Another Constitutional Moment?

[John Noble]

At 7:03 PM -0500 1/20/01, Randy Barnett wrote:
>All of this misses the symmetry I raised in my previous post: That, by
>intervening, the Supreme Court may have STOPPED the election from being
>stolen by Democratic election counters creating votes for Al Gore from
>nonvotes for President.  Had it not intervened and Al Gore had "won" the
>umpteenth recount, millions of people would have perceived the election
>having been "stolen."  Only these are the millions not well represented
>among con law professors.

There is symmetry in the fact that half the public would have concluded
that the election was stolen whatever the outcome. There is symmetry in the
assumed inclination of local Democratic activists and the Florida Supreme
Court to tilt the field to Gore vs. the inclination of local Republican
activists and the Republican legislature, plus the Republican Governor and
Secretary of State, to tilt the field to Bush. But that's where the
symmetry ends. Elections have been stolen before and will be stolen again,
by political machines and voting machines. But I don't see the symmetry
between an election stolen by party hacks and an election stolen by the
Supreme Court. If the Daley Machine stole Illinois for Kennedy, it was
breaking the law; if the Supreme Court stole Florida for Bush, it was
making up the law. I'm not saying either happened, only that there's no
symmetry.

>Which "stolen election" scenario is the true one will never be known.

There are three "stolen election" scenarios. It might have been stolen by
local Democrats with the help of the Florida Supreme Court, or by state and
local Republicans and the Florida legislature, or by the Supreme Court.
We'll never know whether it was stolen at all, or whether the Supreme Court
prevented it from being stolen, but if it was stolen, and for those who
believe it was stolen, there's no question who stole it.

>(Sounds like a Star Trek episode, doesn't it?)

Calls to mind the Prime Directive -- don't use superior force to interfere
with the natural development of alien cultures.

>What we do know is that there are many people with a strong interest in
>declaring this election to have been illegitimate regardless of whether it
>was or was not (as there would have been in the alternate scenario as well).
>
>Does this not argue for some humility in asserting whether the election was
>"stolen" by those who are willing to resist partisan rants?

Comparing scenarios -- 1) many people thinking the election was stolen by
the Supreme Court of the United States, 2) the same people thinking it was
stolen by Florida Republicans, or 3) as many people thinking the election
was stolen by Florida Democrats -- I can't help but think it argues most
forcefully for the Supreme Court to make sure that if it is stolen, someone
else takes the rap. The fourth scenario would have the Supreme Court
actually and convincingly preventing a stolen election, but that would
depend on knowing who won and a Supreme Court that didn't break along
partisan lines.

For those "willing to resist partisan rants," I wonder if it isn't clear
that the actual outcome was the worst possible scenario.

John Noble