Saturday, December 02, 2000

Through A Glass Darkly There was also a heavy irony in Mr. Olson's central argument that the Florida Supreme Court had changed
the rules after the game was played. Governor Bush and his people have accused that court of in effect making
an ex post facto law.

Yet at this very moment Bush supporters in the Florida Legislature are polishing up a plan to meet in special
session and choose the state's electors themselves, overriding the people's vote if it turns out to be for Vice
President Gore. That would be ex post facto with a vengeance.

One curiosity is that none of the lawyers seem to have noticed Section 2 of the 14th Amendment. Its framers,
to prevent any Southern denial of the vote to blacks after the Civil War, provided that a state lose
representatives in Congress if it denied the right to vote "at any election for the choice of electors for
president. . . ."

That clause has never been enforced to reduce any state's representation. But the language shows, at the least,
that when the 14th Amendment was adopted, in 1868, the assumption was that citizens, not legislators,
would choose presidential electors. It makes the Florida Legislature's plans look even more brazen.

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