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"Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election," Justice Stevens said.
"Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election," Justice Alito continued.
When he was chief justice, William Rehnquist wrote about the 1876 presidential election; Justice Stephen Breyer's "Active Liberty" set forth a specific view of the Constitution.
The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, "is the Nation's confidence in the judge as an impartial guardian of the rule of law".
"The protections that the First Amendment affords to the internal processes of a political party do not encompass a right to exclude nonmembers from voting in a state-required, state-financed primary election," Justice Stevens said in a dissenting opinion that Justice Ginsburg joined.
But on the Friday before the election, "Justice for All NC" — an independent political committee whose funding came mostly from out of state — dropped aTV ad depicting a scowling Ervin and asking: ''Sam Ervin.
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"Maybe you shouldn't have judicial elections," Justice Scalia mused last spring at the argument of the White case.
"The notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections," Justice Kennedy wrote in the passage cited by Justice Alito, is "antithetical to the First Amendment".
If Senator John Kerry had won the 2004 election, Chief Justice Roberts and Justice Samuel Alito Jr., conservatives who have led the court to the right, would not be on the court.
In the 2012 election, Chief Justice Roberts wrote, "African-American voter turnout exceeded white voter turnout in five of the six states originally covered by Section 5".
"It took the case and decided it at a time when it was still a big election issue," Justice O'Connor told the Chicago Tribune editorial board on Friday.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com