Post-Election Nightmare?
Good piece by Loyaola (L.A.) Prof. Richard Hasen in Slate on possible ways the 2004 election could be decided in the Supreme Court. Again.
I am particularly interested in Scenario No. 3, Colorado's Electoral College referendum. I think Rehnquist, Scalia, and Thomas were correct in Bush v. Gore. Art. II of the Constitution directs that state legislatures alone have constitutional authority to determine how to allocate electors, and whether or not the Colorado referendum becomes important to the outcome of the election, I am interested in seeing how this issue plays out in the courts. Typically, constitutional mandates of procedure do not cause controversy. The president must be 35 years old (lunar or solar calendar?). Each state gets two senators. Etc. The Art. II argument seems to me the same. Why this argument did not win a majority in Bush v. Gore is beyond me.
I can't tell you how much this stuff interests me. I have a friend who was in the thick of the Bush v. Gore litigation, and listening to him recount the 2000 battle, as nightmarish as a repeat may be, gets my adrenaline pumping. The Bush folks really felt they were trying to combat a Democrat coup d'état! And I have no doubt those on the Gore side felt the same. How I wish I could have been there!
I am particularly interested in Scenario No. 3, Colorado's Electoral College referendum. I think Rehnquist, Scalia, and Thomas were correct in Bush v. Gore. Art. II of the Constitution directs that state legislatures alone have constitutional authority to determine how to allocate electors, and whether or not the Colorado referendum becomes important to the outcome of the election, I am interested in seeing how this issue plays out in the courts. Typically, constitutional mandates of procedure do not cause controversy. The president must be 35 years old (lunar or solar calendar?). Each state gets two senators. Etc. The Art. II argument seems to me the same. Why this argument did not win a majority in Bush v. Gore is beyond me.
I can't tell you how much this stuff interests me. I have a friend who was in the thick of the Bush v. Gore litigation, and listening to him recount the 2000 battle, as nightmarish as a repeat may be, gets my adrenaline pumping. The Bush folks really felt they were trying to combat a Democrat coup d'état! And I have no doubt those on the Gore side felt the same. How I wish I could have been there!
It seems a bad way of doing things, to have a referendum on the ballot which will affect that ballot. The argument, presumably, is that the Colorado constitution gives powers to the state citizens to change things, whether their legislature wants to or not. The idea of popular sovereignty was always that the people could force the government to do what it would never do itself.
In other words, the referendum is a higher authority than the legislature and thus ought to trump the legislature. Or something like that: still hard to get around the Article II problem. I hope the Colorado referendum loses: if they want to change how their electoral votes are distributed, that's their concern, but it shouldn't be during an election year.
For the sake of our democratic presidential elections, I'm glad Gore lost the SCOTUS appeal. I also hope it doesn't happen again: every time it does makes it more likely to happen again.
A-Train | Email | 10.19.04 - 12:24 pm | #
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i'm glad your finding things that get your adrenaline pumping.....it's good for you! seriously.
haloquest | 10.19.04 - 9:04 pm | #
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Posted by
philip |
October 21, 2004 2:43 PM