Supreme Court Votes for Mass Unemployment and War with Iran
Over the past 22 years, the United States Supreme Court has made half a dozen decisions that have significantly diminished the power of voters and markedly increased the power of parties and corporations to decide elections.
In 1988, in Burdick v. Takushi, the Court ruled that voters do not have a right to contested elections. The issue involved a resident of Hawaii who went to vote and found only one name on the ballot. Asked how he could “write-in” he was told he couldn’t. Going to court and winning on the appellate level, it was reversed by the Supreme Court on essentially procedural grounds. No one could figure out whether the ban against “write-in” voting was administrative or statutory, so the voter was out of luck. The Supreme Court had a three part test for intervening in a state election dispute. Burdick v. Takushi did not meet it, so it reversed the appellate decision. More than that, it ruled that the state’s procedures for getting on the ballot were good enough, no need for a last minute escape clause in case of a death or unexpected event between the filing deadline and the election. Lisa Murkowski’s victory in Alaska could not have happened in Hawaii.
The next blow to democracy came in 1998 in Arkansas Educational Television Network v. Forbes. Ralph Forbes was an independent candidate for Congress in Arkansas’s Third District when he was prevented from participating in a candidates’ debate sponsored by the publicly funded Arkansas Educational Television Network. This happened in 1992 when Governor William Jefferson Clinton, from Arkansas, was running for president of United States. In the end, the Supreme Court ruled that publicly funded broadcasters had the same editorial rights as private broadcasters and could use their discretion in covering the news to exclude an independent candidate who was only polling 2.5%. This decision, in effect, meant that the voters who signed Forbes’ nominating petition had their taxes used to prevent the candidate they supported from being heard. This is a clear violation of the First Amendment. Government action was denying Forbes his freedom of speech while promoting that of his Republican and Democratic rivals. The premise of the decision is absurd. It says, essentially, all that matters is who wins. If a candidate can’t win, then they need not be heard. This prevents new ideas and perspectives from entering the debate and is one reason why there are no new ideas available to help the country emerge from its current economic crisis. Even though Republicans and Democrats combined are less than half the electorate, the reason Republicans and Democrats are almost 100% of the elected officials is because the electoral system is stacked in their favor by Supreme Court decisions like this.
The third catastrophic decision came early in 2000 in California Democratic Party v. Jones. In 1996, California voters passed a question to create open primaries in California. An open primary is one in which any voter can vote in any primary regardless of party registration. The Court ruled that parties, let me repeat that, parties have a first amendment right to freedom of association and therefore holding a primary in which any voter can vote violates the party’s first amendment rights. Please note, in Burdick v. Takushi the court sanctioned single candidate elections. In Arkansas Educational Television Network v. Forbes, it ruled that governments can deny first amendment free speech rights to independent candidates. Now, it gives parties first amendment rights.
These three decisions markedly strengthen the two-party system. If asked, its defenders will say that the two-party system promotes “stability” in contrast to parliamentary systems with their unstable and coalition governments. The problem with this argument is that parties are not mentioned in the Constitution. Furthermore, prescribing party power destroys the secrecy of the ballot. In order to vote in a primary, voters must publicly declare their party affiliation. This is why voter turnout in primaries is so low. In effect, the two-party system puts the nomination of candidates into the hands of small groups of people who are willing to publicly declare their political affiliation, and then voters who value their secret ballots are allowed to choose between the two fringe candidates nominated by both parties. If voters do not like the Republican or Democrat, too bad, the independent will not be covered, and there may not be a write-in option even with one candidate, or a dead candidate, on the ballot. This is one reason for the gridlock in Washington. The people who elect the winner in November are completely different from the voters who nominate them in the primary.
The fourth decision was Bush v. Gore, in which the court elected the loser by ignoring all the intervention standards it used in Burdick v. Takushi. Here the court misused deadlines to prevent the will of the voters from being ascertained. Bush was elected by not counting the votes; is it any wonder that the nation is at war and in an economic collapse. These were predictable consequences of the flawed 2000 election. All corrupt elections yield similar government policies. Elections decided by small appointed bodies in clear opposition to the express will of the voters (Gore won by over 538,000 votes) are not democratic elections. But then again, ruling elites often do not support democracy.
