Disfranchising Wellstone absentee voters

[Allan Ides]

I had thought vagueness was a due process argument and that the equal
protection argument in BvG had to do with votes being counted under
different, or potentially different, standards.  The vagueness of the
Fla. law may have led to the discrimination, but discrimination is at
the heart of EP.  Are you arguing that some significant number of
voters will now not have a chance to vote?  If so, then you may be
right as to an EP violation.  If not, I'm still not sure what your
argument is other than the statute was changed, which may be a problem,
but not necessarily an EP one.

Allan Ides

----- Original Message -----
From: "Eastman, John" <jeastman at CHAPMAN.EDU>
Date: Saturday, November 2, 2002 8:53 am
Subject: Re: Disfranchising Wellstone absentee voters

> I don't mean to belabor the point, but I really don't understand the
> point of Tobias Wolff's latest post.  If, as he says, the holding
> of the
> majority opinion in Bush v. Gore is that it violates equal
> protection to
> employ a potentially vague standard to recount votes, doesn't he
> need to
> address what in the existing Minnesota statutory scheme is vague (or
> even potentially vague)?  The Minnesota law expressly, and
> unambiguously, provides that absentee ballots mailed/cast before a
> vacancy in nomination occurs shall be counted as if the vacancy
> had not
> occurred.  There is nothing vague about that.  The only vagueness has,
> like in Florida, arisen after the courts have ignored the express
> termsof the statute.
>
> John Eastman
>
>
>
> -----Original Message-----
> From: Tobias Wolff [mailto:tbwolff at UCDAVIS.EDU]
> Sent: Saturday, November 02, 2002 8:08 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Disfranchising Wellstone absentee voters
>
> John Eastman writes:
>
> > The equal protection violation would arise if, like in Bush v. Gore,
> the
> > rules are changed after the fact because one side has decided
> they are
> > not to their advantage.
>
> This description of the 2000 election battle, of course, has
> nothing to
> do
> with the holding of Bush v. Gore.  The holding of the majority opinion
> was
> that (1) it violates equal protection to employ a potentially vague
> standard to recount votes when more particularistic evaluative
> rules are
> possible, and (2) there was "some evidence" that the lack of such
> evaluative rules to augment the "clear intent of the voter"
> standard had
> in
> fact produced some "arbitrary" results in the recount.
>
> The Per Curiam opinion neither held nor suggested either that (1) the
> rules
> had been changed to favor one candidate, or (2) the recount was being
> conducted in a biased fashion.
>
> I understand that the opinion is completely analytically incoherent
> without
> reading some such suggestion into it -- which is why Justice Stephens
> felt
> compelled to respond to the unspoken implication in his dissent -- but
> that
> is not the basis of the Court's holding.
>
> -- T
>