The Election Dispute: the NAACP, the Little Old Ladies & the Supreme Court
[Published as "From The Polls To The Courts"]

by Coleman Kitchin

The media prediction game continues, counting up such intangibles as political legitimacy and the correct redress of grievance, along with the increasingly tangible votes. Meanwhile the republic is coasting in for a soft landing, thanks to the heroic rabble that we are, our open procedures and a thick nest of rules that lead ultimately to the Supreme Court.

First the polls-- the real ones. Having worked inside, outside, and all around voting precincts, for parties, for candidates, and as an election official, I'd say the process is glorious, if a bit musty. Nowhere else in clerical work, say in an accounting department, would anyone tolerate a machine that cannot count the same number twice, as has now been charged. And for about $100 to work a 15-hour day, the election workers at the polls are not your typical clerical types. Most are old and civic, but it's getting harder to find those older and older civic types, so they're supplemented with younger people who actually need the wages. It's the sort of brutal parsimony that produces interesting, if not great institutions, like public schools, hospitals and universities.

Now we're faced with the real structural question: should an election be thrown into the courtroom? Or more precisely, how bad does it have to be to be dispatched there?

Is it a wild accusation, or did a praetorian guard of Jeb Bush's State Troopers set up roadblocks in the lesser parts of Florida to intimidate young black men from voting, on the pretense of screening for felons? In some states, such as Virginia, the State Police, or Highway Patrol, or Rangers, work directly for the governor. In other states, such as Louisiana, they investigate, castigate and bedevil the governor. However it is in Florida, the political shock troops are certainly out in the aftermath, and lawsuits are in the offing. Yet racial issues, as so often in American politics, are unlikely to be addressed until they become unavoidable. This is unfortunate, not least for the fact that a clear look at the racial charges brings to light the whole mishmash of procedural questions at hand. A front page article in the Sunday L.A. Times ably demonstrates this, while other major papers relegate the NAACP effort to a sideshow. Our vaunted transparent legal and constitutional system seems likely to suss out some truth, and fairness, amongst the partially perforated ballots, the misplaced and unsealed ballot bags, and the like, but charges of voter intimidation could be the last thing up for consideration.

Or will it be the little old ladies of the Palm Beach condos? They've outlived generations of politicians, wars and economic revolutions. They're determined to outlive the revanchist sentiment of the House republicans, and of the men in the haze behind G.W. Bush, to regain the lost holy ground of the White House. These sunshine ladies, flapper babies, red-diaper babies, and refuge babies of 1930's European politics, are probably pushing just a little bit too far in asking to vote again, but the judges of Florida may offer some remedy. Does the ballot law prescribe the candidates only be listed to the left of their marks, and from top to bottom, with major parties first?

And what courts will be called? Presently there is no basis for a political decision, that is, a decisive vote in the U.S. Congress. In other electoral disputes, the principle of a legislature setting its own rules and seating its own members applies. But it's explicit in this case that Congress's only role is ceremonial, unless there is a tie. So beyond the county and state electoral boards, the only arbiters will be state or federal courts. Here historical precedence fades away. All the convenient historical examples trotted out by poli-sci nerds in the media miss the point, as they each involved some legislative compromise. Another side of constitutional history is in play here: the ability of the U.S. Supreme Court to set its own limits. If the Florida courts make a muck of it, or lower federal judges get around a bit of law and claim jurisdiction, based on equal protection or due process, then, as in Jefferson's presidency, we may see the Supreme Court establish its own dominion by fiat.

And it might be the best outcome. Our wonderfully divided Supreme Court would at least make a reasonable decision. The high court is far from immune to politics, but a few souls of integrity sit on that bench. And their familiar mugs would bring at least an image of closure to this matter, in our very image-soaked world. From the swamps of Florida to the swamps of Washington, the mergansers will crew and croak into the winter twilight, as the great republic soldiers on.