I wouldn't post Will (I was half way through the piece before I realized it was him) but for the chill it gives me to see the outright admission that the decision was fubar.Oct. 25 issue - On Dec. 12, 2000, the Supreme Court decided Bush v. Gore, ending the Florida fiasco and guaranteeing George W. Bush's election. Shortly thereafter the conservative National Review, which was pleased by the ruling's consequence but queasy about the reasoning that produced it, issued a warning, the prescience of which might become excruciatingly evident on Wednesday, Nov. 3. Noting that the court's "dubious argument" that standardless, selective hand counts in Florida violated the Constitution's guarantee of "equal protection of the laws," National Review said:
"It is unclear why—with the different vote tabulation systems from county to county, with different levels of accuracy—this line of reasoning wouldn't render Florida's entire electoral system unconstitutional. Or, for that matter, the nation's electoral system. In fact, all of life can be considered a violation of the equal protection clause, which is why the clause has traditionally been the Swiss Army knife of liberal jurisprudence, fit for achieving any result, however arbitrary."
Which is why Jeffrey Rosen's recent essay "Rematch: Bush v. Gore, Round 2" (The New Republic, Oct. 4, 2004) is mandatory reading for both campaigns and citizens who want to brace themselves for the storm that could engulf the nation as soon as the polls close Nov. 2. Then the parties might unleash thousands of lawyers, each clutching a copy of Bush v. Gore, to ferret out "equal protection" violations in every closely contested state.
Consider the use of different voting systems—electronic touchscreens, punch cards, etc.—in different jurisdictions of a particular state. All systems are fallible, and different systems have different error rates. Does that mean that "equal protection" is denied when different systems are used? What if the distribution of the different systems within the state means that errors have a "disparate impact" on minorities?
http://www.msnbc.msn.com/id/6262242/site/newsweek/Will says Gore initiated court proceedings (ascribing blame, I presume, for SCOTUS crummy ruling) Is that so? I remembered Bush running to some court or another at every point.