Courting Disaster : How the Supreme Court lost its way

From Bush v. Gore to Roe v. Wade… In the midst of legal battles over a different presidential election — and originally written for UPI in November, 2004 — this commentary looks at how interference by the United States Supreme Court squandered public trust.

By Greg Guma

In 2000, five justices of the United States Supreme Court stopped the recount in Florida after a mere 36 days and made George W. Bush president. Next time, it won't be so quick, easy or peaceful, and the Court won’t be trusted enough to help.

The national divide is much deeper now and the lawsuits will start before a single vote is cast. Take Florida, for instance. And I’m not talking about 2000. Things were just as bad four years later…

When Florida Secretary of State Glenda Hood told elections supervisors on Oct. 7, 2004 that they should reject incomplete voter registration forms, Democrats went to court. Hood's office had to fend off more than a half-dozen legal challenges, before and after the vote. The issues ranged from ballot initiatives and how to handle recounts on electronic machines to the counting of provisional ballots. Legal fights also loomed over early-voting sites and voter registration rules.

When Hood's office tried to exempt electronic machines from manual recount rules, a judge overruled her. The NAACP sued Florida's Volusia County elections supervisor, arguing that having only one early voting site in an area where minorities live disenfranchises blacks.

Meanwhile in Oregon, a criminal investigation looked into charges that voter registration forms were destroyed or discarded by a political consulting firm working for the Republican National Committee. The allegations involved a voter registration drive conducted by Sproul & Associates, a Phoenix-based consulting group hired by the Republican Party and headed by Nathan Sproul, former executive director of the Arizona Republican Committee.

Allegations that a Sproul associate destroyed or dumped Democratic registration forms were surfacing in several states.

Eric Russell, one of some 300 part-time Sproul group employees in Nevada, said he saw Democratic Party registrations destroyed. Retrieving shredded paperwork that included voter registration forms signed by Democrats, he took them to local election officials and confirmed that they had not been filed with the county, as required by law. In August, 2004 a Sproul employee in Charleston, W.Va., said she quit her job after being told to register only people who confirmed that they were supporting President Bush. 

Fortunately, you might say, Kerry conceded — instead of letting the legal challenges and growing public discontent devolve into a full-blown constitutional crisis.

Cut to 2008 and 2012: Those races weren’t close enough to credibly contest, or we certainly would have heard something by now. But most people agree that 2016 and 2020 were both tainted by some kind of interference, real and/or imagined. Culprits vary, of course, depending on your politics.

Next time, some voters who think they are safely registered could be in for a surprise on Election Day. The future culprits could be Russian and Iranian hackers, or a guy sitting on a lounge at a private club in Florida who weighs close to 300 pounds. “People are saying…”

One thing is sure: courts will take center stage again, leading to endless arguments about "activist judges," "equal protection," following "precedents," forensic audits, and "judicial restraint." Yet, the Supreme Court may hesitate to step in next time. One reason is that its legitimacy has been under a cloud since Bush v. Gore, and only got worse when it moved to overturn Roe v. Wade.

Just a few years ago the Court’s liberal wing was led by Ruth Bader Ginsberg and Stephen Breyer, both Bill Clinton appointees. In Bush v. Gore, they were joined in dissent by John Paul Stevens, a moderate appointed by Gerald Ford, and David H. Souter, appointed by Bush's father. Souter was also one third of the court's centrist troika, which included Reagan appointees Anthony Kennedy and Sandra Day O'Connor. 

Between 2008 and 2016 President Obama’s appointments of two women — Sonia Sotomayor and Elena Kagan — to replace  Souter and Stevens did not alter the basic ideological balance. But Trump’s appointment of three judges in four years (2017-2020) moved things radically right. Today John Roberts, the conservative Chief Justice, no longer controls his allies.

In 1992, the liberal majority revealed its power when upholding Roe v. Wade as a protected "liberty" under the Constitution. Admitting that political factors underlay their opinion, they made the argument that "changed circumstances may impose new obligations" and warned that overturning Roe would create tremendous political and social turmoil. 

