Balkinization  

Saturday, December 01, 2007

Reflections on Bush v. Gore

Stephen Griffin

At this time of year my thoughts turn to Bush v. Gore. That’s because I have taught a Fourteenth Amendment class in the fall semester for about 12 years. In November 2000, happily teaching my students the nuances of the right of privacy, I was fielding an increasing number of questions about the election crisis. I hadn’t planned to teach voting rights that year, but I saw it would be helpful to devote some class time to the developing litigation. As I suspect many conlaw profs were doing that November, I explained to the class that given institutional and justiciability concerns, there was little likelihood the Supreme Court would intervene in the middle of one of the most political processes we have (and constitutionally unique to boot). I also said that according to my understanding of the available causes of action under the fourteenth amendment, candidate Bush could not raise a federal question concerning the Florida state litigation (I didn’t explore the possibilities under Article II). The causes of action I knew of were vote denial, vote dilution, and racial gerrymandering. I stated the origins of each cause of action, went over cases like Harper and Reynolds and showed why they didn’t apply to the Florida situation (another line of analysis under equal protection – suspect classifications and invidious discrimination – was not a serious contender).

How wrong I was! Each fall semester brings another occasion to reflect on my failure to understand constitutional law in the same way the justices do. I keep returning almost compulsively to the literature on Bush v. Gore to see where I went wrong. In addition to again sampling the law review literature, this year I carefully read through the account of the decision in The Law of Democracy, a casebook by Sam Issacharoff, Pam Karlan, and Richard Pildes. Did I make a mistake of law? Or did the Court?

The context in which I viewed the decision, even in 2000, was a bit different from some other legal scholars. Although I count myself a Democrat, I didn’t think Al Gore did a good job as a presidential candidate or would have made a good president. Then and now, Gore strikes me as someone who would make an excellent cabinet official, foundation president, or leader of a presidential commission. But not president. Of course, I recognize the argument, particularly in hindsight, compared to Bush? But it is at least worth noting that new president Gore, having won a close election, would have faced months and years of bitter warfare with a Republican Congress and House dominated by Tom DeLay. Republicans would have had every reason to think they would prevail in the battle for the presidency in 2004 as long as they denied Gore any significant accomplishments. They would have treated President Gore as if he was a lame duck from the start.

Further, having watched elections and recounts for a long time, I had no expectation that Gore’s litigation would lead to a Gore presidency. Any fair recount would uncover some new votes for Gore, but also some for Bush. That’s the way recounts tend to work. And the post-2000 election ballot studies generally bear that out, at least for the kind of recount the Florida courts ordered. If the Court had allowed the recount to proceed, Bush would still be president. But a more legitimate president, surely.

This is a long way of saying that I’m not a critic of Bush v. Gore because I think the election was stolen from Al Gore. I’m with the critics that assume Bush would have prevailed in the recount, but think the Supreme Court still made a set of serious legal mistakes. I say “legal” because I also don’t agree with scholars who believed the Court acted out of partisanship. Really, have we learned so little about judicial motivation? There were plenty of plausible motivations that had nothing to do with party or political views. More on that below.

After reading The Law of Democracy, it’s clear I made at least one mistake of law. I didn’t tell my students there might be a cause of action for fundamental unfairness in an election process under the due process clause. That was not a prominent rationale in the per curiam opinion, which featured reliance on equal protection. But it was a possible claim. So I count that as a minor error. To the extent the opinion relied on prior law, it appeared to be based on Harper, Reynolds and vote dilution. Enough commentary has shown the implausibility of this argument, so I don’t feel I missed something important in telling my students Bush didn’t have a cause of action.

Because I made no significant legal errors in my pre-decision analysis, it appears Bush v. Gore was not based on prior law. It must have created a new cause of action. At least in terms of the law of the fourteenth amendment, I have no objection. Anyone familiar with this law knows the Court has created new rights over the years and voting rights law itself is a good example. There was a potential serious problem of principle with the apparent very narrow scope of this right (the famous language in the opinion about circumstances applicable to just this case). Assuming the federal courts applied the new right in good faith, I didn’t see a problem (although I thought this was unlikely). Unfortunately, this hasn’t happened and according to Rick Hasen’s recent article “The Untimely Death of Bush v. Gore,” it looks like it never will. Some of the worst suspicions about the opinion have been confirmed by experience. Bush v. Gore has indeed turned out to be a ticket good for one train only. That’s a shame and runs contrary to how I learned constitutional law was supposed to work.

My main problem with the decision was elsewhere. The Court intervened – in a presidential election? This is a key procedure necessary to constitute a branch of government specified in the Constitution and manifestly political from beginning to end – political in all the senses that militate against judicial involvement. Where intervention is called for, the Constitution specifies Congress is the relevant branch to call on. My concerns thus track the critical arguments made on institutional and structural grounds by Rachel Barkow, Elizabeth Garrett, Howard Gillman, Richard Pildes, David Strauss and I’m sure others.

Perhaps the incredulity many scholars felt on these legal and structural grounds contributed to the sharp initial reaction against the opinion. I’ve often wondered if the intensity of the reaction was due in part to the sense of embarrassment scholars felt in front of their students as they first predicted the Court would take no interest in the case and then had to backtrack. Notice from later reporting on the case by journalists such as Jeff Toobin that we scholars apparently were not in the inner circle of knowledge concerning what the Court might do. Some lawyers, notably conservatives who had served as Supreme Court clerks, “knew” the Court would want the case. What accounts for the gap in perception? What did we miss?

