Supreme Disenfranchisement

By Steven Rosenfeld, AlterNet. Posted November 2, 2004.

Tuesday's vote should be the highest turnout in decades. But Americans are now realizing that Florida in 2000 was no fluke, but a broader reflection of voting in America. Indeed, the U.S. has a deeply decentralized, fragmented and compromised system of voting – where Republicans can challenge new voters in key states because basic voting rights are not enshrined.

But there is an even bigger obstacle – and this is critical in the rush to Election Day – and that is realizing the current Supreme Court does not believe in voting rights in the way most Americans assume.

As voting rights scholar and activist attorney Jamin Raskin points out in his recent book, "Overruling Democracy: The Supreme Court vs. the American People," the current court does not believe in the principle of "one person, one vote." Instead it has a decade-long record, in case after case – culminating in their 2000 decision to stop the Florida recount and make George W. Bush president – of disenfranchising voters, limiting the right to vote and making political representation harder for minorities. As Raskin writes, "Behind Bush v. Gore lies a thick and unprincipled jurisprudence, hostile to popular democracy and protective of race privilege and corporate power."

Raskin persuasively argues that this Supreme Court has subverted the very democratic principles that millions of new voters believe await them: the right to vote, participate, have access to the ballot, and faith their vote will count. Indeed, in Bush v. Gore, the Supreme Court wrote, "the individual citizen has no federal constitutional right to vote" in presidential elections (Bush, 531 U.S. at 104) Moreover, in Bush v. Gore, the court was emphatic that state legislatures have the power to bypass the popular vote and select presidential electors. "The State legislature's power to select the manner of appointing electors is plenary; it may, if it so chooses, select the electors itself." (Bush, 531 U.S. at 104)

That's the nightmare scenario of 2004. As millions of Americans join the new democracy movement, the Supreme Court has given this opening to the Republican Party: if Tuesday's vote is disruptive enough – polls not closing on time, allegations of voter fraud, lawsuits, perhaps violence by frustrated voters – then legislatures in the disputed states can come in and appoint its own electors. The popular vote would not matter.

That's not a crazy paranoid theory. Conservative legal scholars, including this Supreme Court, have repeatedly pointed out the Constitution has no specific clause giving individuals the right to vote. All the "one person, one vote" doctrine comes from Supreme Court rulings, mostly in the mid-20th century, when the court was seen as liberal. But that's not today's court.

So consider the possibility that the more the GOP does to disrupt the vote, the more likely Karl Rove can be confident that there is a legal basis to push the selection of electoral college electors to legislatures in those states. What swing states have Republican majority legislatures? Colorado. Florida. Iowa. Michigan. Minnesota. New Hampshire. Ohio. Oregon. Pennsylvania. Wisconsin.

What does this mean for the democracy movement in 2004? It means people must turn out and vote in a tidal wave that washes away Republican tactics to produce another presidential coup. And then it means, once the election is over, a new constitutional amendment to firmly and finally assure the right of all Americans to vote – and at the same time, putting the electoral college where it truly belongs: in the dustbin of history.

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