On the other hand, Kennedy and O'Connor joined with the conservative triumvirate -- the combative Antonin Scalia, the equally partisan William Rehnquist, and their silent partner Clarence Thomas — in the fateful Dec. 12, 2000 ruling that made George W. Bush president. Twenty-two years later only Thomas remains. But the conservative replacements — Alito, picked by George W. Bush, and Trump’s troika — Gorsuch, Kavanaugh and Barrett —  are even more nakedly partisan.

In his dissent in Bush v. Gore, Stevens said the majority's choice played into the most cynical attitudes about judges, and would undermine public confidence. An understatement, it turns out. He also wrote, "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law.”

In 2024, we really may never know who actually won the presidential election. It could be due to cyber war, sour grapes or simple incompetence. But more "judicial activism" is the last thing people will want or accept when the next crisis comes. It’s a recipe for state’s rights and legal chaos.

Doubts about the independence and fairness of courts have been building for a while. The looming decision to essentially rescind the right to an abortion could be a fatal blow to the shaky legitimacy of this final institutional guardrail. Echoing Scalia's dissent when his colleagues declined to overturn Roe, interference — in his case, after the 2000 presidential election — "fanned into life an issue that has inflamed our national politics in general."

Clarina's Choice: Moving On for Women's Rights

Lest I leave the impression that Vermont has always been fertile territory for free thinkers, consider Clarina Nichols, who ultimately traded Vermont for Kansas to fulfill her dreams.

     In 1847, Nichols' articles deploring the lack of property rights for women sparked state legislation granting married women the right to inherit, own and bequeath property. Two years later her efforts led to more reforms; laws allowing women to insure the lives of their husbands, legalizing joint property ownership, and broadening inheritance rights for widows.
     But she was frustrated. Until women had the right to vote, Nichols felt they would be basically powerless. She wrote: “We are the best judges…and should hold in our own hands, in our own right, means for acquiring the one and comprehending the other…Women must look to the ballot for self-protection.”
     Even as a young girl Nichols understood the importance of a “scientific” education for women. If they received any schooling at all, the main lessons focused on home skills like needlepoint, comportment and etiquette. At her graduation in 1829, she delivered a speech titled “Comparative of a Scientific and an Ornamental Education for Women.”
     After briefly teaching she married Justin Carpenter, a Baptist minister, and the family moved to Herkimer in New York.  The next decade was spent raising three children and running a seminary for young women. But in 1840 she returned to Vermont – with the children but not Mr. Carpenter – and started writing for the Windham County Democrat. Three years later she divorced. Six days after the divorce was final she married George Nichols, editor and publisher of the Democrat.
     When her new husband became ill she took over the editing, and under her direction the paper’s circulation grew from 100 to 1,850. She made it more literary and used its pages to advocate for women’s rights and abolition, as well as against the use of alcohol.
     She told an 1851 Women’s Rights Convention held in Worcester, Massachusetts, “It is a fact that our wearing apparel belongs to our husbands and when they choose to pawn or sell our clothing for drink, they can do so.”
     Nichols’ suffrage work led to a long-standing friendship with Susan B. Anthony but conflict with Vermont’s legislative establishment. Her first appearance at the Statehouse – the first ever by a woman – outraged many people in the audience. The editor of the Rutland Herald threatened to come to the capital with a man’s suit and dress her in it.
     After Nichols testified in favor of women’s right to vote in school district elections, the Education Committee concluded that “women are the proper educators and trainers of the young.” But committee members remained unconvinced on suffrage. Instead of acting on the issue, they recommended that women “entrust the advocacy of their views and interests to a male relative or friend.”
     Nichols decided that it was time to try a state where she could be more effective. One of Vermont’s restless spirits was moving on.
     She picked Kansas, in part, because a temperate climate might improve her husband’s health. But George Nichols died just a year after the move in 1854. Still, her basic hunch was correct. In Kansas, she was able to win campaigns to insert many rights for women into the constitution, including voting rights in school elections. In 1866 she moved to Washington, DC with her daughter, where she ran the Home for Colored Orphans.
     The same year that Nichols left Vermont Lucy Stone, already a leading voice for abolition and suffrage, gave a fiery speech in Randolph. People should withhold their taxes until women had the right to vote, she urged. But it was her appearance that created the real stir during that visit. Focusing on her attire, reporters wondered why attractive young women in the audience were parading around in “unfeminine” bloomers. Stone and other activist women had become admirers of Amelia Bloomer’s trousered dresses, which permitted women to work more freely, especially when carrying things.
     Vermont’s leaders resisted giving women the vote right up to the end. When a suffrage bill was passed by the state legislature in 1919, Governor Percival Clement called it unconstitutional and refused to sign. In 1920, when the state was pressured to ratify the 19th amendment, the governor again declined to help, refusing to call a special legislative session.
     It became national law anyway. A year later, Edna L. Beard, a former school superintendent, became the first woman elected to the state legislature.