Perhaps many constitutional scholars, including myself, were unwittingly in the grips of an outmoded ideology or set of expectations about how the Court should act. Were we under the undue influence of a lingering form of legal process theory? And if a version of this theory was so pervasive, how was it former students (not to mention the justices) were unaffected? I think Pildes was on the right track in setting the case in the context of the justices’ increasing skepticism in the 1990s toward the political process. And let’s not forget the increased emphasis on judicial supremacy in the same decade. From this perspective, Bush v. Gore was a descendant of the kind of hauteur featured in Planned Parenthood v. Casey and courtesy especially of Justices Kennedy and O’Connor. This speaks to the question of motivation. Prior to the 2000 election, the justices had been primed by an increasingly pervasive set of attitudes about politics. Political institutions were thought to be corrupt, self-serving and arenas of intense partisanship. Meanwhile the Court continued to stand as an impartial body capable of solving any political mess.

The justices found out that they could not avoid intense criticism after invading a political process whose legitimacy over time has not been guaranteed by the federal courts. I must have missed the moment in legal culture when we all became automatic skeptics of state judicial processes. In this respect Bush v. Gore was no one-off. Recall the Schiavo case? Pervasive skepticism toward state legal processes is a long road with no turning. Why not subject all state court judgments to federal review? Obviously that’s unworkable. Criticism of state procedures during these two episodes was opportunistic. Critics showed no real inclination to fix problems in state legal institutions, just to intervene if they did not produce the desired result.

A final point about legitimacy. Some critics of the decision predicted the Court would lose legitimacy, but various observers and defenders noticed no adverse results judged by polls. I predicted Democrats in Congress would find a way to retaliate against the Court, I was wrong. All sides were too quick. In the first place, the Court has many audiences, both mass and elite. To assess properly a loss of legitimacy, one would have to consult these multiple audiences and use evidence other than general polls. In addition, legitimacy tends to be analyzed in an all or nothing fashion. The argument made by Toobin and David Cole that Bush v. Gore caused a liberal shift represented by decisions like Grutter and Lawrence suggests a loss of legitimacy can result in a shift in perspective.

Comments:

Professor Griffin:

My main problem with the decision was elsewhere. The Court intervened – in a presidential election? This is a key procedure necessary to constitute a branch of government specified in the Constitution and manifestly political from beginning to end – political in all the senses that militate against judicial involvement. Where intervention is called for, the Constitution specifies Congress is the relevant branch to call on.

I am curious. Did you have the same objection to the Florida Supreme Court reversing the decisions of the political branches of Florida in favor of Mr. Gore?

The United States Supreme Court in Bush v. Gore did not interfere with the political process so much as they stopped four members of the Florida Supreme Court from doing so by stripping the GOP state elections officials of their statutory powers and granting the Dem county elections officials in four counties the power to use whatever criteria they pleased to come up with votes for Mr. Gore.
 

The Brat! First post as always! King of all he surveys!

How he bores me.

Back on-topic, a few notes:
- I was not shocked when the court took the case (and even less shocked by its outcome). No law professor I, I'd always held the Supes in much lower esteem than the history books and those bound up in the superstructure of The Law. I have a teensy bit of sympathy for your disabused innocence -- but not very much.
- in re 'predicted the Court would lose legitimacy,' do you know any intelligent observer who still analyzes the court under anything but ideological grounds? People used to. I knew them. FL2K put paid to that fantasy. They may still be legitimate, but the myth of The Law is a dead letter among most observers now. That's a real loss for you and yours, I posit.
- I was broadly fascinated by your post. As someone who too-often sees purely economic and ideological explanations, I am oft interested in those whose attitudes differ. Yours clearly does. That such still exists is always of interest.
 

As to the second comment, actually, polls suggest the people still hold the Court in high esteem. Many were satisfied with the ruling itself.

I note Congress itself could have STILLED investigated some of the more egregious issues such as the charges of disenfranchisement of black voters, but not ONE senator joined the twenty or so House members who wanted to do so. Helped that no black senator was there at the time.

It's useful to examine this case periodically, but it tends to lead to tedious dubious statements. Thus:

"If the Court had allowed the recount to proceed, Bush would still be president."

Oh? The media recount stories underlined that there were many possible standards that could have been used. Under some of them, it was quite possible Gore WOULD have been President. And, overall, it is most probable true more people in Fl. intended to vote for him. You know, FWIW.

We simply do not know. To say otherwise might be nice in a "see I'm against the ruling for other reasons" sort of way, but it's still false and enables a fiction. As to the problems Gore would have faced, Bush also faced a lot of problems, and would have been even weaker w/o 9/11.

And, of course, the illegitimate presidency had various problems overall. Anyway, I was surprised Gore lost (up to 9PM Election Day, it sounded like he won) and that the Supremes voted as it did. Not after they stopped the count. The die was case then.

But, I think it was credible that they would, surely that a few justices would dissent. And, I think partisan reasons factored in as well. OTOH, the author of a recent book on the Supremes noted O'Connor was disappointed with the Bush President. How awful!
 

btw when I said "investigate," I meant before they formally accepted the electoral votes. Problems were confirmed in other investigations, and reforms in part addressed some of the serious problems that affected the result.
 

On what basis do you claim that Bush would have prevailed in a recount?
 

joe said...

"If the Court had allowed the recount to proceed, Bush would still be president."

Oh? The media recount stories underlined that there were many possible standards that could have been used. Under some of them, it was quite possible Gore WOULD have been President. And, overall, it is most probable true more people in Fl. intended to vote for him. You know, FWIW.


If the Dem officials in Palm Beach, Broward and Miami/Dade counties had been able to apply any standards they pleased to the ballots as allowed by the ScoFla majority of four (two of whom were former Dem political activists), I am certain the election would have been stolen for Gore. When this farce was stopped, the Dems had already manufactured more votes for Gore than the press ever found in their recounts.

Folks, there is a large body of federal case law holding that differing standards for counting votes is a clear violation of the EPC. If ScoFla had ordered a recount of all ballots in the state under the statutory standards, the ruling might have survived the EPC challenge. However, the Dems cherry picked four Dem counties for the recount and literally threw out any standards. No way that kind of blatant vote rigging survives an EPC challenge.
 

