DECEMBER 21, 2000  

Smiting Voting Rights
'Bush v. Gore' Harks Back to Dark Ages of Jurisprudence

        By John Burton
        Although gallons of ink have been spilled about how the right-wing Supreme Court majority installed George W. Bush as president, little has been said about the fact that in doing so, the high court in
 Bush v. Gore held that "the individual citizen has no federal constitutional right to vote for electors for the President of the United States." If the Bush presidency turns out to be as unpopular as its narrow social base suggests, perhaps the 2000 presidential election will be the last presidential election where people actually vote for electors.
        It is no coincidence that this reactionary decision is based on the extreme decision of another right-wing Supreme Court. In paving the way for a dictatorship, the
 Bush court relied on a decision written by Chief Justice Melville Weston Fuller, McPherson v. Blacker, 146 U.S. 1 (1892), which held that state legislatures had plenary power to select presidential electors.
        The Fuller court was among the most notoriously reactionary in history. In 1896, the Fuller court issued
 Plessy v. Ferguson, 163 U.S. 537 (1896), the precedent that enshrined the doctrine of "separate but equal," thus institutionalizing Jim Crow segregation. And 1905 gave us Lochner v. New York, 198 U.S. 45 (1905), which created the doctrine "substantive due process" in order to strike down state laws seeking to protect the health, safety and wages of workers. 
        Like most Fuller-court jurisprudence,
 McPherson is completely out of line with contemporary notions of democratic rights. As with Plessy and Lochner, its result hinges on a complete distortion of the 14th Amendment, which was ratified to guarantee people their democratic rights to due process of law and equal protection. Section 2 of the 14th Amendment expressly protects the right to vote, including the right to vote for "the choice of electors for President and Vice President."
        The right to vote expanded dramatically throughout the 20th century. The 17th Amendment, ratified in 1913, provided for the popular election of senators; the 19th Amendment, ratified in 1920, guaranteed women suffrage; and the 26th Amendment, ratified in 1971, extended suffrage to all citizens over the age of 17.
        Most important, the 24th Amendment, ratified in 1964 during the zenith of the civil rights movement, provides: "The right of citizens of the United States to vote ... for electors for President or Vice President ... shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax." This is the right to vote for presidential electors that the Supreme Court has taken away. This is the right we, the people, must take back.
        History will consign
 Bush v. Gore to the same pile of Supreme Court travesties as Plessy, Lochner and, most notably, Dred Scott v. Sandford, 60 U.S. 393 (1856), the decision in which the "court of last resort" ruled that people of African descent remain "property" when taken to states prohibiting slavery. That filthy decision helped ignite the Civil War, and therefore the greatest single expansion of democratic rights in American history. It remains to be seen what, in the long run, will be the consequences of Bush v. Gore.
        But one thing is certain. By taking away the right to vote for presidential electors, the high-court majority has declared itself the bitter enemy of "government of the people, by the people, for the people." Thus, it has become our task, not theirs, to make sure that such a people's government "shall not perish from the earth."

        John Burton
 is a civil rights lawyer in Pasadena. 


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