A somewhat ranting question

[Richard D. Friedman]

I think the only way Sandy's first assumption could plausibly be true would 
be if, as measured "properly", whatever that means, the election was 
really, really close, as it was in 2000.  And we learned in 2000 that our 
measurement devices for really, really close elections aren't perfect, and 
also, I believe, that in such a case factors that ought not enter in, like 
the political preferences of the people who happen to be on the Supreme 
Court, might nevertheless prove decisive.  But it doesn't mean that the 
government is illegitimate; had Al Gore gotten a few thousand more votes in 
Florida, he would have been President without question. Similarly, in 1960, 
maybe Democrats in Illinois did bad things that threw the election to 
Kennedy.  If so, it's a terrible shame and it shouldn't have happened.  But 
it's not as if Nixon or Gore won 60% of the vote in the decisive state and 
was yet denied the Presidency -- then there would be real question of 
legitimacy.

Rich Friedman

At 03:10 PM 10/26/2004, Sanford Levinson wrote:
>  a) Assume that George Bush is "re-elected" in the Electoral College
>(having lost to John Kerry in the popular vote) because of one or
>another judicial decision, by a Republican-dominated Court, in a split
>vote, deciding a highly contested issue his way.  B) Assume further that
>the House remains Republican only because of the Tom DeLay gerrymander
>that, one can surmise, five justices of the US Supreme Court believe is
>probably unconstitutional.  (I see no other explanation for returning
>the case to the original district court, given that it would have been
>altogether easy to say that it was covered by Veith and the five votes
>that held that it was either nonjusticiable (4) or that no judicially
>manageable standards had yet been discovered to apply to the situation
>(Kennedy).)  (We can assume, for sake of the question, that the Court
>ultimately does rule the DeLay gerrymander unconstitutional, sometime in
>2006.) c) Assume further that the Senate is 50-50, with Dick Cheney,
>returned to the Presidency of the Senate because of "a" above.  So the
>question, which is entirely serious, is why should any Democrat, under
>these circumstances, view the United States as having a legitimate
>government?  If you wish you can reverse the polarities and assume a
>similar Kerry "election," and the Democrats taking the House only
>because of a Democratic gerrymander (though I'm not aware that any of
>the current gerrymanders even begin to compare with  DeLay's rape of
>representative government in Texas).
>
>If any of you you think this question does not relate to "constitutional
>law," please let me know why.
>
>sandy
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
>private.  Anyone can subscribe to the list and read messages that are 
>posted; people can read the Web archives; and list members can (rightly or 
>wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20041026/c4a9d298/attachment.html