From the decision: "In addition, the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed."

What exactly do you do when a state Supreme Court orders people to do something that simply cannot be done? The punch card was invented for the census of 1890, and for the next century there were sorters that could separate out cards based on how they were punched, but not for voting punch cards. Voting tabulation machines have one stack of cards that go in and one stack of cards that go out. They do not separate cards into piles. Neither do Optical Character Readers.

Florida law prohibited the use of uncertified hardware or software in vote tabulation, yet the Florida Supreme Court had ordered 64 counties to separate out the undercount ballots and review them manually to see if it was possible to determine the clear intent of the voters. The problem with this order is that there was no certified method of reliably separating the undervote ballots, and no way to create such a process in the four days provided in the order. Programmers in Miami had developed a "hack" that might separate out undervote punch cards (by triggering the paper jam logic in the tabulating device) but certification requires some testing to make sure the software actually works and no such testing had been done. Besides, there were two separate punch card tabulation systems and all the other OCR systems.

[Subsequent testing of the Miami hack on punch card ballots in the other Florida counties that used the same equipment suggests that it was pretty good but not entirely accurate. Presumably the process could have been refined if you had a couple of weeks to work out the bugs. There was no hack for OCR tabulating machines, but again it might have been possible to write one and test it if you had weeks or months to do the job. The court gave them 4 days.]

The problem with the court's order is most clearly demonstrated by the two oddball counties that received orders from Judge Lewis' fax machine. One county used old fashioned "pull the lever" machines and if nobody pulled a lever there was no way to go back and recount the machines. However, the worst nonsense was in the one county that used plain paper ballots marked with an "X". They received an order from Judge Lewis to go back and separate out all the undervotes (presumably by manually determining which ballots had not been marked), and then go through them manually to determine if any of the unmarked ballots were marked. The country judge on the committee who received this order categorically refused to do any such nonsensical thing even if it would put him in contempt.

At what point does a decision by the Florida Supreme Court become such obviously irrational nonsense that the US Supreme Court has to respond? If they had ordered the election to be determined through Trial by Combat, and asserted that this was Florida Law as they decided to interpret it, would anyone fault a decision stopping such nonsense because they found the "equal protection" or "due process" argument to be a bit thin?

This is the difference between a law professor's point of view (where you look first for a real constitutional issue) and an election worker's point of view (where you know the decision is obvious nonsense and, given that as a starting point, you look for some even plausible constitutional basis to stop the train wreck).

"Why, sometimes I've believed as many as six impossible things before breakfast." It is easy to imagine or believe. It is harder to actually do 64 impossible things in four days.
 

At what point does a decision by the Florida Supreme Court become such obviously irrational nonsense that the US Supreme Court has to respond?

Uh, when it becomes an actual due process or equal protection violation under, you know, actual law. Not ad hoc law, on sale today only. Not "law" thinly disguised as silly factual claims about technical difficulties. And most assuredly, not "law" based on partisanship and intellectual hubris.
 

IMO, this case wasn't taken on an equal protection basis, it was taken on a "The judiciary should clean up it's own messes!" basis. Wrong, of course, as the Constitution dictated that this mess be dealt with by the state and federal legislatures, but understandable.

Wcw, I'm not impressed with your attack on Bart; He's nailed the problem, the state judiciary in Florida started rewriting election laws after the the voting was done, in a fairly transparent effort to give Gore as many additional rolls of the dice as he needed to win.

Democrats' problems with the legitimacy of the 2000 election outcome would have been nothing next to the way Republicans would have responded to Gore 'winning' by virtue of that sort of "keep recounting until it comes out right" nonsense.

But that doesn't mean the Court was right. Not every problem is the Court's to solve, they have to let the other branches handle the problems that are their's to solve. Even if it does involve a few impeachments, which is the way it looked to be heading down in Florida.
 

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Joe:

You may want to read the dissent to the final 4-3 decision of ScoFla written by my old boss, Chief Justice Charlie Wells for a great critique of the constitutional crisis which his colleagues dumped on the US Supreme Court.

The Supreme Court was actually very restrained in dealing with ScoFla. The Supremes first reversal was an attempt to allow ScoFlaw a graceful way out. However, they did not take it and the Supremes were forced to slap them down in the second decision.
 

Joe -

I'll go check the data. I apologize for arguing from anecdote.

The Brat -

Every time I read something you've typed, I feel knowledge leak out of my brain. Please, for the love of god and all that is holy, just shut up.
 

This is a thoughtful and balanced post, and I think Professor Griffin is quite right to focus on the structural questions, ie, what role should different levels of government and different branches have played in resolving the 2000 presidential election.

To clarify the issues, I propose the following hypothetical- suppose the votes in Florida had split exactly down the middle, with a single ballot that was contested. Suppose further that the interpretation of how this ballot was to be counted turned on an open question of Florida law, for which more or less equally plausible arguments could be made on either side. Finally, suppose that while the Florida Secretary of State had the initial responsibility of ruling on the disputed ballot, it was unclear whether the Florida courts were authorized (under Florida law) to review this decision and, if so, what degree of deference, if any, they were required to give to the Secretary’s determination.

The questions here, both with respect to the substantive question of how the ballot is to be counted and with regard to who decides under Florida law, are ultimately ones of what “manner” the Florida legislature directed its electors be appointed (see US Const., art II, sect. 1, cl. 2). The assumption of Bush v. Gore critics is that these are questions of Florida law to be resolved by the Florida courts. Yet this seems less than obvious from either constitutional text or structure. After all, the Constitution provides that it is the Florida legislature that is to determine the manner in which the electors are appointed. It says nothing about the role that the Florida judiciary is to play. It would seem that to the extent that those courts have a role, it is only because the Florida legislature has so specified (which, in our hypothetical, is one of the questions at issue).

