white house, as we follow candidates on c-span, c-span radio, and c-span.org. look at the bush versus gore supreme court case. the court ruled the vote recount was unconstitutional because it violated the 14th amendment's equal protection clause. legal experts discuss the decision's merits and the precedent it set. the american constitution society for law and policy hosted this 95 minute event. >> hello, everybody. wonderful to have such a great showing today during we want to welcome you to our event, bush v gore, 15 years later.

the supreme court in american democracy. i am caroline fredrickson. i'm happy you are able to join us today. i would like to very much thank you julie fernandes and the open society foundation for hosting us here today in this wonderful space. and for any of those who may not yet be familiar with the american constitution society, we are a nationwide network of lawyers, law students, judges, policymakers and scholars who believe that the law should be to improve the lives of all people. we work for positive change by shaping the debate on vitally important legal and constitutional issues through the development and promotion of high-impact ideas to opinion leaders and the media. and by building networks of

lawyers, law students, policymakers dedicated to those ideas and by countering the activist, conservative legal movement that has sought to erode and during constitutional -- erode in during -- erode enduring constitutional values. today involves the most essential, voting and judicial integrity. today, we revisit the supreme court decision that just 15 years ago halted the counting of ballots in florida and effectively decided the 2000 presidential election in favor of george w. bush. a -- our panelists today will discuss the supreme court equal protection ruling in bush legal or and the impact it has had on election law and equal protection jurisprudence. they will discuss critiques of the supreme court's actions and whether those actions had a lasting effect on the public's confidence on the supreme court as a concert -- is an is edition. -- as an institution.

and finally, they will discuss where we are now, 15 years later, and less than one year from another presidential election. here to moderate the days are -- the day's discussion, i know you are excited, we have joan this cubic -- joan biskupic. she has written several books. she is the author of "sandra day o'connor: how the first woman on the u.s. supreme court became its most influential justice." joan was the supreme court reporter for "the washington post" and "usa today." she is a graduate of georgetown law school and was a finalist for the pulitzer prize in 2015. please join me in welcoming joan and our esteemed panel for today's conversation.

she has been a regular panelist on cbs, a is a graduate of so please law school, join me in welcoming her. [applause] joan: thank you, caroline. thank you all of you for coming here today on this unusually warm december 5 and day, -- december 15 day and two commemorate the 15th anniversary of what some of us feel was just yesterday. i remember where i was. obviously, i was in the pressroom. but i also remember where i was on just -- on december 9 when the justices halted the recount.

as some of you might feel in this room, that was almost as momentous as what the justices ended up ruling. in some way, some of us may believe what set the stage for what happened on the 12th. but think about how eventful those 36 days between the november 7 election and the final results in bush v gore. we have to think of what happened since. george w. bush took the white house. we had the wars in afghanistan -- we had 9/11, just a few months later. we had the wars in afghanistan and iraq. we had a change in the supreme court in 2005 with chief justice john roberts. in 2006, samuel alito. we had the historic election of barack obama. and then two more changes with justice soanya sotomayor in 2009 and elena kagan in 2010. and in some ways, and 2010,

citizens united has replaced bush legal or as a rallying cry politically at least. -- bush v gore as a rallying cry politically at least. just when i think people have stopped thinking about it or stopped asking about it, i will give a speech somewhere, as in last summer in connecticut, where the first question is -- what about that bush legal or? -- bush the gore? but we are here to look at both sides, not just what happened back then, but how the ruling has reverberated through the years. i will start with my immediate left. judith brown diana's -- judith brown-dianis. we also have richard hasen. if we google bush v gore, i think your name comes up second. along with justice scalia saying, please, get over it.

we also have pamela karlan. like judith, she has been in the trenches. most recently as an assistant attorney general in the civil rights division. and kurt levey who filled in. we really appreciate you coming. you are probably the person who will most defend the ruling and bush we gore and we need to hear -- bush the gore and we need to

hear your voice today. he supported many republican appointments through the years to the supreme court and will probably be our real defender among the panelists. their full or bios are in the material. i thought i would start in a breeze your way just to get all of our voices heard before we dig into the real substance. i wanted to ask each of the panelists what really resonates -- what do they really remember most vividly from that period. recall something that sticks in your mind, just a bring us back to it. i am glad to see so many people in the room who i know were at the scene and you will remember what happened. for the few of you are thinking, ok, who was there on the court, it has changed. it was a per curiam opinion.

