Glasser, Ira, Meese, Allan J., Insight on the News
Q: Will the Supreme Court intervention in Florida fail the test of time?
Yes: The miscarriage of justice to minority citizens whose votes were discarded unfairly was ignored.
In 1857 the U.S. Supreme Court effectively upheld the constitutionality of slavery by striking down as unconstitutional a federal law that prohibited slavery in U.S. territories outside the South. Far worse than the decision in Dred Scott v. Sanford case itself was the language of the opinion supporting it. Chief Justice Roger B. Taney wrote that blacks were "subordinate and inferior beings" and that they had "no rights which the white man was bound to respect."
There probably has never been a Supreme Court decision more crushing to the hopes and aspirations of equal-rights advocates than Dred Scott. But Frederick Douglass, the leading black abolitionist of the time, did not react with despondence or despair. He said: "The Supreme Court is not the only power in this world. We, the abolitionists and colored people, should meet this decision, unlooked for and monstrous as it appears, in a cheerful spirit. This very attempt to blot out forever the hopes of an enslaved people may be one necessary link in the chain of events preparatory to the complete overthrow of the whole slave system."
It is not necessary to equate the Supreme Court's decision on Dec. 12 with the Dred Scott decision -- indeed, it would be obscene to do so. We should take Douglass' reaction as a guide for our own. Our nation must now rededicate itself to assuring the equal right to vote. In this, the Supreme Court's Dec. 12 decision contains a number of opportunities that the American Civil Liberties Union (ACLU) will begin to address through litigation in the coming weeks.
The equal-protection clause of the 14th Amendment was written in the first instance to address local and state-based racial inequalities. In George W. Bush and Richard Cheney v. Al Gore, et al., the U.S. Supreme Court discovered a 14th Amendment equal-protection violation in the differential ways that disputed ballots were being counted in Florida. But these disputed ballots and the methods used to evaluate them only arose because of the differential use of punch-card machines in some counties but not in others. In terms of practical impact, these and other inequalities almost certainly affected a greater number of votes than any inconsistencies that might have arisen from the manual recount that was under way in Florida and did so, moreover, in a way that clearly discriminated against racial minorities.
But it also provides an opportunity for those who truly are dedicated to the principles of equal protection to challenge prospectively the differential use of punch-card machines in Florida and also across the country. If the U.S. Supreme Court claims to be sensitive to equal-protection problems in the area of voting, the ACLU is ready to accommodate it.
Thus, if there were an equal-protection problem in Florida, it arose out of the racially disparate use or different voting machines, and was both more serious and prior to the equal-protection problem arising out of the evaluation and counting of disputed ballots. Indeed, the evaluation and counting of disputed ballots was a remedy for the prior equal-protection problem arising out of the different machines. For the Supreme Court to pretend, as it did, that an equal-protection problem arose initially at the stage of evaluation and counting disputed ballots, while it ignored the prior equal-protection problem, exposes the intellectual dishonesty of the court's approach.
According to a Dec. 1 report in the New York Times, counties that used punch-card machines turned out ballots that showed no vote for president at a far higher rate than counties that used optical-scanner machines. In 30 Florida counties that used optical scanners, for example, only three-tenths of 1 percent of the ballots were recorded as having no presidential vote. …