Equal Protection and the 2004 Presidential Election

Let's go back to November and December 2000. There was a huge controversy over the presidential election results in Florida since some ballots had "hanging chads". As you likely know, this situation was litigated directly to the Supreme Court with a decision coming down on Dec 12, 2000. The summary of this is that recount underway in Florida was stopped since it could not be finished in time for the December 18th meeting of the Electoral College. To refresh your memory, here's a New York Times article from Dec. 13th, 2000. The main reason I chose this article is that it goes into the many attached opinions on the Supreme Court decision. While I'm sure the NY Times editorial board was against the decision at the time, I think it's valuable to understand the internal struggles that the Court went through in making such an important decision. The NY Times provides good insight into that with the details from the separate opinions (which were attached to the majority opinion). If you haven't gotten it yet, I'm sort of a Supreme Court junkie :)

Whether or not you like the results of this, it seems like a good number of people believe the 2004 election will be decided in the courts again. I'll get to the likelihood of that in a bit, but first, let's look at the specific reasons given for stopping the recount in Florida. Bear with me for a bit....Above all, the Court said that Equal Protection in voting was a foundation of the decision. Equal protection in knowing the intent of the voter. At the time, the Court was referring to equal treatment of any recount of questionable ballots. The Court decided that a recount could not be completed with necessary equality and fairness by the December 18th cut-off date. Of course, there's a lot more depth to the decision, so please read the above article for all the nuances. But that's really what it came down to.

Now, the interesting thing about this is that Equal Protection had never before been brought up in the context of an election. But now that it has been brought up, I think it's a big Pandora's Box which will be duly ripped apart in the next week. At the time, the Court said that the deicision was limited ONLY to the Bush v. Gore decision, but realistically, precedent has been set and in the judicial system, precedent is very important for any subsequent cases. Now the other thing is that the Court referred to equal protection in knowing the intent of the voter after the fact. They didn't consider equal protection in the sense of polling places using the same methods for voting and vote counters using the same methods for counting votes.

So here's where I think we'll run into trouble with next week's elections. There are loads of people just ready to jump an any instance of possible unfairness or inequality and then bring the case to court under the equal protection clause. Now, a person might bring a case if they are handicapped and no adequate polling location was available to them. However, I think the bulk of the cases brought up will be with purely political intent and not any intent to uphold any sense of fairness.

Some examples: A voter did not originally register correctly and was still able to vote. This could be perceived as being unfair to the voters who did indeed register correctly. How about a voter who did not bring proper identification to the polling location? That could be unfair.

The idea here is that procedural unfairness will be used as a tool to invalidate votes. Any action which results in some sort of unfairness to other voters or where the intent of the voter may not be clear could potentially be brought to court. We could be dealing with nitpicking, but I believe we will be dealing with people intent on "nitpicking" only portions of the population that tend to vote for the other candidates. Republicans challenging voters at locations which are predominantly Democratic voting. Democrats challenging voters at locations which are predominantly Republican voting. And then we'll deal with countersuits against the challengers. The act of challenging only some voters could be perceived as unfair itself!

In short, I believe this will lead to a quagmire. All of this because the Supreme Court opened up this Pandora's box of Equal Protection.

By the way, I don't know if all of these suits will end up at the Supreme Court. I have a feeling that if there is enough litigation, it would make sense for the Court to step in just to stop the madness. Here are a couple of opposite opinions on that matter:

• Yes, this will end up at the Supreme Court
• No, this will not end up at the Supreme Court (I've referred to scenarios 1 and 2 above)

This had become quite the long post, so I'll leave it as-is right now. I'll shortly post my thoughts on the fundamental problem here.