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
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.