It is true, of course, that we tend to accept that it is the province of the judiciary to say what the law is, even when this results in the judiciary augmenting its own powers vis a vis the other branches. But this concept, whatever its validity, originates with the federal judiciary. It seems odd and self-contradictory to say, on the one hand, that it is up to the Florida courts to determine the propriety of their own role in a federal election and, on the other hand, that the federal courts have no role to play in reviewing that decision.

Even with regard to the underlying substantive issue (how is the disputed ballot to be counted), it unclear why the Florida courts should be the final authority. If the disputed ballot were relevant to a congressional, rather than a presidential, election, the state courts (or other state authorities) would not have the final word. They could consider issues relating to the ballot (at least in the absence of preemptive action taken by the congressional committee of jurisdiction), but any decision of fact or law that they might make could be ignored by the House of Congress in question, which serves as the sole judge of the election of its members.

Professor Griffin suggests that the Constitution similarly identifies Congress as the federal entity that should intervene with regard to disputes over the appointment of presidential electors. However, there are a few problems with this suggestion. First, the Constitution does not say that Congress is to judge the appointment of electors. Second, the procedure for opening and counting the votes of electors does not lend itself to any serious congressional inquiry with regard to disputed electoral votes. Third, while the congressional authority over the counting of electoral votes may allow Congress to disregard the Florida votes if it concludes that the Florida courts erred in their interpretation of the disputed ballot, it would not allow Congress to award those votes to a different candidate. Thus, both as a practical and legal matter, Professor Griffin’s position would seem to give the Florida courts much more authority over the outcome of a presidential election than they would have with regard to the outcome of a Florida congressional election.

In the hypothetical I pose, there is no “right” answer as to how the disputed ballot should be counted. But given the enormous national consequences of the decision, it seems strange that a single state court would have the final word on the matter. Certainly it is inapposite to analogize the situation to one in which a state court is ruling on a purely internal state matter (eg, the Schiavo case). After all, if the Framers did not trust state courts to decide the outcome of congressional elections (or for that matter, cases involving citizens of other states), why would they have trusted them to decide a presidential election?
 

mls poses a hypothetical that is still, I believe, blinded by a Law School bias. The courts have a specific role in reviewing legislative and executive actions. An election, however, is the one official action of the "fourth branch" of government, the "We the People" branch. It's not just that we cast votes, but also that the election is largely staffed by citizen volunteers who become government officials for the one day set aside by law to carry out the election.

You should not just assume that principles of judicial review of laws or executive action automatically apply to an election. If the court says that a law is unconstitutional, the legislature can redraft it. If the court changes the rules after the ballots are cast, the voters can't go back and fix it.

There is a state constitution. The legislature follows it and writes detailed election laws specifying exactly how the election is run and the ballots are counted. The Secretary of State and the Country Boards of Election then convert these laws into detailed manuals for all the workers at the polls and the tabulating locations.

Following these detailed instructions, the election was held, the ballots were counted, and then they were recounted. There is provision for a Protest if the equipment malfunctioned, which the Democrats abused to change the way the ballots were counted in four counties. There is also provision for judicial review if the rules are not followed or if the election was tainted by fraud or corruption.

No such claim was made in Gore v Harris. Instead, it was suggested that there were better ways to count the ballots than the method agreed to in advance by all parties and represented in the handbooks given to and used by election workers.

Nobody doubts that the court can review these instructions and, if they are found to be wanting, they can be changed before the next election. The question here is whether the courts have the authority to interpret vague phrases in the constitution or laws like "clear intent of the voter" and based on that, throw out the policies and procedures and manuals agreed to by everyone before the election and replace them with some ad hoc procedure made up by judges on the bench weeks after the election results were tabulated.

I would argue that judicial review of the previous election must be limited to the manuals, policies, and procedures that interpreted the law and were agreed to before the election. In this case, because the election is an act of the people and can only occur on the one day, if the courts have second thoughts about the laws and constitution then they should limit their remedy to making changes in the manuals and procedures for the next election, not trying to change the outcome of the previous election.

If you are a moderator who manages the polls in Connecticut, you have to get up at 3:00 AM on election day now to be there when they deliver the equipment, and you are down at the Hall of Records at 10:30 at night on line waiting to turn in the forms. You don't do this because you get paid what turns out to be less than minimum wage. You do it because you are committed to the principle of a government of the people, by the people, and for the people. If the Florida Supreme court had its way, this would be a government of the lawyers, by the lawyers, and for the lawyers and the people be damned. That becomes Tyranny, and the Declaration of Independence tells us what to do next.
 

Howard- since you accuse me of having a law school bias, I feel obligated to respond, although I am not entirely sure what you mean by this.

I think fair-minded people will acknowledge that the Florida Supreme Court was sailing in uncharted waters during the 2000 election, ruling on questions for which there was little or no precedent or specific statutory guidance (of course, it is hardly unheard of for courts to be in that position). You would argue that this was the result of the court ignoring legal/traditional limits on its role in election contests, while others would say it was the result of the combination of a highly unusual situation and an unclear/internally inconsistent legal framework.

My sense is that it was a little of each, but one point of my hypothetical was to get away from that argument. If the question is which actor (state election officials, state courts, state legislature, federal courts, federal legislature) should make which decisions, the answer can’t depend on whether you think it was acting in good faith in a particular set of circumstances. The fact that most Bush partisans think that the Florida Supreme Court was acting in bad faith and most Gore partisans think that the US Supreme Court was acting in bad faith also demonstrates that this is not a particularly fruitful approach.

If your point is that it is a bad idea to overlawyer elections, I don’t disagree. In the absence of fraud or clear error, it is better to live with the count as it comes in, rather than try to change the results with a ballot by ballot litigation. But the fact is that there are procedures for recounts, protests, etc., which vary state by state, and presumably there will be circumstances in which it is necessary and appropriate to use them, even in a presidential election. The question that I was trying to address is which institution is most appropriate to make the final decision when these procedures are invoked in a presidential election.

