Election 2000

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

(Page 2 of 4)

The picture of the Florida justices' reasoning processes we get from both the majority and the dissents casts the U.S. Supreme Court's majority in Bush v. Gore in a highly unflattering light. Unlike the Florida justices in Gore v. Harris, the majority in Bush v. Gore seems to have acted as partisans, exceeding the well-understood limitations on federal judicial power. The U.S. Supreme Court majority showed only nominal reluctance to make new law (by finding that the 14th Amendment's Equal Protection clause applies to vote-counting standards) and to assert control over the outcome of a disputed election. Unlike the Florida courts, the federal courts have no express role in disputed elections, and in fact both the Constitution and federal law give Congress, not the federal courts, the fundamental authority to resolve disputes involving presidential elections. What's more, the U.S. Supreme Court stepped over the lines that supposedly constrain federal court authority in the service of plainly shallow and inconsistent reasoning.

The U.S. Supreme Court has no special grant of authority to deal with election issues -- not even those arising in federal elections -- absent some larger federal statutory or constitutional interest. At bottom, the U.S. Supreme Court is one of defined and limited power, as spelled out in Article III of the U.S. Constitution. You can tell how eager the majority was to involve itself in Bush v. Gore by how much effort the justices in the majority gave to finding a basis for their jurisdiction, and by how shallow and problematic the arguments for such jurisdiction turned out to be.

Ultimately, the attempt to find a basis in Title 3 of the U.S. Code, which sets up a statutory framework for Congress' handling and interpretation of the states' slates of electors, was a washout. Only three justices were willing to stomach the transmuting of these federal laws, which were designed to mandate and limit Congress' conduct, into a limitation on state courts. Still, it's disconcerting that these three justices, heretofore identified with both the states' rights theory of federalism and with a focus on the plain text of the statutes they must interpret, were willing to abandon those theories in service of a highly creative "interpretation" of a federal statute -- one that, had it gotten two more votes, would have amounted to a bald federal pre-emption of the states' authority to control their own process of selecting electors.

The equal protection theory that ultimately led the U.S. Supreme Court to effectively decide the election in Bush's favor is not in principle so jurisprudentially perverse as the Title 3 theory, and ultimately some elements of the equal protection theory won the support of seven of nine justices. Here the perversity isn't inherent in the theory itself but in what five justices were willing to do in the name of the 14th Amendment's Equal Protection clause.

The majority's equal protection argument begins with the well-established principle that the 14th Amendment's Equal Protection clause prohibits state governments from treating some citizens worse than others when that different treatment is based either on their identity and background or violates "fundamental fairness." Voting is a basic right, so the fact that some Florida counties use different standards than other Florida counties when participating in a statewide manual recount of "undervotes" at least raises the possibility that some citizens' rights under the Equal Protection clause have been violated. Similar arguments may be grounded in the Florida Supreme Court's focus on undervotes, which might be said to be unfair to those whose ballots were rejected as "overvotes" (with more than one presidential vote apparently marked on the ballot), or in the fact that all ballots, rather than just the undervotes, were recounted in some but not all counties.

Who can argue with the general principle that no person's vote should count more or less than any other's? But the devil's in the details, and both the factual situation in Florida and the remedy imposed by the U.S. Supreme Court raise doubts about how much the five justices who voted to stay and later to bar the manual recount really cared about the equal protection or "fundamental fairness" issues.

For one thing, it's unclear that the differences in ballot-counting standards among Florida counties add up to a constitutional violation of such magnitude that the U.S. Supreme Court needed to step in. Whatever rule might be used (counting dimpled chads, say, or refusing to count them), the rule itself won't inherently favor one candidate over another and thus won't favor one candidate's voters over the others'.

For another, different counties in Florida use different kinds of voting machines and ballot-counting machines, with the now well-documented result that some systems reject more legal ballots than others do. The Supreme Court's order blocking manual recounts ensured that votes in one county are more likely to count than votes in another county.

Compounding this latter problem is the fact that ethnic or racial minorities may be more concentrated in counties that use the less-reliable voting-machine technologies. Thus, blocking manual recounts may have had a disproportionate effect on certain voting minorities. This isn't the result a court is normally looking for when it invokes the Equal Protection clause and claims to be protecting fundamental rights.

As to the purported neglect of "overvotes," the dissenters rightly pointed out that no one had presented evidence of an overvote problem. In other words, the majority was so eager to find an equal protection violation that they assumed facts not in evidence.

The majority was aware of these details, which strongly suggests that these five justices' invocation of the Equal Protection clause was opportunistic and maybe even hypocritical. In effect, the Supreme Court was saying "We had to refuse to count your (possibly incorrectly rejected) votes in order to vindicate your right to have your votes counted fairly."

Which brings us to the question of what vital, constitutionally significant interests were being served by the U.S. Supreme Court's decision to block the Florida Supreme Court's statewide manual recount of undervotes, with the result that some votes would never be counted in time to affect this election? The best the justices in the majority can offer is this, in Scalia's concurrence to the initial stay of the recounts: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." Earth to Scalia: If improperly conducted recounts risk generating such a cloud, a court-mandated halt of the recounts is not exactly clear-skied if legitimacy is your concern.

Another notion the five justices advanced was that the ticking of the Electoral College deadline clocks meant that the Supreme Court needed to impose finality on the election dispute. But it's hard to see how this need for finality, even if true, required that the U.S. Supreme Court prevent the Florida Supreme Court from even trying to craft a remedy consistent with the finding of an equal protection violation. Suppose Florida's high court had been unable to resolve the issue by any deadline -- so what? As Justice Breyer pointed out in his dissent, "The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a road map of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S.C. 5 (providing that, where a 'State shall have provided, by laws enacted prior to [election day], for its final determination of any controversy or contest concerning the appointment of...electors...by judicial or other methods,' the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court."

If the blocking of the recount, which resulted in the effective erasure of many citizens' votes, was not enough to cast doubt on the Supreme Court majority's commitment to equal protection and fundamental fairness, the majority's attempt to limit the impact of its newly discovered equal protection issue to this particular case would be. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," writes the majority in its unsigned opinion. In other words, the majority seems to be saying, we believe Florida's election code issues add up to an equal protection problem only insofar as they raise the possibility that George Bush might not win Florida. But don't expect us to be bound by this decision in future cases.

We'll get the chance to see how well the majority's commitment to this equal protection issue holds up. Despite the justices' attempt to limit the effect of this new doctrine, it will be an invitation to future candidates to mount federal equal protection challenges to every state-based resolution of an election dispute. Finality, the thing the majority seemed to value more highly even than citizens' rights to have their votes counted, may be yet another casualty of Bush v. Gore, as state election-dispute cases increasingly lead to simultaneous or subsequent litigation in the federal courts.

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