Progressive Eclipse: Chapter One -- A Legacy at Risk

October 6, 2011

It was hard to ignore the rumblings of a political upheaval. Another election for mayor was coming up in Vermont’s largest city, a multi-million dollar Burlington Telecom lawsuit accused the administration of fraud and breach of contract,  and the mayor faced widespread criticism – often from within his own Progressive Party base. The atmosphere was as volatile as it had been in three decades.

Bob Kiss and Kurt Wright

Four candidates to replace Mayor Bob Kiss had announced by early October, and at least three more were considering it. The official list included three Democrats – Airport Commissioner Miro Weinberger, State Representative Jason Lorber and City Councilor Bram Kranichfeld -- and one Republican, Kurt Wright, a council member and state lawmaker who had come close to beating Kiss three years earlier.

All of them were hammering Kiss about BT finances and other examples of what they considered the administration’s mismanagement, deceit and failure to communicate.

One of the possible contenders was State Senator Tim Ashe, a former City Council Progressive and now perhaps the party’s best hope for an alliance with Democrats. There was also Assistant Housing Director Brian Pine, another former member of the council, and Ward 3 Progressive Councilor Emma Mulvaney-Stanak.

Mayor Kiss was mum about his plans, even at Party meetings. But the push for someone to challenge him, along with an upsurge in local activism on issues like his attempt to forge a climate change partnership with Lockheed Martin, pointed to a tumultuous winter political season. No matter what the weather, the upcoming debates were sure to be heated, tense and well-attended.

Questions were also being raised about the election process itself, specifically about whether people should continue running with party labels. In September the City Council had narrowly rejected a resolution to look at changing the city charter to eliminate party designations for mayoral and City Council contests, but only after a debate so intense that Board President Bill Keogh had to angrily hammer his gavel and call a halt.

The discussion highlighted the unique nature of Burlington’s political landscape, three political parties uneasily sharing legislative power, and an executive branch run by Progressives for all but two of the last 30 years. It had all begun in March 1981 when Bernie Sanders unseated long-term incumbent Democrat Gordon Paquette by just 10 votes.

Three decades later, despite agreeing with Progressives on many issues, local Democrats saw a strong chance of recapturing the city’s most powerful job for the first time in decades. The reasons for their optimism: Burlington’s finances were in trouble and the mayor was unpopular, widely considered neither accountable nor transparent enough. On September 16, that view received a boost when Moody’s Investors Service warned that the city’s financial woes could lead to a further downgrade in its credit rating.

At Miro Weinberger’s campaign announcement on September 13, held next door to City Hall in a former firehouse managed by Burlington City Arts, the first-time candidate charged that Mayor Kiss had put the city in “an exceptionally poor negotiating position.” An apparent reluctance to discuss the details of Burlington Telecom finances had “left a mood of anger and anxiety about our future,” he charged. The 41-year-old housing developer also criticized the administration’s failure to secure funding before starting on a $14 million airport parking lot expansion.

 

Jason Lorber was first

Jason Lorber, the first candidate to enter the race, had a similar critique. Weighing in on the Telecom lawsuit, the state legislator and gay rights activist, who made a living as a consultant and standup comedian, said BT’s woes were a prime example of the need for change. Although promising not to assign blame, he nevertheless accused the mayor of failing to be sufficiently open about city affairs. Local residents “don’t want decisions being made behind closed doors,” he charged.