I agree with the distinction that you draw between pre-election and post-election judicial review. Prior to the election, the effect of a judicial decision on the ultimate outcome of the election is unknowable; afterwards, it is not. This distinction is implicitly recognized in the role played by the House and Senate in judging congressional elections. Prior to the election, the House and Senate play no role in determining what procedures the states use in conducting the election; once the election occurs, they become the judges of the election and returns of their respective members and any decisions made by state courts or other authorities are advisory only. Because the Constitution does not provide for any specific institution to serve as the judge of the appointment of presidential electors, however, it is necessary to use structural and textual analysis to identify the institution most suited for that role.

If this analysis reflects law school bias on my part, so be it. I must have gotten something out of those three years.
 

wcw's comment is interesting to me. On left/liberal websites, one so often finds people attempting to shout down and drive away conservative commentators. One doesn't find that on conservative websites. For instance, to the best of my recollection, none of the other commentators at the Volokh Conspiracy ever tells Mark Field to shut up and go away.

Why are liberals and conservatives different in this way?
 

Certainly it is inapposite to analogize the situation to one in which a state court is ruling on a purely internal state matter (eg, the Schiavo case). After all, if the Framers did not trust state courts to decide the outcome of congressional elections (or for that matter, cases involving citizens of other states), why would they have trusted them to decide a presidential election?

This seems inconsistent with your previous (correct) point that the FL legislature establishes the rules for presidential elections. If the legislature did give the court the role of deciding disputed ballots, then there's no inconsistency with the Constitution, nor any peculiarity in having the courts of that state decide the issue.

That sequence is, of course, exactly what I believe was the case in Bush v. Gore.

I think fair-minded people will acknowledge that the Florida Supreme Court was sailing in uncharted waters during the 2000 election, ruling on questions for which there was little or no precedent or specific statutory guidance (of course, it is hardly unheard of for courts to be in that position).

I guess I must not be fair-minded, then. I thought the FL Supreme Court based its decision on ample, compelling precedent.

I agree with the distinction that you draw between pre-election and post-election judicial review. Prior to the election, the effect of a judicial decision on the ultimate outcome of the election is unknowable; afterwards, it is not.

In the specific case of FL 2000, the ultimate outcome of the election WAS unknowable to the FL Supreme Court. In fact, and despite all the clamor, Bush won the election if Gore's limited recount request had proceeded. No one could have known that in advance, whereas the result would be knowable in advance in your single ballot hypothetical.

It seems to me, for some of the reasons you've given and for others as well, that Bush v. Gore provides a clear example why textual analysis can't always supply the answer to Constitutional questions. In that sense, it resembles other instances of textual gaps such as the President's removal power.

What the Court does in those cases (at least in those cases where it doesn't punt), is resort to principles such as the basic design of the Constitution and the underlying theory. In an election, the basic principle, as you noted, is that the decision should be made by the voters. That suggests two conclusions:

1. Every vote possible should be counted.

2. The intent of the voter should be determined as accurately as possible.

IMO, that's precisely what the FL Court did (or was in the process of doing), and precisely what Bush v. Gore prevented. The fact that the actual opinion by the SCOTUS was absurd on its face simply reinforced the illegitimacy of its intervention.
 

Why are liberals and conservatives different in this way?

# posted by sean : 11:52 AM


Baghdad Bart is censoring posts on his blog. So much for that "difference"...
 

The most indisputable indication of the illegitimacy of the Dubya v. Gore decision (and thus of the extrajudicial [i.e. political] ends being promoted) is the fact that the Supreme Court mandated a "remedy" that in fact caused they very thing they claimed to be so concerned about. By stopping the counting, they made sure that different counties would be counted by substantially different methods, and that voters would not have the same "right" to have their votes count.

That, and the fact that the anomymous and cowardly per curiam lied about what the dissenters said ("Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy"), gives lie to the fact that there was ever any intention of establishing "new" law, rather than just achieving the "results" they wanted. Even Judge Posner, in supporting the decision, says that it can't be supported by law, but that it was a necessary expediency to avoid upheaval (hardly a ringing endorcement for any principles involved).

That Rehnquist and company would find "equal protection" violations not only absent evidence (and not just statistical evidence, of which he disapproves) of actual discrimination and/or invidious intent, but also for a plaintiff that had no standing to sue on such a basis (Dubya was not a Florida voter), just frosts the cake.

Cheers,
 

"Bart" DePalma hallucinates again:

I am curious. Did you have the same objection to the Florida Supreme Court reversing the decisions of the political branches of Florida in favor of Mr. Gore?

They did no such thing. The Republican-controlled legislature was poised to take any ex post facto action necessary should Gore have won, but they never did.

The United States Supreme Court in Bush v. Gore did not interfere with the political process so much as they stopped four members of the Florida Supreme Court from doing so by stripping the GOP state elections officials of their statutory powers and granting the Dem county elections officials in four counties the power to use whatever criteria they pleased to come up with votes for Mr. Gore.

Nonsense and balderdash. The courts did what they were supposed to do, and that was to rule on election law duly passed and in force. BTW, Dubya v. Gore had nothing to do with the four counties protested, and had to do with the contest phase. The contest is of the entire election, and thus encompasses all counties.

Cheers,
 

"Bart" DePalma:

If the Dem officials in Palm Beach, Broward and Miami/Dade counties had been able to apply any standards they pleased to the ballots as allowed by the ScoFla majority of four (two of whom were former Dem political activists), I am certain the election would have been stolen for Gore.

And if pigs had wings, we'd carry cast-iron umbrellas.

The standard (arguably vague) was "intent of the voter". But that turns out to be the standard in many if not most states, and Dubya's Texas has a similar standard, even allowing the infamous "dimpled chads".

