Posted 10:29 AM by Robert

Davis Descending XLVI: Chief Justice Tribe Dissents

The weakness in a legal position is often best determined by reading a defense by its most articulate and learned defenders. Laurence H. Tribe, a professor of constitutional law at Harvard Law School who is co-counsel for the parties challenging California's election procedures, obligingly provides the final measure of proof that the Ninth Circuit attempt to stop the October recall is doomed in the form of his defense of that attempt in today's OpinionJournal.

Curiously, Professor Tribe at one point seems to say that Bush v. Gore is inapposite - or at least wrong:

"[T]he federal court was simply honoring the principle--a principle much older and more deeply rooted than its purported application in Bush v. Gore --that everyone in any given state should have the same chance to cast a vote that gets counted when it's the state that's running the entire election."

But then what to make of one of his closing sentences: [This California case] is about the unwillingness of some to abide by the same rules in California today that they pressed in Florida three years ago. Everyone admits that Bush v. Gore set the rules in Florida. But Professor Tribe says that Bush v. Gore did not apply his ancient, fundamental principle (it only "purported" to have applied it). Professor Tribe can't be saying that the Ninth Circuit's actual application of his ancient and fundamental principle leads to the same rules in California today that the incorrect, merely "purported" application of that principle in Bush v. Gore led to in Florida three years ago. And if he views Bush v. Gore as substantially on point, why is there not a single quote - in or out of context - from that case in this column?

Does Bush v. Gore provide substantial support for the Ninth Circuit or not? After reading Professor Tribe's effort one is left with the distinct impression that he includes the Bush v. Gore majority of the Supreme Court among those at whom he directs his criticism for "the game they played in the 2000 election." That may be a workable approach for the airless Harvard Law School classrooms in which Professor Tribe hears his own voice for as long as he wishes, but it doesn't make for compelling advocacy or a persuasive media column - or a winning argument before the Supreme Court. Professor Tribe needs to remember that he has not been appointed to the Court, and his mere vote therefore doesn't count.

What is missing from Professor Tribe's wan effort is the actual identification of any Supreme Court case that actually does articulate and accept his sweeping "principle." For example, if his "principle" is as ancient and fundamental as Professor Tribe says it is, then the Supreme Court need not have courted controversy in the Baker v. Carr line of cases to find its "one-person-one-vote" principle. Instead, the Court could simply have applied Professor Tribe's much broader - and apparently absolute - principle: "the fundamental principle that nobody's vote should count less than anybody else's in a state-run election just because of where in the state the voter happens to live." Gee, if only they'd known.

The absoluteness of Professor Tribe's principle has poetic, if not legal, charms: everyone in any given state should have the same chance to cast a vote that gets counted when it's the state that's running the entire election. That is, everyone should have that same choice or the federal courts won't let you vote at all. Of course, there has never been an election in which everyone has the same chance to cast a vote that gets counted, and there never will be such an election - especially not in March 2004 in California, where several counties have already pointed out that they will not be able to handle both the Democratic primary and the recall on the same updated, automated, newer-than-tomorrow voting machines.

If Professor Tribe is right, then the Ninth Circuit should immediately order California to cancel the March 2004 Democratic primary to make room for the recall.

Are November elections in Professor Tribe's Massachusetts to be forbidden because there is a predictable chance of freezing rain in early November that will "predictably discriminate against" minorities of one's own choosing, thereby constituting an "unmistakably systematic" denial of equality? Does the 14th Amendment (or some more ancient principle? Or Bush v. Gore?) require elections be held on Sundays if some professor produces a study suggesting that urban minorities tend to have more trouble getting off work and to the polls during the week? Women systematically vote more than men (who form a sacred minority!) do - and we can't have that!

Yes, Professor Tribe does mention a supposed need to prevent a "massive disenfranchisement." But he provides no connection between his absolute and fundamental principle and the facts which activate it. That is, he provides no suggestion as to how a court is supposed to determine how many voters are enough. Professor Tribe's style even obscures that the Ninth Circuit is an appellate court - which is supposed to defer to the lower District Court in such findings of fact:

The evidence assembled ... shows that tens of thousands of votes will not be counted at all ... and that these denials will fall disproportionately on poor and minority counties.... [O]nly the federal courts can prevent the massive disenfranchisement..."

California has a population north of thirty million. Since when did tens of thousands become a massive portion of thirty million? Isn't what constitutes "massive" a question of fact for the District Court to decide? Appellate courts are not to draw their own fine conclusions from their own review of evidence assembled. And is "massive disenfranchisement" supposed to be the factual test in the first place? Professor Tribe finds no space in his rant to tell us.

He does find room for some other odd things, though. For example, the defenders of the recall and voting procedures must be a highly mobile lot, because Professor Tribe's says that they only recently moved to California: The same folks eagerly asked the Supreme Court to halt in midcount the still unfinished presidential election in the decisive state of Florida ...

I wonder if that includes the editors of the Los Angeles Times?

I certainly felt a good deal better and more confident that the Ninth Circuit would not have its way after reading this column.