MAYBE PROFESSOR TRIBE WOULD REPRESENT ME (via John Resnik).

The Ninth Circuit Got It Right It's wrong to hold an election if some voters will be disfranchised (Laurence H. Tribe, opinionjournal.com, 9/18/03)

There is palpable hypocrisy in the complaints one hears about the Ninth Circuit Court of Appeals' decision in the California gubernatorial recall. People moaned and groaned about a hanging chad here and a dimpled chad there in Florida in the election of 2000 and succeeded in getting the federal judiciary to throw away thousands of ballots still uncounted as of an arbitrary date (Dec. 12, 2000). Their complaint was with the randomly distributed risk that similar-looking ballots would be read differently at different times or places given that Florida law refused to impose any uniform and objective formula for translating ambiguously punched ballots into definite votes.

But these same people now treat as trivial or as merely speculative the far clearer and greater disparities between the parts of California where votes will be counted with precision and those parts of California where they'll be counted by an antiquated punch-card method that the secretary of state has already decertified as "archaic," "obsolete, defective, or otherwise unacceptable." The state itself has documented the defects in the punch-card voting machinery that is to be phased out by next March.

The evidence assembled by the state in support of its plan to eliminate punch cards by the next election--only to have the recall unexpectedly arise before then--shows that tens of thousands of votes will not be counted at all in the places still stuck with punch-card systems and that these denials will fall disproportionately on poor and minority counties. And, unlike the situation in 2000, when Congress was poised under Article II and the 12th Amendment to the Constitution to decide the winner of Florida's electoral votes if necessary, only the federal courts can prevent the massive disenfranchisement that California proposes to allow in October.

Accusations of palpable political hypocrisy are almost always palpably hypocritical. Liberals who have smugly pointed out the contradiction they see between being antiabortion but pro-execution tend to stammer a little and change the subject when asked why, if life is so precious that the state can't, after a trial, execute murderers, private citizens must be allowed the unfettered right to kill the most innocent. And Professor Tribe, of course, did not previously seem to understand the important rights being vindicated by Gore v. Bush.

But Professor Tribe does adhere to a higher consistency: he may be a Democrat, but he places no value on representative democracy. This comes through nowhere more clearly than his unique use of "arbitrary" to mean, "as set forth in statute." The people of California have decided to allow for recalls and they provided that the recall be held within a certain period, an obviously sensible precaution given the tendency of politicians to stiff the people. Professor Tribe couldn't care less.

In Gore v. Bush, the Supreme Court at least waited for trouble to come about. Here the Ninth Circuit is anticipating tha might not happen (that is, the "problem" of variously weighted votes might not make any difference at all, depending on the actual vote totals). Professor Tribe, though, weighed in again as if representative democracy was of no value at all. The Florida statutes were to be ignored in the face of the greater justice of electing his chosen candidate. It will be obvious to the readers of this blog how these positions are consistent with those "great" liberal court decisions Professor Tribe celebrates.

There is, however, at least one issue on which Professor Tribe is just being disingenous. He claims that the Ninth Circuit's precedent is limited because "the court . . . made clear that it wasn't ruling on differences that flow from, and may be justifiable in light of, local autonomy and home rule." Tribe is clear that, in his opinion, it is unconstitutional to hold an election if "everyone in any given state [doesn't] have the same chance to cast a vote that gets counted when it's the state that's running the entire election." But what about a national election. The federal government, no less than the states (ok, a lot more than the states) owes its citizens the equal protection of the laws. So how can a national election be held in which everyone doesn't have that same chance. And because it is, as a practical matter, impossible to assure every voter across the nation of that chance, how can we hold any elections at all?

Posted by David Cohen at September 18, 2003 9:52 PM