Pretending it was "standardless" is just RW WurlitzerSpeak. We may disagree about the standards (2 corner, 3 corner, dimple, etc.), but the boards tried to be uniform, and the recounts (as provided for in election law) were done with representatives of both sides (not to mention the "Rent-A-Thug" 'protesters' that were actually GOP Congressional staffers the GOP flew in from around the country, not locals with any stake in the matter).

The major problem was in the "overvotes", FWIW. It turns out that in fact Gore got the greatest benefit from undervotes using the most restrictive standards, but it was overvote that pushed the election over to Gore. And many overvotes are legal; in fact, in one GOP-leaning Florida county, a "stealth" manual recount netted Dubya over a hundred votes, including overvotes recounted manually.

As for the Florida Supreme Court, IIRC, five of the seven justices were appointed by Republicans. I think they just took the law more seriously than politics, unlike some here.

Cheers,
 

"Bart" DePalma:

Folks, there is a large body of federal case law holding that differing standards for counting votes is a clear violation of the EPC.

Where?!?!?

Cheers,
 

"Bart" DePalma is confoozed:

f ScoFla had ordered a recount of all ballots in the state under the statutory standards, the ruling might have survived the EPC challenge.

They did.

However, the Dems cherry picked four Dem counties for the recount and literally threw out any standards.

The four-county protest ended with the PBC v. Harris decision. In fact, in the end, this decision stood (and any manual counts completed for these counties ended up in the "certified" totals). The U.S. Supreme Court didn't overturn this.

The one the U.S. Supreme Court took up was about the statewide recount under a contest of the election, which would have counted all counties. This was impermissible, and the U.S. Supreme Court first enjoined (to prevent, as Scalia said, "irreparable harm to petitioner [George W. Bush] and to the country, by casting a cloud upon what he claims to be the legitimacy of his election", as if the court should care WTF Dubya's feelings might be above actually counting voters' votes), and then permanently halted, the state-wide counts.

You're entitled to your opinions, "Bart", however misguided and untethered from fact, but you're not entitled to make facts up.

Cheers,
 

brett:

IMO, this case wasn't taken on an equal protection basis, it was taken on a "The judiciary should clean up it's own messes!" basis.

Nonsense. The supreme authority in Florida election law is the Florida Supreme Court; the U.S. Supreme Court, absent a valid federal question, had no role to play.

Cheers,
 

mls:

I think fair-minded people will acknowledge that the Florida Supreme Court was sailing in uncharted waters during the 2000 election, ruling on questions for which there was little or no precedent or specific statutory guidance....

Not entirely true. For instance, WRT the Republican claim that only ballots that could be counted by machine were valid (and contrary to the demands that the machine just be rerun to check the ballots in a "recount"), there was one prior case in which the ballots needed to be filled in in #2 pencil to be read (presumably an resistive as opposed to electro-optical reader), but the ballots had been filled in with pen and were unreadable. In this case, the court decided that the "intent of the voter" should prevail despite the failure to follow instructions, and the ballots were remarked with the pencils and then counted.

Cheers,
 

that professor griffin could fail to see that this decision was driven purely by partisan politics and has no basis in the law is beyond me.

how about the part of the decision, i forget what and where, that basically limited the precedential value of the decision to only the set of facts before the court.

i also disagree that the court's prestige has not taken a hit.

on this point, i tend to agree with Dershowitz that the decision was nakedly political and a disgrace. see Supreme Injustice for just how intellectually dishonest that opinion was.

this whole post is astonishingly disingenuous in it's analysis of the motivations of the decision, Gore's chances on recount, the legitimacy of the reasoning and it's ad hominen attacks on Gore.

Repost this at LGF where it belongs.
 

Arne, apparently you missed my pointing out that "This is the judiciary's mess to fix!" wasn't a valid basis for taking the case. The Supreme court should have let the state legislature slap down this usurpation, (As they were preparing to do.) it wasn't their job to deal with it.
 

brett:

Arne, apparently you missed my pointing out that "This is the judiciary's mess to fix!" wasn't a valid basis for taking the case. The Supreme court should have let the state legislature slap down this usurpation, (As they were preparing to do.) it wasn't their job to deal with it.

Then I misunderstood you. My apologies.

But I left uncommented-on (in another post) the notion that the state legislature could have stepped in after the fact and decided on its own slate of electors. Which is what it was proposing to do (and had taken steps to do in one house) had Gore succeeded in his court case.

There's something fundamentally wrong with the state legislature setting out the procedures to select the electors on election day, and then subsequently setting up new "procedures" ex post facto because it didn't like the results of what it had already done.

Its work was complete when it wrote the laws. The laws were followed, and the electors chosen in the manner specified. Had they wanted to specify selection by lottery (or any other procedure "in such manner as the Legislature thereof may direct") before the date of selection, that would have posed no constitutional infirmity. But to do so afterwards violates the constitutional requirement that the date of selection "shall be the same throughout the United States". If they make new rules afterwards, then the "time of choosing the electors" is not the same (being instead the time this new law passes or even later).

Not to mention, such a process would also violate the 3 USC 5 'safe haven' provision which so concerned some of the RW foamers....

Bottom line: I think there would have been quite the Constitutional fight had the Republican legislature demanded a "do-over" or simply ignored its own procedures previously enacted into law to chose the candidate it wanted.

As noted by some, the place to fight over recognition of electoral slates (however decided or allegedly "selected"), though, is in Congress.... The result may have been partisan (in fact, that's a given, considering today's Republican party), but at least it would have been overt and not have any pretension of actually following any recognised state electoral laws or notions of fair play ... and it would have respected constitutional limits.

I still wonder at those that think that the state legislature's notions of just rewriting the results if they didn't like them would have been an acceptable outcome. Sounds pretty unprincipled to me. But that's your Republican party....

