Whose Equal Protection?

The most important thing we do is not doing. — Justice Brandeis

Federal courts defer to state high courts’ interpretation of their state’s own law. This principle reflects the core of federalism, on which all agree…THE CHIEF JUSTICE’s solicitude for the Florida Legislature comes at the expense of the more fundamental solicitude we owe to the legislature's sovereign…Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court. — Justice Ginsburg

In the long run it is the majority who will determine what the constitutional rights of the minority are. I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by liberal colleagues, but I think Plessy v. Ferguson, the legal foundation for mandatory racial segregation, was right and should be re–affirmed. — William Rehnquist

It should surprise no one that Chief Justice Rehnquist, the author of such a naked, odious celebration of white privilege, would not only act to install George W. Bush as president but do so at the enormous risk of disenfranchising American voters. The least of what Rehnquist, Scalia, Thomas, O’Connor, and Kennedy have done is to give the presidency — as it now seems likely they have done — to Bush; in so doing they’ve damaged the Court, the judicial branch, and treated with contemptible indifference gains achieved by a hundred years of mass struggle.

The disenfranchisement of Floridians (which is meliorated only by being temporary), many of whom, one may safely assume, are African Americans and women, assaults directly whatever goodness, decency, and plain sense remain in American experiment. The franchise, as the Chief Justice well knows, did not come cheaply, either to women or to African Americans, in large part because of generations of white men like Rehnquist, including Rehnquist himself. The costs of disenfranchisement were countless moments and, thus, lives of humiliation, indignity, and impotence; the costs of winning the franchise were countless lives and, thus, moments of struggle, defiance, and hard work. We should be as loath to fail to count the votes of American citizens as we are to do nearly anything else. In the civic religion of American democracy, perhaps yet an idea with some purpose, disenfranchisement, next to abrogation of freedom of speech, is Original Sin. To sacrifice the franchise for the sake of partisan advantage or expedience cheapens us all.

As Justice Stevens — with Justices Ginsberg, Breyer, and Souter, among the small number of decent actors in this farce — wrote in his dissent,

In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent — and are therefore legal votes under state law — but were for some reason rejected by ballot-counting machines …

Or, far worse, intentionally rejected by Secretary Harris’ grotesque use of lists of “faux’felons”, i.e., citizens, half of whom were black. The London Observer reported, conspicuously unreported by US media, that

Harris’s office had ordered the elimination of 8,000 Florida voters on the grounds that they had committed felonies in other states. None had. Harris bought the bum list from a company called ChoicePoint, a firm whose Atlanta executive suite and boardroom are filled with Republican funders. ChoicePoint, we have learned, picked up the list of faux felons from state officials in — ahem — Texas. In fact, it was a roster of people who, like their Governor, George W, had committed nothing more than misdemeanors.

That a state official, even from negligibly sane Florida, would act in so blatantly hostile a manner, imperiling the most fundamental civic right afforded to Americans under law, is proof enough that the franchise remains embattled, tenuous, and in need of the Court’s highest protection.

Instead, as Ginsburg's dissent makes clear, the Court has created the very conditions it now spurns. “In sum,” she writes, “the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.”

Justice Breyer put it well, ``we do risk a self-inflicted wound -- a wound that may harm not just the Court, but the Nation...What it does today, the Court should have left undone.'' I could not agree more.