it wasn't signed by anyone specifically. it was assigned at 10:15. in the majority were chief william rehnquist, dissenting were the more liberal justices, john paul stevens, david souter, ruth bader ginsburg, and david breyer. in the end, with the measured he said was the recount process, as it was described by the majority and as it was going on in florida at the time come is inconsistent with the minimum procedures necessary to protect the fundamental rights of each voter in a state recount. and then it said, the implication was this is one ticket good for one right only. there was plenty of heat on the other side. i will give a snapshot of then

junior justice john paul stevens. we will not know the certainty with -- the identity of the winner of this election. the loser is abundantly clear. judith, what do you remember from those 36 days. judith: thank you for having me here. it is great to be in this room with faces that i remember from 15 years ago. they may look a little different. but it is great. just thinking about bush v gore, in some ways, i get some hives thinking about that time. for me, when the decision was handed down, i was in florida. the thing i remember, two days after the election -- actually,

one day after the election, on the wednesday, my codirector called me and said we need to get on a plane. i remember saying to her to do what? she said we are going to go to florida. we are voting rights letters and we will figure it out. we got on a plane on thursday. and i stayed there for probably the next two months investigating what happened to african-american voters. while all of this was -- there should probably be a statue in florida of someone doing this. i was not looking at hanging chads. i was finding those black voters. that is what i remembered. i remember the intensity of being in labor union hall where they were organizing lawyers from throughout the country. and they had so many lawyers that, at some point, they said to us, hate, we will lend you some lawyers and they actually lent us about a hundred lawyers to help us span throughout the

state to find those black voters whose votes were not counted. rick: thanks for the opportunity to put this together. i am shocked that semi-people still care about this case. it does seem we have not done much to improve our elections since then. i was thinking back to the night of the decision in bush v gore. i was home in california. i was watching on television. i remember the confusion. and what was going to happen next? what is the ruling mean? it took 20 minutes before the opinion was available online. i remember the washington post was the first to have it online. it was before i had the election

law blog. i remember e-mailing out. i remember reading the opinion and tripping over what i consider to be the most -- the greatest understatement in supreme court history which is the one that says the only disagreement is "as to the remedy." seven justices agreed there was a problem with the accounting. the only disagreement was the remedy. for everyone in the country, the only thing that mattered was the remedy. for a teacher or remedies, that is the whole ballgame. we can talk about whether the protection holding was right or wrong. but this struck me as most controversial part of the case. the gore lawyers -- the next day, gore decided he would not go back to the florida court and keep going. when i teach remedies, i talk about your client doesn't care about the reasoning the get you there, only the bottom line. caroline: we will have time for questions. pamela: i want to thank acs for

putting on this event. i want to go back before the decision. what struck me mostly about the election in florida is that it was clear by election day that more voters who had gone to the polls and cast their ballots thought they had voted for al gore than thought they had voted for george bush. but the law was powerless to deal with some of the use problems. the butterfly ballot, for example, some have voting for pat buchanan. even pat buchanan knew those votes were not his. but there were no -- there was no way of giving those back. the people struck from the rolls by a bizarre purge process that ended up striking several thousand black voters on the grounds that they were felons

simple because their names matched the names of felons and they shouldn't have been struck at all. when we finally got to the litigation, the system was already so lot that it was unclear whether any remedies would work. and i think that has stuck with me more than virtually anything else of the case. curt: election night, it looks like gore had it wrapped up. we hung around the election party i was at. we ended up napping on the floor and waking up a few hours later by the news that florida had now been awarded to bush. i remember we wandered down to the white house just to see what was going on there. there were a few hundred people shouting -- i don't remember

about what. then around 3:00 a.m., we got back to my office and turned on the tv and it turned out that bush hadn't won after all. it was going to be what looks like a long contest. just on drama, the ups and downs of that night stick with me. it halted the recount as the florida supreme court had ordered it, but it remained the case and allowed for another recount. we did not know whether bush or

gore was going to prolong it. it may drag out further. in the morning, we got the news. but that is what sticks in my mind. judith: i think we will reverse order. your organization, you have long talked about judicial activism. i think some people in this room and some of your fellow panelists, if there had ever been a case for judicial activism, this might be it. curt: i think this is a bad example of judicial activism. unless you describe it extremely broadly to say that any ideological bias and the politics of the judges play a role, which is basically every hot button issue that comes before the stream -- the supreme court.

