GONZALES’ CONFUSION ABOUT EXPRESS AND CUSTOMARY RIGHTS

During the controversy over the 2000 presidential election, I recall some discussion (perhaps even in the Supreme Court) that voting in presidential elections, at least, was NOT a federally protected right at all – UNLESS state legislatures, in their sole discretion, independent even of the states for which they spoke, CHOSE popular election, as the means of selecting a state’s presidential electors. That decision – popular election of a state’s electors – is always revocable by the legislature (some claim), even after the election.

In counting the electoral votes, of course, Congress need not acquiesce in an outrage – such as a state legislature’s invalidating a popular election for that state’s presidential electors.

The Florida legislature’s post-2000 election threat to award Florida’s electors to Mr. Bush by concurrent resolution was, I believe, the REAL reason for the Supreme Court’s otherwise incomprehensible intervention in that election AND its decision in Mr. Bush’s favor, as well as the Democrats’ acquiescence in that decision.

The myth of popular election of the president needed to be kept alive. Forget about vote fraud and voter suppression in 2000! The US doesn’t have anything approaching the direct election of the president, even in legal theory! State legislatures control everything; and they may elect directly, if they choose.

I, however, hold the view shared by a tiny minority, only: that constitutional crises are best faced, when they arise, rather than avoided. The price of avoiding such conflicts can prove fatal to a country; and there was never a better time than November and December 2000, and even early January 2001, for preventing a Bush administration.

Respectfully,

BRUCE TYLER WICK
Attorney at Law