Re: News of the day 5/1/03

Subject: Re: News of the day 5/1/03

From: Roy Schotland

Date: 5/2/2003, 9:17 AM

To: rick.hasen@mail.lls.edu

CC: "election-law@majordomo.lls.edu" <election-law@majordomo.lls.edu>

Triggered by today's word about the super Sam Issacharoff's new piece on Bush/Gore, may I (with credit or blame to Rick for having suggested we not hold back about recent writing), note my own about the Due Process issue in that case, in a Loyola/Chicago symposium, see 34 Loy/Chi LJ 211 (2002).

    I try to show that seven Justices were right: Florida's recount system was unconstitutional-- wholly aside from whether the Court should have taken the case (on which I go with Issacharoff), or ended it as they did. Due Process, "the Great Clause", was denied by the combination of (a) allowing county canvassing boards such unfettered discretion that they were prone not only to error, but also to partisan manipulation, and (b) failing to provide even a simple safeguard to cabin that discretion (e.g. requiring bi-partisan canvassing boards).
    (May I, at risk of gracelessness, note that with this piece I became the Nth victim of law journal editors' doing their own thing-- among other errors, screwing up the opening sentence which should have read:   "Lawrence Tribe opened his argument in the Supreme Court's first round in this unique matter, as follows: 'I think I would want to note at the outset that the alleged due process violation which keeps puffing up and then disappearing ... is really not before the Court.'")
    As you may know, Tribe has written the only notable treatment of the DP issue, which I try to show is a flawed treatment.
    Thanx for your attention, Wkend Well.

Rick Hasen wrote:

BCRA opinion tomorrow? The conventional wisdom (from court watchers, journalists and others) was that the opinion would be out 24-48 hours after the three judge court set up the special listserv for issuing its opinion. It is now after 5 pm on the East Coast. So the best guess is that the opinion will be out tomorrow, but don't be surprised to see it go to next week. After all, it is already 3 months after the expected due date.
As an historical sidebar, the Supreme Court issued its opinion in Buckley v. Valeo on January 30, 1976. I recently published an article on the drafting history of the opinion based upon my review of the papers of Justices Brennan, Marshall, and Powell. (The article, The Untold Drafting History of Buckley v. Valeo, 2 Election Law Journal 241 (2003), just became available on Westlaw to those readers who have it.) According to the papers, after Justice Brennan circulated a memo noting that the opinion would likely come out on January 30, Justice Powell wrote to the other Justices that "[i]t is important to make that date if possible. The Act directs us to 'expedite' this case. It sounds more 'expeditious' for the record to show we brought the case down in January rather than February!"
More on Kentucky governor woes The Lexington Herald-Leader offers this report. (Thanks to Ed Feigenbaum for the pointer.)
New Issacharoff draft Anyone remember Bush v. Gore? Legal Theory reports on this new scholarship up on SSRN:

Samuel Issacharoff (Columbia) posts The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections, forthcoming in the Texas Law Review. Here is a taste:
This article explores the preconditions for the transfer of power within democratic regimes. Invariably, constitutional discussion of the necessary preconditions for a successful, peaceful transition to power focuses primarily on rights guarantees to the defeated minority. The minority must be assured of the ability to proclaim its views in the future, the ability to assemble and to organize itself, the ability to be secure in their person and property�in short, much of the formation of rights associated with democratic liberties. But just as surely as the rights domain is necessary for a rudimentary formulation of democratic legitimacy, it is also incomplete. Just as central are the structural protections, which include the obligation to stand for election anew at some fixed or relatively fixed interval, the limitations on the powers of office, and the accountability of the governors to the structures of office, as exemplified in this country by the divisions of powers among coordinate branches of power. This article focuses on the structural components of constitutionalism as a necessary constraint on democratic politics. This precommitment necessarily thwarts or limits deliberative choices after constitutional enactment, yet serves as a precondition for the functioning of democratic politics. The article focuses on the work of political theorists Jon Elster and Stephen Holmes to argue that current constitutional scholarship underestimates the importance of constitutional obduracy. The article concludes with a reexamination of the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment of ex ante constitutional procedures.
-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
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rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com

--
Roy A. Schotland
Professor
Georgetown U. Law Ctr.
600 New Jersey Ave. N.W.
Washington, D.C. 20001
phone 202/662-9098
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