i think of it as more of the typical case where you really can make plausible arguments on either side. and less -- and let's face it, judges being him and end ideology and politics play a role. -- judges being human and ideology and politics play a role. a reasoning that cannot be plausibly grounded, i'm not saying the best argument cannot be plausibly grounded in the words of the constitution or statute. i certainly read the arguments on both sides. i think you can make the argument certainly either way. and another hallmark to me of true judicial activism is where the court is effectively acting as a legislature to amend the

constitution or amend a statute. and the court went out of its way not to do that here. ironically, some progressives, that is their biggest complaint. but i think the court was trying to go out of its way not to be activist there. but i hoped at the time that, given the genuine outrage on the part of the left, i thought maybe it -- it might be too strong of a word to say -- but that they had learned a lesson you know, about, friendly, how it feels when the court makes stuff up. but i don't know that anyone learned a lesson. i can certainly point to recent decisions. bergfeld being the most obvious. but i can point to examples where i think the left has backed away from activism and i'm sure you can point to plenty

examples where you think that is true, you -- citizens united being one of them. caroline: rick, do you want to jump in and counter it? pamela: i don't think it was activism, but bad judging. the florida courts would not have been boxed in in the way they had been by the supreme court decision that suggested that the legislature had to be looked at in a very particular way with respect accounting of presidential election ballots. had the supreme court stayed out until the florida court completed the process, there would not have been a arguable equal protection problem that the courts all because all of the ballots would have gone

through the same counting process and there wouldn't have been any colorable claim that ballots were being counted differently in different parts of the state. at the end of the day, there would have been a compartmentalization of the standard. and more people had tried to vote for al gore than voted for george bush and that it should be awarded to al gore. i don't think it was activism in some sense. but i am skeptical of the idea that activism means anything other than people say this is an opinion i do not like. rick: i went back for my 2012 voting wars book. nobody comes in looking good.

everybody probably would agree that one of the problem we had in the election was an out-of-control supreme court. you look at all the decisions made, ideology played such a strong role. in the heat of the moment, it was very difficult for anyone to be objective about it. this is really interesting. florida's ballots are public record. so the ballots themselves were transported to north organization in illinois to have the ballots recounted, after everything is over and bush is already president. what they found, uncontested alice, someone -- on contested ballots, they were much more likely to find a vote for gore than if the counter was republican. it was hard for anybody to be objective even after the fact. in the heat of the moment, these things are so difficult.

it suggests that the problems have to be solved on the front and so we don't have bad ballot design. the margin of error was much larger than the margin of victory in this case. i don't think we know very well who the actual winner was your i agree that -- winner was. i agree that more people wanted to vote for gore than for bush. but in terms of the actual recount, the only way he would have won was if the standard that bush had abdicated would have -- >> so it was really too close to call.

did you want to jump in, judith? judith: so there's the decision and then there is ignored. the one thing that sticks out my head is 137, that number. from our perspective, while people were talking about this decision, while people were looking at the tabs, what they were talking about was that black people in the state of florida were ripped off. that day, there were two lawyers -- they decided they would invested -- investigate the claims of african-americans. from our perspective, now

everybody knows there are hotlines, etc. back then there was one hot line. that day, there were two lawyers from the gambler project -- from the enamel project and one from aa seat he answering that number. and all the calls were coming in from florida. it was based upon that that we went to florida, held a hearing to understand what had happened to people, and then started an investigation. what we found in the case that became an aa cp versus katherine harris was that the secretary of state had engaged in intentional action that took african-americans off the rolls. the purge that happened, that hurt thousands of voters, legitimate voters, we have plaintiffs in our case that had