The fifth decision was Crawford v. Marion County Election Board, 07- 21, and Indiana Democratic Party v. Rokita, 07-25 in 2008 which upheld Indiana’s strict picture voter identification law. This law, passed on strictly party lines, is a bald faced attempt to discourage voting by poorer, less educated voters by requiring them to bring picture identification to the polls when they vote. Even though the plaintiffs in this case could not cite a single example of a fraudulent vote in Indiana, the Republicans continually allege ineligible voting to justify procedures that discourage legitimate voters from casting ballots. It is important to remember that voters are required to present identification when they register originally, and every time they vote, they are required to sign their names twice. The poll worker then examines their signature and compares it to the signature obtained when the voter originally registered. Yet, the Supreme Court accepted the argument, when not a single example of fraudulent voting was presented. Justice Stevens, in his opinion, had to go back to the 1860’s and New York’s Tammany Hall elections to justify photo identification in Indiana in the 21st century. In New Jersey, for example, the Republican Party was under Justice Department monitoring for fielding “ballot security squads” in low income neighborhoods that intimidated voters from casting ballots. These incidents occurred in 1981, when Tom Kean won his squeaker victory over Jim Florio. Furthermore, in a nation where voter turnout is declining, where tens of millions of eligible voters do not bother to cast ballots, does anyone seriously think that ineligible people are flocking to the polls to cast fraudulent ballots. The idea is risible. But the Supreme Court is not interested in truth or reality, it is interested in crafting laws for partisan advantage of the majority of justices who do not support the Constitution nor democracy. And they are called “strict constructionists.” The late Chief Justice of the Supreme Court, William Rehnquist, is alleged to have gotten his start in politics intimidating Hispanic voters in his native Arizona.
And finally, this year, in Citizens United v. Federal Communications Commission the Supreme Court ruled that corporations have unlimited power to spend money on elections, it’s their first amendment right to freedom of speech. Remember, voters do not have that right, voters can go into the voting booth and be faced with only one candidate on the ballot and no right to write-in. [Think of voting, making a choice between candidates, as a form of expression or speech.] If they sign a petition to nominate an independent candidate, that candidate can have its first amendment right to be heard quashed at public expense. But now corporations that can not be drafted to fight, or risk their lives in Afghanistan, that can never die and if they become unemployed it does not matter, they don’t even live in houses, eat food, or need health care; they have greater rights to freedom of speech than human beings. Also, corporations were created for specific purposes: to run railroads, build cars, make drugs. Now they Supreme Court has given them all license to be political action committees in addition.
Is there a consistent legal doctrine that explains all these decisions? Indeed there is. It is the doctrine that the Supreme Court makes whatever decision is necessary to increase its own power over elections. To increase its own power it has to emasculate the power of the voters. Every one of its decisions decreased the power of individual voters and, either directly or indirectly, increased the court’s power over elections.
The reason for this is that all the Supreme Court justices are lawyers. Lawyers are trained to win at all costs. That’s what is happening at the moment. Every law, every case, every decision increases the power of the lawyers, regardless of the consequences to the voters, to the economy, to national security, to anything.
So, having elected Bush and set the government on a course of war and economic collapse, the voters rebelled and elected the Democrats to Congress in 2006 and Barack Obama in 2008. Not to be thwarted, the Supreme Court liberated the corporations by overturning a century of law designed to curb the undue influence of money in politics. The result was that the Republicans regained the House of Representatives on a tidal wave of corporate cash.
These geniuses think that a big economic meltdown will make people look longingly at a war with Iran to “get us out of this economic mess.” The received wisdom of wars curing economic ills based on the unique case of World War II has been proved wrong in World War I, Korea, Vietnam and now Iraq and Afghanistan. Nevertheless, preconceived notions die hard.
The Supreme Court has voted for mass unemployment and war with Iran. In truth, either one of those events will be a disaster for the United States. But as long as the nine justices have jobs, they could care less about the consequences of their decisions. What the court is really doing is laying the groundwork for civil disorder by making peaceful change through a democratic political process impossible.
Return to Institute of Election Analysis Home Page