The Aleinikoff solution

[Sanford Levinson]

No doubt this may reflect my own partisan biases (though in fact I think
it's now in the interests of the Democratic Party to let Bush have his
tarnished presidency), but I think that Alex Aleinikoff's posting is the
most truly incisive I've read about how to get out of this mess.  It allows
Democrats to concede that there is *some* merit to the equal protection
argument (as a practical, even if not particularly as a doctrinal matter
given current understandings of e.p.), it also allows Republicans to
recognize that there is *some* merit to the Democrats view that every vote
should be counted at least once on the basis of a (consistent) intent
standard.  And the idea of having Presidents Ford and Carter serve as the
supervisors, together with other people who still enjoy some general
respect--what about Justice White?--is altogether apt.  Without really
looking into the matter myself, I share Alex's intuition that Congress
would have the power to order the state-wide recount (under consistent
standards) and to send in federal voting referees to make sure the count
was honest.  But, of course, this solution would probably be precluded if
the Supreme Court continues on its reckless course and, as a functional
matter, gives the election to Bush.

sandy