voted for years, had never been convicted of a felony, were told that they were taken off the rolls because they had been convicted. and then it was found later on that there was no conviction. we had people who had voted for 30 years. all of a sudden, their names were not on the rolls. not because of a purge around felony convictions, but for no reason. there were people who registered for this particular election who did not make it to the rolls. this is well documented on the commission for civil rights report on voter irregularities in florida after 2000. and had we decided we were going to look at all of the issues instead of looking at hanging

chads and butterfly ballots, we would have found that there was artisan manipulation of that election that landed in a different outcome than what should have been. caroline: i wanted to get back to the settlement of the nature of the case. but i am going to bring pamela back to a q and a she had with pam and judge richard poznan. it ran in "harpers" at the time. judge poznan said how close we were to a constitutional crisis. he said "i believe it could have been very bad if the crisis had been unresolved that christmas. do you know who the president would have been on genuine 20th if we had no resolution of the crisis? he said, larry summers. now that he has been named president of harvard, that would have been good training for him. and posner says, he was number

four. but madeleine albright was number three, but ineligible because she was foreign-born. so it's president summers. you wanted that? so if you talk about the notion that were close to a dangerous constitutional crisis. pamela: what a list of potential presidents during [laughter] -- potential presidents. [laughter] there are some candidates who seem well matched with that group. i want to talk about a different art of that lunch we had. i don't think we were close to a constitutional crisis.

we had a month before the electoral college was going to meet yourby that -- was going to meet. by then, we would have had a decision in florida when we or the other. the part of the lunch -- the idea was i would have lunch with dick posner and then they ran a transcript. jack said how bad a decision bush v gore is? i said it is a bad decision, but nothing near korematsu. and then posn said something shockinger. i don't think or a monster was such a bad decision either. -- i don't think korematsu was such a bad decision either. he shocked me. it was the first super close election in u.s. american

history. what was interesting to me is the power and the capital that the supreme court had built up that, once the supreme court ruled, vice president gore saw no way to challenge the court's ruling, even if he thought it was wrong. that is the supreme court, building on its decisions in brown against board of education and in the apportionment -- the

reapportionment revolution had gained capital with the mac of people. that is -- with the american people. that is where the supreme court got things wrong. i don't think we needed to have this as cited by december 12 so that people would have a full two weeks of christmas shopping before christmas day. caroline: i'm reminded that, at the time, that they felt some urgency themselves, that things are out of control, either constitutionally or on the ground. what is your response to that? curt: i agree that things would have turned out differently in

the 19th century and i would not mind going back to that time, not in terms of the values of that time, but in terms of the role of the court. think back on how lincoln handled dread scott, which is to say that it applied to the parties and did not bind others. and you see what happened after oberg fell. clearly, the court went from being, i would say, one of three equal branches to what can only be called judicial supremacy, the dude judicial -- the judicial tyranny. if you really think about it, i bet it is the notion that no one supports in this room.

tomorrow, the supreme court decided to invalidate the 13th amendment. should we all sit by and say, well, you know, it's 5-4, but that is a majority. the idea that there is no limit to what the supreme court can do and we should all sit back and take it. if the end of the day, almost no one agrees with that. rick: i was thinking back to the part in the opinion where i believe it was kennedy who probably wrote this. the part that says it's an unsought responsibility. we had no choice. the court did not have to take the case. it reminds me of a sign in citizens united. we have been asked to determine to overrule often. you are not asked. we can bring in oberg are felt here. the justices have you that he

has the responsibility to answer -- to answer all of the nation's major questions. there would have been a vote. the constitution gives that contest that power to congress. it could have been a political decision. it might have been a decision that had a president bush winning in the house and al gore casting the tie vote in the senate for joe lieberman. that could have happened. but the decision was meant to be a political one and not one [indiscernible] . caroline: thanks. the harris case ended up in a settlement and that was through the first of what we've seen through the years now as challenges to restrictions at

the ballot barks -- ballot box, how people for sure counted, some people challenging and saying there is voter fraud out there area judith: -- out there. judith: after months of investigating, we actually filed the case in january 2001. it was filed against catherine harris and six of the counties and the division of elections. we were challenging everything that we knew happened. from the purge and people may remember there were two companies involved. we actually added one of them as

one of the defendants because we knew we needed information about what katherine harris had instructed them to do. and we filed claims under the voter registration act. part of this was, you know, this case really -- the harris case really for us was the first time in which we actually saw that there were these cracks in our democracy and the way in which we administer elections really came to a head. and the secretary of state all of a sudden had so much power that people -- americans didn't know how much the secretary of state had your nor did americans know the power the individual election officials had during so you had 67 counties in the state of florida that were running elections six to seven different ways. and they actually still run elections away. what we did was funneling this