On his campaign website, Bram Kranichfeld, a criminal prosecutor at the Chittenden County State’s Attorney’s Office, defined himself as “the people’s choice” and said he wanted to “restore trust, accountability and fiscal responsibility.” At 31, he was the youngest candidate, and counted among his backers a former Democratic mayoral candidate, Paul Lafayette. Although Kranichfeld had opposed the move to drop party designations, he frequently talked about a “non-partisan approach.”

Kurt Wright had made his official announcement on September 18 during appearances on a morning TV news program and local radio talk. Also promising to restore trust and credibility, he said, “Job No. 1 for me will be to restore fiscal responsibility to the city and restore our credit rating.” As a Republican who had run twice before, he knew that the less people thought about party allegiances the better chance he had with what had become over the years a decidedly liberal electorate.

Politics by the numbers

When Mayor Peter Clavelle decided to retire in late 2005 after 15 years in office, he and his allies didn’t believe that another Progressive could be elected, or that the local party would long survive. As a result, a number of local progressive figures decided to endorse Hinda Miller, a Democratic state legislator and entrepreneur running to succeed him.

The leaders of Burlington’s Progressive Party weren’t willing to accept that prognosis, however, and turned to Kiss, a veteran human services bureaucrat and state legislator. He ended up beating Miller by about 9 percent and became the first Burlington mayor elected using instant runoff voting. Rumors circulated that some GOP supporters were urged privately to give Kiss their second place vote rather than indirectly help the Democrat. In any case, the conclusion that the city’s progressive era was over proved to be premature.

In office Kiss continued along a pragmatic, sometimes progressive path – lean budgets, “modest growth” and innovations like BT, a municipal cable, phone and Internet service operation. Business Week called Burlington one of the best places “to raise your kids,” and the Centers for Disease Control crowned it the nation’s “healthiest city.”

In the 2009 race, despite various political affiliations, five mayoral candidates embraced a similar mixture of liberal rhetoric and practical proposals that first emerged during the Sanders era. Wright talked about leadership and Democrat Andy Montroll argued that Burlington was “coasting along.” Neither questioned how the city was being run.

During one debate, Montroll said that the best course was to focus on “what we have,” while Independent challenger Dan Smith stressed the need to “reinvent ourselves” in a “post-partisan” era. The only substantive criticism of Kiss revolved around his handling of accounting and personnel matters.

In the end, 8,980 people voted – about 1,000 less than had three years earlier – and Kiss was re-elected. In the initial IRV count, however, Wright received 2,951 votes, beating Kiss by almost 400. In the second round of the runoff, the votes of independent Dan Smith and Green Party candidate James Simpson were redistributed to the remaining three. Wright was still ahead, with 3,294 votes to 2,981 for Kiss.

But when Montroll’s votes were redistributed for a third round, Kiss pulled ahead with 4,313, beating Wright’s 4,061. The Republican’s supporters were not pleased and mounted a campaign to repeal IRV, which they succeeded in doing by 52 to 48 percent the following year.

In 2012, the race would be decided the old way, the top vote-getter over 40 percent. The question was whether Kiss would even seek a third term. He was no longer popular or even trusted with many locals, and seemed tired of the games. But even if he opted out, the Progressive Party faced an uphill battle with almost any candidate. That’s why politicians like Ashe, with ties to both Progressives and Democrats, were being recruited, and why Pine talked about reaching out beyond the base.

Burlington’s “third party” had evolved from an informal coalition after Sanders became mayor into part of a statewide electoral organization. At its height, it had almost half the seats on the City Council. But in 2011 there were only two Progressives, both representing Ward 3, heart of the city and once a Democratic stronghold.
 

Kiss was beleaguered from both the right and left by criticisms about openness, finances and BT, a major progressive initiative at risk of being sold or sparking a major financial crisis. Thirty years after Sanders first local victory Democrats dominated the Council, and along with Republicans, envisioned a return to executive power.

As Bernie put it back in 1981, it was time for a change – real change.

 

NEXT: When Lockheed Came to Town