Thursday, April 19, 2018

Spencer Overton

Abstracted from: Spencer Overton, A Place at the Table: Bush V. Gore Through the Lens of Race, 29 Florida State University Law Review 469-492, 469-473 (Bush v. Gore Issue 2001)(81 Footnotes)

In the 2000 presidential election, African Americans made up only 16% of the voting population in Florida but cast 54% of the ballots rejected in automatic machine counts ("machine-rejected ballots"). Across the state, automatic machines rejected 14.4% of the ballots cast by African Americans, but only 1.6% of the ballots cast by others. Racial disparities appeared even when the same voting technology was used. For example, counting machines rejected punch card ballots in predominantly African-American precincts in Miami-Dade County at twice the rate they rejected ballots in predominantly Latino precincts, and four times the rate they rejected ballots in predominantly white precincts.

In their discussions of Bush v. Gore, legal academic commentators have not grappled with the significance of the racial disparities reflected in machine-rejected ballots. Despite the fact that the U.S. Supreme Court permanently halted the manual count of these ballots, doctrinal analysis employing the facts as framed by the Justices has, by and large, commanded the most attention.

Without a consideration of race, however, the conversation about Bush v. Gore remains woefully incomplete. Politics and race in the United States have characteristics that sometimes overlap. Issues of racial identity and racial differences necessarily evoke questions of representation in the political process, particularly among groups that have been historically excluded. Because of the unique role of race in American politics, an examination of race yields important insights that might otherwise go unnoticed.

While this short Essay does not comprehensively analyze all of the components of race in Bush v. Gore, the piece does use race to address normative assumptions about democracy embedded in the opinion. The use of a racial framework shows how these assumptions adversely impact racial minorities and other Americans as well. Professor Briffault acknowledges that the five U.S. Supreme Court Justices who voted to discontinue manual counting of the ballots in Bush v. Gore deviated from the Court's trend of including previously excluded groups in the political process. In a similar spirit, Professor Hasen asserts that Bush v. Gore's break from past cases may "ease the way for future Supreme Court majorities to pursue their own visions of political equality without much thought about whether that vision is supported by existing case law." This Essay agrees with Professors Briffault and Hasen to the extent that they suggest that Bush v. Gore rejected more inclusionary assumptions about democracy articulated in earlier cases, but also asserts that the Court embraced merit-based assumptions that conditioned political recognition on an individual voter's capacity to produce a machine-readable ballot. The use of race reveals how both the focus on individual responsibility and the expressive harm of exclusion that accompany the merit-based vision pose unique problems in the context of voting.

Though some might argue that taking race into consideration is inappropriate in a "colorblind" society, a consideration of race need not entail the employment of a "race card" that trumps all other concerns and singularly insists on race-specific solutions. Instead, just as decisionmakers balance such concerns as individual rights, economic efficiency, and general welfare, race can be used as one analytical tool to be considered in conjunction with other factors. Some might assert that race is irrelevant to an analysis of the machine-rejected ballots, preferring instead to attribute responsibility to voter inexperience, voter illiteracy, and substandard voting equipment in particular jurisdictions. These explanations, however, are not pre-political or randomly distributed throughout society but disproportionately impact certain populations due in part to past state-sponsored racial discrimination. A consideration of race allows scholars and legal decisionmakers to avoid the pitfalls of the "color-blind card," an ideological extreme that mechanically trumps historical considerations, silences discussion, removes relevant issues from the table, and ignores important problems.

Part I of this Essay reviews two opposing visions of democracy that emerged in Bush v. Gore. The Florida Supreme Court's more inclusionary vision prompted it to order that the ballots rejected by machines be counted manually, while the U.S. Supreme Court's more merit-based vision motivated it to prohibit a manual count of the imperfectly marked ballots.

Part II uses race to reveal many of the shortcomings of the merit-based vision of democracy. Although the Court's facially neutral, merit-based criteria focus on individual responsibility, they interfere primarily not with individual rights, but with the ability of groups of voters like African Americans to identify with one another as a political community, to create alliances with others of different backgrounds, and to use the vote to enact political change. Further, the lens of race exposes how merit-based criteria convey an expressive harm of exclusion that carries particular potency in light of a history of poll taxes, literacy tests, and other devices used to suppress political participation by African Americans.

While the merit-based vision's adverse impact on African Americans should prompt concern in and of itself, Part III explores how the shortcomings of the merit-based vision adversely impact other Americans.

 

 

Cf. Langston Hughes, I, Too, in THE NORTON ANTHOLOGY OF AFRICAN AMERICAN LITERATURE 1258 (Henry Louis Gates Jr. & Nellie Y. McKay eds., 1997) ("I am the darker brother. They send me to eat in the kitchen when company comes .... Tomorrow, I'll be at the table when company comes. Nobody'll dare say to me, 'Eat in the kitchen,' then .... I, too, am America.").

Acting Professor of Law, University of California, Davis.

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