-- settling this case, looking at ways to fix the system. it was a proactive case here we knew we did not want to file the case to actually impact the outcome of the election. but what can we look at moving forward. that kind of litigation actually led to the help america vote act, in which provisional ballots -- we did not have provisional ballots back then. the people showed up and couldn't vote. sorry, there is nothing we can do. this actually help put money into the states and the locales with the machines that were needed to get rid of some of those bad machines that we all know about. but also to put in provisional ballots. we were also looking at the purge and how the state handled

the polar -- the purge. and choice point got out of the business. this is now what we call election administration. there is a whole field of worry as do election administration, looking at election laws and how election officials are administering and at the state laws. and if we look at the bush v. gore case, one thing i would take from that case that has had an enduring impact really is the court's kind of reminding states that actually they are the ones to establish whether or not there is a right to vote and how that right to vote will be executed. it's just a reminder to them and it has opened up the floodgates to a host of voter suppression laws that we have seen since 2000. if we go to the indiana voter id case and then moving forward into voter suppression that we are challenging in north carolina and other places.

this is the partisan lesson that we have learned out of florida. they have carried on and endured and we have seen laws passed for partisan manipulation of voting, in really in which he -- in ways in which you can see state legislatures passing these laws were you can save a little off here and a little off there and you might get the 537 votes. that is probably the legacy. i also think that, for civil rights law, while bush v. gore may not have had a big impact, it did underscore the problems that we see in elections that have civil rights of locations. caroline: before we go to the impact on the law itself, i know that richard has followed the jurisprudential, pam, do you want to add some of the trenches of the voting rights legislation? pamela: before 2000, you did not see in the previous decade a large argument, a large popular

argument that there was substantial vote fraud going on and therefore we had to tighten up voting laws. in the last 10 or 15 years, the idea that there is substantial vote fraud in the united states and that that substantial vote fraud can be stopped somehow by restricting the ability of individuals to cast a ballot and have it counted has gotten huge purchase. so the help america vote act itself doesn't actually help that many americans to vote. in part because it allows for provisional ballots, it doesn't have any standard for whether or not those ballots should be counted or not.

many will cast provisional ballots and think that has given them the ability to vote only to find out that those votes don't get counted. the rise in the right d laws, the cut tax in the last decade or so is almost a direct product i think of the environment they came out of bush v. gore, an environment which was one of deep this -- deep mistrust of people's ability to vote and the sense that large numbers of people were voting that shouldn't the voting on the light -- shouldn't be voting and the life. and the argument that there is no right to vote for president unless the state has given you that right and then the equal protection clause only applies to the counting of the ballots and not to the access to the votes in the first place. of course, we haven't mentioned yet one of the other pieces of bush v. gore, which is a kind of -- i guess it is like the man in the high court, a ripoff of the man in the high castle. the question of the counterfactual. as a direct result of bush v. gore, we have a chief justice who, from his early days as a

lawyer, had a deep distrust of federal voting rights laws. that itself has helped shape the discussion and the decisions going forward, keeping our eye on as we get into the discussion of the impact of the case, the broader impact of the case, not just on the election and not just on election law, but everything that follows from that. curt: i think pam is right that a lot of the concerns among conservatives about the other fraud do spring from bush v. gore. i can only tell you how it looked from the perspective of the conservative legal community.