Cheers,
 

Deeply off-topic, for which my apologiae, but: Sean, I generally restrain myself from telling The Brat to shut it. This time around, I didn't. That's my weakness, for which I apologize to the other commenters, but emphatically not to The Brat or to you.

The Brat deserves the opprobrium because of its tireless and depressingly successful efforts to hijack threads here. If The Brat's trolling were left-wing, I'd have reacted exactly the same way. This is not a partisan issue, which anyone who ever reads comments threads here knows by now. The Brat is a troll.

For a version from the well-meaning center ('left/liberal' these days means the same as 'Eisenhower Republican'), check out "Anne" at Brad Delong's blog. She's incredibly annoying, tireless, "liberal" -- and I have told her off in no uncertain terms several times. As with The Brat, I do not delude myself into thinking I thus can stop the madness. Trolls can't be stopped; they can only be banned.

As for your own charming ad hominem, it's offensive enough that you jump to thirty kinds of conlcusions, but it's especially funny to watch you miss your mark.

Get back to us when you're as skilled a troll as The Brat, willya?
 

"because it didn't like the results of what it had already done."

I think you'd have a better argument there, if the state legislature had simply pulled a list of electors out of it's ass after the election. That would clearly violate the requirement that all electors be chosen on the day Congress dictates. However, since they were merely ordering that the slate chosen according to the laws they enacted, rather than the courts' post election rewrite of them, be sent to Washington, your argument is kind of weak.

In any event,

1. It was up to the House to decide which slate to accept, not the courts, either state or federal.

2. The state legislature clearly had that "slapping down" authority, in that they could have started impeachment proceedings against the state supreme court justices.

And, IMO, should have.
 

Yo, Brat-buddy: http://balkin.blogspot.com/2007/12/easily-administrable-human-rights.html

That's a real troll at work.

How jealous are you?
 

Mark- I understand that you believe that everything the Florida Supreme Court did in the 2000 election was clearly legitimate and correct under Florida law. Frankly, this does not shock me. The whole point of my hypothetical was to posit a case where everyone could agree that the substantive legal question was a close one, and to focus on which institution would be most appropriate to resolve it.

You suggest that if the Florida legislature had given the Florida courts the authority to resolve the question, the Florida courts would be the appropriate venue. Well, there is nothing in the Constitution that prevents the Florida legislature from providing that the state’s electors will be directly appointed by the courts (or by a committee of the legislature, for that matter) so you are correct to that extent. But the “chusing” must take place at the time specified by Congress, which in this case was election day. After that, it is not so clear that the states have carte blanche to determine how their choices are to be ascertained. Just as it would be problematic for the Florida legislature to decide after the election that it wished to appoint the electors itself, so too would it be for any other state entity to assume such a power, even if it has a claim that Florida law authorizes it to do so.

Let’s return to my hypothetical and assume that the Secretary of State awards the disputed ballot to Bush, and the Florida Supreme Court reverses the decision, awarding it to Gore (keep in mind that, by hypothesis, both decisions are reasonable under Florida law). Bush then appeals to SCOTUS.

SCOTUS has three options. The first, which I take it would be favored by Professor Griffin, is to treat this as a pure question of state law, and to refuse to hear the case at all. This would leave the appointment of electors as an issue to be fought out purely at the state level. It might result in the Florida legislature attempting to override the Florida Supreme Court’s decision, or impeaching some of the justices. The Governor might also attempt to intervene (as I vaguely recall, he had some role in certifying the electors, though I may be mistaken in that). Ultimately, there might or might not be two competing slates of electors sent to Congress.

Due to the overriding federal interest in this matter, and the fact that the question (ie, which electors were appointed in the manner directed by the Florida legislature) is a federal one, this seems to me to be an implausible result. It potentially leaves the selection of the next President entirely in the hands of a single state, disregarding the equally strong interests of the other 49.

The second option would be for SCOTUS to recognize that the issue is ultimately a federal one, but to find that the resolution of the issue is for Congress, not the courts. This seems to me a more plausible approach, although for the reasons I indicated in prior comments, I am not persuaded that the Constitution does assign the issue (solely) to Congress. At least, though, this option ensures that there is a final review at the federal level. However, under this option SCOTUS would have to take steps to ensure that Congress could make an independent final judgment, which would mean that it would have to ensure that both slates of electors were sent to Congress.

The third option would be for SCOTUS to find that there is a justiciable federal question, and to decide the case on the merits. In the hypothetical this would mean, I think, identifying the scope of authority given under Florida law to the Secretary of State and the Florida courts respectively, and deciding which institution the Florida legislature had directed to make the decision. So long as the decision was a reasonable one (which, hypothetically, both were), SCOTUS would defer to the authorized decisionmaker.

While there are undoubtedly problems with this third option, namely that it puts SCOTUS in the difficult position of deciding the presidential election, it seems to me that it makes more sense than any of the other options. At the very least, it is not surprising or unreasonable that SCOTUS would have a role to play in deciding the legal issues presented here.
 

Brett:

I think you'd have a better argument there, if the state legislature had simply pulled a list of electors out of it's ass after the election. That would clearly violate the requirement that all electors be chosen on the day Congress dictates. However, since they were merely ordering that the slate chosen according to the laws they enacted, rather than the courts' post election rewrite of them, be sent to Washington, your argument is kind of weak.

Not only is it the court's traditional job to resolve issues of the construction of law as applied to the specifics of cases,it is also unarguable that the legislature specifically said that the courts were the proper vehicle to resolve election contests. The legislature may say in hindsight, "Hey, that's not what we meant!" (instead of the more honest "We really don't like the way this one is going..."), but that hardly means that their ex post facto sentiments -- so conveniently discovered -- change the language of the actual laws. I'd note that the legislature hadn't rewritten the laws in the face of prior contests, nor did they up and complain previously when the courts went so far as to order that ballots be remarked so as to be readable, so as to fulfill the maxim that "clear intent" of the voter should hold sway.

