Election 2000

George Bush won. But at what cost to the law?

The Supreme Court Shot Itself in the Foot While Shooting Down Al Gore

By Mike Godwin

For any constitutionalist, the proper reaction to the U.S. Supreme Court's majority opinion in Bush v. Gore is dismay. In dispensing with the Florida high court's efforts to resolve a confusing election-code tangle, derailing the election-contest process in Florida, and sidestepping the constitutionally established mechanisms for deciding disputed elections, the U.S. Supreme Court has done more than exceed the bounds of limited judicial power -- it also confirmed the most cynical view of how the nation's top court operates.

At this point, if you suspect that I'm a Gore supporter, you're right. But before you dismiss my complaints as Democratic whining, let me explain that I haven't lost a moment's sleep over the fact that the other guy won. And it bothers me not a whit that the candidate who lost in the popular vote count won in the Electoral College. What's more, I don't even blame Bush or his team for what the Supreme Court did wrong -- I'd be first in line to defend the right and prerogative of both the Gore and Bush teams to take their election disputes to state or federal courts.

In order to get a handle on what the Supreme Court did wrong in Bush v. Gore, it helps to look at the Florida Supreme Court's decision in Gore v. Harris -- the 4-3 decision ordering a statewide manual recount of the "undervote" ballots in all counties in which those ballots had not already been manually tabulated. What you see in the Florida high court's opinions in Gore v. Harris -- in both the majority opinion and in the dissents -- are jurists laboring under excruciating constraints to get the right legal answers to a complex legal problem.

The truth about the Florida Supreme Court justices' handling of Gore v. Harris runs counter to a couple of myths purveyed by partisans and pundits about that high court, whose justices were appointed by Democratic governors. But the partisans and pundits are off-base. To underscore where the U.S. Supreme Court went wrong in Bush v. Gore, let's clear away the prevailing myths about the supposedly partisan Florida Supreme Court and give its justices credit for what they, unlike their federal counterparts, did right.

Myth One: The partisan, "Democrat-dominated" Florida Supreme Court screwed up its own state law in its eagerness to give the election to Al Gore, so the U.S. Supreme Court had to step in to correct the problem.

In reality, the Florida legislature had presented the courts with a crazy quilt of ambiguous and/or self-contradictory election laws. Additionally, the Florida Supreme Court was faced with a decision in which a trial court judge (in the word of the majority opinion) "did not make any findings as to the factual allegations made in the complaint and did not reference any of the testimony adduced in the two-day evidentiary hearing, other than to summarily state that the plaintiffs failed to meet their burden of proof."

Apart from seeming to dispense with his role as fact-finder, Judge N. Sanders Sauls also seemed to conflate the "protest" and "contest" phases of disputing an election in Florida (and the differing burdens of proof required in each phase). When a trial court judge reaches factual and legal conclusions in a summary, arbitrary, or legally questionable way, he creates the kind of issues that state appellate courts were created to sort out. And a fair-minded reading of the Florida Supreme Court's decision shows it struggling mightily to do so fairly and evenhandedly. Consider: Of the five arguments made by Gore's team, the Florida Supreme Court's four-justice majority accepted only three. Ruling against Gore on the other two arguments ensured that some additional Bush votes would be included in the final count, and that the additional 3,300 votes from Palm Beach County, most of which were thought to be for Gore, would not be counted. Also, three of the court's seven Democrat-appointed justices would have ruled against Gore altogether.

If the Florida Supremes were really the judicial-activist, partisan-Democrat meddlers its GOP critics say they were, they would have come up with some chad-centric standard as to how to interpret ballots that vote-counting machines rejected. Unfortunately for Al Gore, it was the refusal of the Florida Supreme Court to legislate a new, precise, statewide standard for interpreting ballots -- a refusal to be a judicially active, changing-the-rules-in-the-middle-of-the-game kind of court -- that led the U.S. Supreme Court to decide that Florida's election-code provisions violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Myth Two: The Florida Supreme Court usurped the prerogative of the Florida legislature to decide how its state's electors are chosen, in violation of both state and federal law.

In fact, the Florida Supreme Court was doing just what it was supposed to do, consistent with Article II of the U.S. Constitution, with the federal elector-selection statute, and with state election law. It's true that Article II (later modified by the 12th Amendment) gives to state legislatures the power to pick a slate of electors for the Electoral College. But that doesn't exclude the state courts from playing any role. Federal lawmakers have always known that state judges might have to do so. Title 3, Sec. 5, of the U.S. Code, for example, contemplates that disputes arising from state elector-election contests may be decided by a state's judiciary, provided that the law under which that contest is decided was in place before Election Day. As it happens, Section 102.168 of the Florida Statutes -- in place before Nov. 7 -- allows for Florida elections, other than those for the state's house and senate, to be contested in Florida courts.

The same Florida election statute authorizes a judge to "fashion such orders as he...deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under the circumstances." In other words, critics of the Florida Supreme Court's broad recount are giving no weight to the fact that Florida election law ex-pressly allows the Florida judiciary to do all sorts of things in handling election disputes. Anyone looking for a source of the Florida Supremes' authority to order a statewide manual recount of "undervotes" need look no further.

One of the rules that arguably governs how Florida courts must deal with contradictory directives of the Florida legislature is that a court must interpret the state election code whenever possible in ways that don't lead to absurd or meaningless results. For example, the courts should reject rigid, formalistic reading of ambiguous or contradictory provisions if such a reading doesn't serve the legislative purpose of a statute, or if it actively undercuts it. It's this sort of reasoning that led the Florida Supremes to conclude that the resolution of a contest requires only the statewide manual counting of contested "undervotes" rather than of all the votes (as the Bush team argued). What's the point of wasting time with uncontested ballots when the dispute is over a much smaller number of contested ones?

Maybe you don't buy that conclusion, but a conclusion that favors one political candidate over another is not in itself proof of partisanship. When you read the Florida Supreme Court's majority opinion, you see an immense effort to adhere to what the court believes the Florida legislature has defined its role in election-law questions to be. "This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in resolving elections disputes," the Florida majority writes. Both the majority decision and the dissenters' opinions in Gore v. Harris, even though they reach differing conclusions, are reasoning in ways consistent with standard jurisprudential principles. As important, they are laboring to adhere both to their own judiciary's general body of precedent and to the specific legal and factual constraints of the case before them. I would not have been greatly troubled if the Florida Supremes had gone 4-3 against a statewide, court-ordered manual recount. That's because a constitutional theorist perusing the majority's and the dissenters' opinions in Gore v. Harris, can see a principled jurisprudential path to either result.

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