there was absolute horror at perception that bush had, in the view of many -- i'm sorry, that gore had almost owned the election by asking for recounts in three heavily democratic counties, by then doing the democratic [indiscernible] in those first and not getting to the republican precincts. that left a lot of scars among conservative blair years -- conservative lawyers, that elections are not sacrosanct. progressives are trying to make this as partisan as everything else and we need to fight back. we can debate whether it is an overreaction or a commensurate reaction. i know we are not going to agree on that today. but that definitely was the psychology, you know, when i sat in rooms with other conservative lawyers. that was definitely the feeling and the motivation. judith: the idea that, you know, that the election was stolen when there was a secretary of

state -- i really think people should go back and read this in the -- this report, this investigation by the u.s. commission on civil rights. actually, my colleague eddie hill was the council at the commission of civil rights of the time and ross examined katherine harris and others who were involved in the purge. and just incredible admission by the company that was hired by the state to do this purge in which the company knew that the purge was wrong and that it was going to leave to false positive, and that there were going to be people who would be

purged or had never been convicted of a felony. and that the secretary of state said it's ok, that she wanted to cast a broad net, that she wanted an 80% match on name, date of birth, and address. and that she knew there would be people who had not been convicted of a felony who would be purged, but that is what she wanted done. and despite having the experts there at the table telling her that this is going to create a problem, she went forward with it. so that peace, not mentioned in bush v. gore, because again, the race claims were not a part of that case, but the fact that we could create a whole image and myth about voter fraud based on a stolen -- a pseudo-stolen election when in fact the people who were in charge were doing things that they knew would cast african-americans off of the ballot is wrong. and we have had to endure this whole myth around voter fraud with no credible evidence of it.

our colleagues are always reminding us that you are more likely to be struck by lightning than find a suitable case of voter fraud. -- find a prosecutable case of voter fraud. the responsibility and liability for this was laid at the feet of the secretary of state and some other people who were working with her. caroline: rick, i know that you want to address that. and then going to the broader affect. rick: i think the primary lesson that, not lawyers, but political operatives learned was that, in a close election, the rules of the game matter. what we have seen, it started with partisan secretaries of state.

florida has made it worse by making the position appointed rather than subject to the will of the governor. wisconsin is poised to get rid of one of the few nonpartisan election boards in the country. what has emerged is red state election law and blue state election law. casual voters who were not registered, they tend to be poor, minority voters and tend to vote democratic.

in red state election law, premised on exaggerated claims of voter fraud, uc moves to make it harder to register to vote. and blue states, like my state of california, where you see a democratic majority good for the state, it is easier to register to vote. this is from the position of nonpartisan election administration. we have our election rules being set by partisans and done in a way that is likely to help the political party that is in power. i think that is problematic. caroline: rick, i want you to step back. you have written on just about every election law case that has come up since. i believe the supreme court itself has only referred to bush v. gore once. and it was clarence thomas. rick: someone called bush v. gore the legal folder marked -- the legal voldemort. the case whose name shall not be named. in the lower courts, and initially some courts had given bush v. gore as it will be tension holding some legs.

in parts of california, parts of florida where you had punchcard machines, you had a chance where one vote would not count over another. or does the case have no prejudicial value at all? there are all as a theory's out there. for a while, there were some courts making what progressives called lemonade from lemons, taking this opinion and using it to forge greater equality and how voters are treated. there was a 2003 case involving the shelf when you recall election because punchcard machines in california. it is a good thing that that case wasn't close. 9% of the ballots did not vote yes or no on whether the governor should be recalled. it looked for a while like it

had legs. but then jurisdiction after jurors diction, the circuit shut it down. but now, in the sixth circuit in the last three years, home of ohio, the court has reinvigorated the bush v. gore is the protection, including the distribution of provisional ballot. there's already a case that is pending challenging some of the cutbacks in voting rights in ohio. it could end up in the supreme court where the court will have to address the question. does bush v. gore have precedential value? caroline: i'm reminded that chief justice roberts got on a plane in november 2000 at the request of ted cruz, which is ironic now that ted cruz is bashing him. but it was ted cruz who call john robertson succumbed out here right away and he did here

the now chief -- and he did. the now chief then worked with ben ginsberg and the others on the republican party to craft their argument. i am thinking of where he has ended up, for example, in shall be county, the ruling that cut back on section 5, not section 2. what kind of blind you see, if any, in bush v. gore and shelby versus county? pamela: the composition of the supreme court at that time of shelby county and its predecessors are a product of the 2000 election. it is hard to figure out who would have been nominated

