Volokh Conspiracy mentions an intriguing article regarding what appears to be a chambers opinion of a couple justices regarding a federal judicial challenge to the 1912 Presidential Election. They refused to decide the matter because the matter was questionable and therefore judicial discretion would counsel not interfering with electoral politics since the result might be more trouble than it was worth. It's applicability to Bush v. Gore is unclear, and it was not even an opinion of the Court, but it would be interesting to know what people would have thought about it if it was revealed in 2000! The overall principle is surely a sound one:
But as courts are reluctant to interfere with the ordinary course of elections, whether primary or otherwise, as the rights asserted are not clear but doubtful, and as the injury and public inconvenience which would result from a supersedeas or any like order, if eventually the judgment of the state court should be affirmed, or the writ of error dismissed, would equal the injury which otherwise would ensue, we think no supersedeas or kindred order should be granted.
As the Jets creamed the Dolphins (they did basically nothing for most of the First Half, the Dolphins tied the game, and the Jets finally became serious -- including scoring a field goal after getting the ball back with :20 on the clock), we saw views of the first voters in NH getting ready for vote. Though Kerry lost the conservative town shown, the other one voting at midnight was a tie with Nader having one vote, which was an improvement from last year. But, of course, the real thing is the electoral vote.
But, let's put aside the Electoral College. The real chance for improvements and reforms need not include replacing the system with the popular vote. It would be a better handling of the vote itself, including an assurance that they will be properly counted. The whole EC issue is interesting and all, but at the end of the day, a bit pointless to worry about. The one exception might be Colorado's ballot measure to apportion it by popular vote. I'd just add that applying that to this election (if it passes) seems a bad idea, even if it is legitimate, which I don't think it would be. In this case, it really is a valid Article II question given the legislature did not pass the change as compared to Florida 2000, which concerned the interpretation of law passed by the legislature.
Though I have not kept up with the matter, there has been quite a few complaints of Republicans trying to interfere with the vote. As with the various problems in Florida, this sort of thing really must be stopped, and responded to on a national level: the right to vote is a federal right, even if the contours is a matter of state discretion (e.g. the whole felon voting issue, which is another matter that must be reformed -- those who served their time should have their voting rights back; and even if you deprive them of it, a system that results in loads of non-felons being caught in the net is patently unjust).
The same should be the case, as we saw with HAVA, regarding various voting procedures and so forth. State by state control of the election systems, including election challenges, is fine and maybe even the most efficient.* State control that allows computerized voting with no printouts or biased political officials to be the deciding factor in close races is not so acceptable. I'd toss in that we should not forget that non-competitive House races is another big problem, one that independent commissions instead of ultra-political gerrymandering might very well result in some real elections, not pro forma efforts.
About a third, by some accounts, voted before Election Day. I find this a bit distressing, since the very act of going to the polling place and voting on Election Day seems to me to have a special quality to it. Maybe, this is a bit of outdated nostalgia, but weekend voting and making Election Day a holiday might help promote the concept. I know that some just cannot be at their polling place on the right day because of travel or whatnot, but surely not THIS many! Oh well.
Those of us in NYC that actually do go to the polling place to vote use old fashioned lever machines -- no hard copy record for us either (except for a numeric counter and such) -- which gives everything a certain sense of kitsch to it. When some of the elderly poll workers were my age, they too signed their name in a book and pulled those little levers and such. Some of them also voted for "JFK" -- some things change, some things stay a bit more the same. I did have a bit of a problem with the damn things today, the little levers not clicking properly the first time I switched them. I'm ready for one of those new fangled ATM things.
And, the news might not be good for Chief Justice Rehnquist because his throat cancer might be more serious than once thought. Thus, the presidential election becomes that much more important. I hope for the best for Rehnquist -- his ideology might not be appealing to many (though less extreme in recent years than the Scalia/Thomas bunch), but it is well noted that he is a pretty nice guy, which is a quality that we need more of in this world. As to fears of his illness having more immediate results, including if the Supreme Court has to decide the election again or even the chance of a recess appointment, I think that sort of thing is a bit premature and/or unlikely to occur.
I shall report later on ... hopefully before 4A.M.
Happy Birthday (a day late) .... Tom.
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* One reason given for the Electoral College is that a popular vote system would have resulted in 50 Floridas in 2000. I'd add that it would be 51 (DC), the fact federal territories and such was not included is revealing, and that it would not necessarily be true anyway. We could still have state by state control of electoral systems, including recounts that only kick in when the tally is particularly close in that particular state. At worst, 2000 would have resulted in a few Floridas with both sides trying to obtain recounts in the few states that were so close that the states might have allowed them.
Furthermore, improved voting procedures would make things go even more smoothly -- remember that Gore challenged a particular voting method that in time will no longer be used at all. As with moves toward instant run-off voting, this is just another case of problems not of popular or electoral vote systems per se, but a particular form of them. Reform therefore need not replace the current system entirely, which should be obvious given how much the Electoral College system itself changed over time without any amendment being necessary.