February 1, 2006

Lawyers, Guns and Money

This is a talk given by Benjamin Ginsburg at Duke. Mr. Ginsburg was the chief counsel for both Bush 43 campaigns (thanks MeFi for the link - it's a RealPlayer stream). In it, MeFi headlines the fact that he states "Just like, really, with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection." Wanting to know the context, I had to go watch. More after the jump.

I'm not a lawyer, but he's talking about Equal Protection as it applies to the vote and ballots, a specific legal concept and tactic. He's discussing the 2000 recount cases brought in Florida (at around 38:40 into the video). Here's a rough transcript for some context, all errors mine:

We went to the Florida Supreme Court twice..there was litigation in scores of federal and state courts around the state...a quick note on perhaps the most interesting issue that came up there as we dealt with it and that was equal protection. Equal Protection is from really the Macintyre/McClosky race back in 1984; sort of the wildcard in litigating recount cases. In other words, are all similar ballots counted the same way? Because each county counts its own ballots, they may do it slightly different... what's a 'hanging chad' and counted in Palm Beach may be a 'pregnant chad' and not counted in Dade, and is that fair under the law, does it meet Equal Protection if all ballots aren't counted in the same way. Now, just like really with the Voting rights act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection. And in this case we decided nonetheless to begin filing the complaints based on Equal Protection. I was defeated in the Florida district court down in Miami early on, it went up to the 11th circuit, it sort of hung around there, it reemerged as an issue in the Florida Supreme Court cases, uh, which is what ultimately went up to the U.S. Supreme Court and at the end of the day there was a 7-2 majority of the US Supreme Court to find Equal Protection violations in the Bush vs. Gore case. The justices split on the remedy 5-4 but there was a 7-2 majority for the notion that you needed to do something about the Equal Protection violations in Florida. Of course, Bush vs. Gore is probably the most notorious of all the election violation cases that went up to the Supreme Court.
In other words, he appears to be saying that on the whole, Republicans don't generally agree with the philosophy behind the legislation and/or judicial precedent that created the Equal Protection concept, but they decided to use it anyway to achieve their goal, and it worked out for them. This sounds fairly normally lawyerly to me. As for the other part of the statement, that they don't agree with the Voting Rights Act either, that is made slightly clearer later on when he answers a question.

At around 54:00 in the video stream, Mr. Ginsburg notes that the U.S. House of Representatives has, since 1974, had an extremely high re-election rate - i.e. incumbents tend to win. He attributes this to a string of decisions from the Supreme Court, starting with the Voting Rights Act, involving redistricting. He further says that a Constitutional 'Originalist' must prefer the House to 'blow with the prevailing political winds' of the country rather than remaining locked through incumbent victories, and notes that the Delay case (which begins hearing arguments March 1, 2006) will likely have a profound impact on redistricting in the United States since it involves nearly all aspects of political redistricting in the U.S. He makes a remark that a federal judge many years ago told him that the Supreme Court was not, in fact, planning in any way to affect the political nature of the House and that he should stop being paranoid, because there 'wasn't anything behind those robes' (referring to the Justices)...and then notes that that judge was John Roberts, so we'll see.

Some other revealing (to me) bits. Earlier in the Q&A period, he characterizes the dispute over recounts between the GOP and the Democrats as one where the Democrats are afraid the GOP will attempt to suppress minority (Democratic) votes through intimidation, and the GOP is afraid that the Democrats will attempt to 'register multiple votes through fraud in those precincts.' Er, what? He then, in that same answer, does admit that remaining tough on perceived GOP intimidation is an effective Democratic 'get out the vote' tactic, while offering no opinion on the point of view that intimidation is a much, much easier to achieve and harder to prove (and hence prevent) form of tampering than actual voter fraud.

Also, remaining a true GOP operative, he closes the talk by answering a question as to what the plans would have been had the Supreme Court ruled in favor of the Gore campaign in 2000 - "We would have gone back to the county level and fought tooth and nail," and then immediately painted a picture of "imagine if 9/11 had happened and we hadn't had a clear decision on who was President."

Um, and whose fault would that have been then, had the Supreme Court ruled in favor of Gore?


I will give him this: he's opposed to electronic voting systems. He thinks they're bad for the country. He says as a 'member of the society of hourly billing' he loves 'em, but as an American, he thinks there is just too much anecdotal evidence, even, that they are vulnerable, and too many ways for plausible challenges to their veracity to be raised in comparison to paper ballots. Which makes sense, given that his specialty is recounts.

Posted by jbz at February 1, 2006 7:16 PM | TrackBack

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