shall, at stated
Times, receive for his Services, a Compensation, which shall neither be
encreased nor diminished during the Period for which he shall have been
elected, and he shall not receive within that Period any other Emolument
from the United States, or any of them. Before he enter on the Execution
of his Office, he shall take the following Oath or Affirmation:--''I do
solemnly swear (or affirm) that I will faithfully execute the Office of
President of the United States, and will to the best of my Ability,
preserve, protect and defend the Constitution of the United States.'' Title
3, Section 5 of U.S. Code {"Safe Haven"} 3
USC Sec. 5 01/23/00 -EXPCITE-
TITLE 3 -
THE PRESIDENT
CHAPTER 1 - PRESIDENTIAL ELECTIONS AND VACANCIES -HEAD-
Sec.
5. Determination of controversy as to appointment of electors -STATUTE-
If
any State shall have provided, by laws enacted prior to the
day fixed
for the appointment of the electors, for its final
determination of any
controversy or contest concerning the
appointment of all or any of the
electors of such State, by
judicial or other methods or procedures, and
such determination
shall have been made at least six days before the
time fixed for
the meeting of the electors, such determination made
pursuant to
such law so existing on said day, and made at least six
days prior
to said time of meeting of the electors, shall be
conclusive, and
shall govern in the counting of the electoral votes as
provided in
the Constitution, and as hereinafter regulated, so far as
the
ascertainment of the electors appointed by such State is concerned. -SOURCE-
(June
25, 1948, ch. 644, 62 Stat. 673.) Excerpts from
the U.S. Supreme Court Opinion on 00-949.
{For
the full text of the U.S. Supreme Court Opinion on 00-949 click here.}
{It's
a *.pdf document, so you'll need to have the Adobe Acrobat Reader
installed.} Per Curiam
[Note: literally,
"by the court"] I. ...
The petition presents the following questions: whether the Florida
Supreme Court established new standards for resolving Presidential
election contests, thereby violating Art. II, §1, cl. 2, of the United
States Constitution and failing to comply with 3 U. S. C. §5, and
whether the use of standardless manual recounts violates the Equal
Protection and Due Process Clauses. With respect to the equal protection
question, we find a violation of the Equal Protection Clause. II.
B.
The individual citizen has no federal constitutional right to vote for
electors for the President of the United States unless and until the
state legislature chooses a statewide election as the means to implement
its power to appoint members of the Electoral College. ...
When the state legislature vests the right to vote for President in its
people, the right to vote as the legislature has prescribed is
fundamental; and one source of its fundamental nature lies in the equal
weight accorded to each vote and the equal dignity owed to each voter.
The State, of course, after granting the franchise in the special
context of Article II, can take back the power to appoint
electors. ...
The right to vote is
protected in more than the initial allocation of the franchise. Equal
protection applies as well to the manner of its exercise. Having once
granted the right to vote on equal terms, the State may not, by later
arbitrary and disparate treatment, value one per-son's vote over that of
another. ...
There is no difference
between the two sides of the present controversy on these basic
propositions. Respondents say that the very purpose of vindicating the
right to vote justifies the recount procedures now at issue. The
question before us, however, is whether the recount procedures the
Florida Supreme Court has adopted are consistent with its obligation to
avoid arbitrary and disparate treatment of the members of its
electorate. ...
... The recount
mechanisms implemented in response to the decisions of the Florida
Supreme Court do not satisfy the minimum requirement for non-arbitrary
treatment of voters necessary to secure the fundamental right.
Florida’ s basic command for the count of legally cast votes is to
consider the “intent of the voter.” Gore v. Harris, ___ So. 2d, at
___ (slip op., at 39). This is unobjectionable as an abstract
proposition and a starting principle. The problem inheres in the absence
of specific standards to ensure its equal application. The formulation
of uniform rules to determine intent based on these recurring
circumstances is practicable and, we conclude, necessary.
... The recount process, in its features here described, is
inconsistent with the minimum procedures necessary to protect the
fundamental right of each voter in the special instance of a statewide
recount under the authority of a single state judicial officer. Our
consideration is limited to the present circumstances, for the problem
of equal protection in election processes generally presents many
complexities.
The question before the Court
is not whether local entities, in the exercise of their expertise, may
develop different systems for implementing elections. Instead, we are
presented with a situation where a state court with the power to assure
uniformity has ordered a statewide recount with minimal procedural
safeguards. When a court orders a statewide remedy, there must be at
least some assurance that the rudimentary requirements of equal
treatment and fundamental fairness are satisfied. ... [Note:
This last paragraph will likely be the point around which subsequent
suits brought will turn. In essence, the Pro Curiam opinion here
seems to suggest that The Court has no intention of mandating uniformity
from district to district or precinct to precinct. Instead, the
opinion is based on the fact of the Florida State Supreme Court's
failure to stipulate minimum requirements that would have "at least
some assurance" of equal protection.
On
this note, is there anyone out there who knows enough about
constitutional law in general and voting federal rights in USC to
comment on this?]
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