On 11/6/10, Dan Johnson-Weinberger <dan.johnsonweinberger@gmail.com> wrote:
I mean, the government changing the composition of the United States Senate
and thwarting the will of a plurality of the electorate is about as big a
First Amendment burden one can imagine in this context. Administrative
convenience as a state interest looks a lot less compelling now that Alaska
and Connecticut have shown how citizens can elect the candidate of their
choice in ways that other states can make illegal.
In a similar vein, when Miller or anyone else insists on correct
spelling via policy or law or an interpretation of the "objective
rule" preference of Bush v. Gore, it stands democracy on its head. In
the unique context of elections, the voters are the superiors and
giving their authority or instructions to their representatives and
the government. Just as a servant or employee is not to be heard to
object to and claim they can't "hear" an instruction not printed out
in perfect spelling and grammar, it is similarly absurd for the
servants/employees/government to refuse to count a vote (whether
authorized by law or not) on the grounds of misspelling where voter
intent is otherwise clear.
Because the one time when the government surely must LISTEN and not
(via laws) command is the time of elections, when Bush v. Gore says
that voter intent is a nice "starting point" it thereafter errs. It
is also the ending point. Whatever "subjective" objections might be
made, there is no excuse for not listening for voter intent. In a few
cases that intent may not be discernible by reasonable people, but
those are few indeed overall.
What Bush v. Gore and subsequent events have done in the name of
objective rules is substitute objective rules (voter compliance on
pain of losing vote or ballot) for the rule of voter intent (the
government listens). That is the difference between self-government
and something other than self-government, because in all republics and
democracies the people are in charge - when they are voting.