because three of the justices who had replaced since bush v. gore were voluntary departures from the supreme court. as many of you know, justices seem to be more and more timing those voluntary departures in various ways. very hard to know who would have been present by 2004, but pretty clear i think that coming in 2005, democrats had held the white house even through the 2004 election -- even if republicans had won the 2004 election, john roberts would not have been position to go onto the supreme court. because as a lawyer from private practice, he would not have had the same profile he had as a judge on the d.c. circuit. and obviously, -- that would be a very different court. we knew in part that he wrote the lower court decision in shelby county upholding the constitutionality of the voting

rights act. the chief justices' involvement in voting did not begin with his getting on a plane in 2000. he had been in the justice department in the reagan administration. he was a skeptic of the voting rights act. where the final move had been made in the interim, i think him a apart was the supreme court's retreat that restrictions should be subject to strict scrutiny under the equal protection clause to sort of undue burden standards that they adopted for the actual right to cast a ballot and have it counted in the indiana crawford case that judith alluded to earlier. and that allows for a great deal more fluidity and a great deal more flexibility, both in the supreme court and in the lower courts on whether to find any particular restriction on the right to vote to violate either

the voting rights act, where it comes into play in the question over whether or not a particular law has a tenuous justification and under the fourth team to amendment constitutional right to vote. i think that is worthy bush v. gore -- where the bush v. gore case moves into the more recent cases, by denying that there is a fundamental right of the world and treating that -- right to vote and treating that right is something that needs to be balanced. caroline: curt, what kind of comparisons would you draw? curt: what jumps out at me is sort of the contradictory argument that i hear from progressives when we are talking about those two cases. one of the complaints that progressives make about bush v. gore is that the supreme court mismanaged something -- i shouldn't say mismanaged --

micromanaged, in their view mismanaged, a matter of state law. yet the preclearance section of the voting rights act, that is all about micromanaging, about jumping in early and negotiating what federal bureaucrats think is acceptable. and also, i have heard it today, several of the panelists have said the supreme court's mistake is it did not allow things to proceed. it jumped in. that is what preclearance does. preclearance not only doesn't wait for the votes to be counted, it doesn't even wait for the election procedures to be implemented. it is all about jumping in and second-guessing.

i'm not going to say which is right and which is wrong, but there is definitely a contradiction. pamela: there is no contradiction there at all. the preclearance regime is the product of the democratic process. it is the process that coniston acted in this law, to say that the core jumping in and claiming a constitutional problem is the same thing as congress saying we think there is a demonstrated problem. and the demonstrated problem is indicated both by the stuff that judith talked about that happened in florida, which is a state largely not covered by preclearance, which is why they could have these purges and why they could change the election laws and the way they did. and on the other hand, most of the vote suppression stuff that we are seeing today, huge amounts of that not only could be blocked by preclearance, but were blocked by preclearance before the supreme court struck down the formula for preclearance in shall be county. curt: your argument is that the supreme court was interfering with democracy. but that is also the argument in bush v. gore.

that it had the constitutional right to be the final word in this case and that the florida supreme court had overruled it. it is exactly the same issue of democracy versus court second-guessing. caroline: we are two minutes before we go to questions. judith: on shelby, there is a history about why we had section 5, a robust section 5 and why we needed federal intervention. we could read lots of books about that if we need to. secondly, when section 5 preclearance happened, the states have the opportunity to provide information about the way in which it will play out. so it's not like there is no due process for a state before a court or a department of justice

actually rejects it. this is not the same as saying, you know, slow down let the state actually get to the point where they counted, they count everything and then go to the courts. it is a very different situation and i think you are obscuring the difference. curt: let me remind you that florida also had the chance -- the florida supreme court also had a chance. it was warned the first time that the legislature's power with regard to electors was plenary and it ignored that and went ahead and overruled the legislature again. again, i can make the same point you are making on the other side. caroline: i'm going to let rick jumping here. i think everybody here knows what section 5 is. biting in case, that is part of the voting rights act of 1965 the required certain states, mostly in the south that had a history of discrimination, to get any kind of ballot or electoral change cleared by the justice department or special court before it was enacted.

we just all referred to it as section 5. rick: i want to make a brief observation. i think joey fishman from the university of texas pointed this out. if you look at shelby county written by john roberts, if you look at the first line of the mccutchen case, the most recent case on the campaign finance area, the first sentence is about democracy and about the right of donors to be able to have influence over their representatives and that is an appropriate way.