The legal attack on the 2004 election

Will this election be a legal mess? Will 10-15,000 lawyers descending on the nation's polls manage to find anything to complain about? Duh.

How did we get into this mess? The most obvious reason is the supposed injustice wrought by the Florida 2000 election, and its messy end in Bush v. Gore. Having supposedly had the last election "stolen," the Democrats won't let it happen again. So Democrat lawyers descend on the polls and the courts. Republicans have little choice but to follow them there.

It is worth reflecting on the deeper meaning of all this. Before doing that, consider the following:

--As Robert Nagel writes in today's WSJ, Gore would have lost even if the Florida recount had gone through.

--My former colleague Nelson Lund argues convincingly that, contrary to almost universal wisdom, Bush v. Gore was right. As Nelson says:

For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles.

Even if Nelson is wrong, his argument is at least plausible enough to raise some doubt about whether the case deserves to be the rallying cry for disrupting the present election.

--Even if Bush v. Gore was wrong, in our nation supposedly of laws, the Supreme Court was the referee our nation selected to decide the last election. There is something fundamentally wrong about the Democrats' undermining faith in the law and our legal system for short-term political gain.

Here are some deeper explanations for the attack on this election:

--Nagel blames law schools. Noting that Bush v. Gore probably did not affect the ultimate result in the election, he asks: "To what kind of mind is it an injustice that an argument is rejected even if that argument could not have changed anything? Put another way, to what kind of mind does the making of an argument in itself have urgent moral force?" The answer, he says, is in how lawyers are trained in this country. There is something to what he says, but I think that the attitudes afoot today go way beyond law schools.

--The vitriol of the anti-Bush partisans does not allow them to accept that he could possibly have been legitimately elected.

--The prevailing litigious attitude that holds that every disappointment in life must have a legal remedy, or a legal cause.

However it comes out, this election almost certainly will be a disgrace wrought by lawyers and by blind outrage whipped up in the name of partisan politics. It will be a sad day that I hope, but doubt, will teach us a lesson.

Comments

[Ann]

This brings up a question that I never saw addressed at the time of the 2000 election - wasn't the Supreme Court unanimous in rejecting the Florida SC's ruling? Even in the dissenting opinions, I didn't see any support for the Florida SC procedures, only an argument that "we're not the appropriate venue for righting this particular wrong".

I'm not a lawyer and would appreciate the opinions of others. Did even one US SC justice write an opinion saying that the Florda SC procedure was valid?