I'd also note that in the latest rewrite of the Sunshine laws in the aftermath of the election, the legislature reaffirmed various holdings of the courts in this election battle.

It was only on the matter of the electoral slate going to Dubya that the Republican legislature was adamant.

There is an obvious element of unfairness in deciding after the votes were cast and when it could be seen specifically who would benefit from various interpretations (no matter how strained) of the election laws, which of those interpretations ought to hold sway, when such interpretations were runnign againstthe flow of previous court decisions. The majority opinion in the Florida Supreme Court was based on good and stable law.

Not to mention, the U.S. Supreme Court didn't overturn this decision; they just manufactured an "equal protection" violation where they would never have seen such before (particularly, for the likes of Rehnquist, if some black had argued "equal protection violation" sans concrete [and not statistical] evidence of actual invidious intent), and then promptly ruled that the "remedy" must cause the very "equal rights" violation they found so 'troublesome'. You can't argue that. It's plain on the face of the decision. It makes no sense other than as a deux ex machina to make sure that Dubya got elected.

Cheers,
 

I understand that you believe that everything the Florida Supreme Court did in the 2000 election was clearly legitimate and correct under Florida law.

This overstates my view a bit. It's been a while since I read the FL SC opinion. I don't claim to find every detail exactly right, partly because I don't even remember, but I do believe they got it generally right.

But the “chusing” must take place at the time specified by Congress, which in this case was election day.

I don't understand your point here. The "choosing" was clearly done on election day. The fact that the verification of the choice took some time afterwards is no breach of the requirement. That happens all the time; I dare say the full results are NEVER known, in any state, on the day itself. Absentee ballots, military ballots, etc. all get counted later.

As for your 3 options, it seems to me that the clearly correct option is that the SCOTUS should have denied review. This issue was, in the first instance, an issue of state law. It's true that the rest of us had a profound interest in the outcome, but (a) that's an ex post interest which developed only because we already knew the results elsewhere, and (b) that's also inherent in the (IMO fundamentally flawed) Electoral College system.

I should add that Congress also may have some say in the outcome because of its role in certifying the results (see 1876).

Your basic argument seems to me to be that because this issue involves a federal election, the SCOTUS was right to intervene. Nasty judicial activist though I am, I don't believe every federal issue is necessarily a judicial one. That professedly conservative, states rights justices could rule otherwise merely adds to the hypocrisy I perceive in the opinion.
 

Mark- agreed that verification of election results is an inherent and necessary part of the process. My point is that the legislature cannot, in the guise of verification, give some entity the de facto authority to do the choosing after the election (eg, if the legislature were to give an election official unlimited discretion as to which ballots to count). Clearly if an entity assumes this power when it was not given by the legislature, this does not make it any better.

With regard to your view that SCOTUS should deny review and leave it up to Congress to decide whether to count the votes, I have indicated that this is a plausible position so long as Congress’s ability to make an independent final judgment is protected (as it would be in the case of congressional elections). I have also explained why this position is at best debatable and, IMO, not in fact the position best supported by constitutional text and structure. You are free to disagree, but your reference to the concept of state’s rights is inapposite. The question is which federal branch, legislative or judicial, should review the state’s actions in this situation, not whether there should be review at all.

Of course, you might really believe that a single state should have the unreviewable discretion to select its electors in any way it wishes, even if this results in its choosing the electors after election day. This would be a peculiar concept of state’s rights, however, since it would protect the rights of one state at the expense of the other 49. Maybe you in fact believe in this concept of state’s rights (if so, I guess you sneer at those namby-pamby state’s rights people who just support secession). But you should not criticize the Bush v. Gore majority as hypocritical because they did not endorse it.
 

MLS:

Mark- agreed that verification of election results is an inherent and necessary part of the process. My point is that the legislature cannot, in the guise of verification, give some entity the de facto authority to do the choosing after the election (eg, if the legislature were to give an election official unlimited discretion as to which ballots to count). Clearly if an entity assumes this power when it was not given by the legislature, this does not make it any better.

IIRC, some states provide for coin flip (or was it a poker game in Nevada?) to determine tied elections. Now those would be determinations made after the election, and I doubt anyone would gainsay them, should the elction actually be tied. As 3 USC § 5 seems to indicate (in response to just such type issues over a century ago), as long as the laws are in place in election day, the mechanics of following these laws and making the determination can take some time, providing the substantive event (the voting of ballots) occurs on election day.

What the delineation is between the "laws" and the procedures pursuant to those laws is, however, would seem to be matter of interpretation of state law; note that as long as the election is done on the prescribed day, there ought not be any Constitutional infirmity in subsequent legal proceedings to clarify disputes as to state law or the actual result (as recognised by 3 USC § 5) as this provision doesn't do more that provide a "safe harbour" WRT U.S. Congressional actions and violation doesn't invalidate any electors.

Cheers,
 

"there ought not be any Constitutional infirmity in subsequent legal proceedings to clarify disputes as to state law or the actual result "

Assuming those subsequent legal proceedings really WERE just clarifying disputes, sure. But let's set aside any legal realist claims that a court of last resort is always right, by definition: The Florida Supreme court was doing considerable violence to Florida's election laws, as written. And in a situation where the federal constitution says the state legislature's will shall be done, not the state's will, the judiciary does in fact cause a constitutional infirmity if they dispense with the legislature's will, and substitute their own.

It's been a while, but IIRC, the first point where the state supreme court started disposing of existing election laws, was when they ordered Harris to accept late tallies the law clearly gave her discretion as to whether to accept. "May" was the word, not "shall", and that means discretion, which the Court took away from her.

That was only the start, it got worse from there. When it came to Bush v Gore, and setting aside that the Court did not have proper jurisdiction, (Remember, we agree about that.) the Court may have disagreed among themselves as to remedy, they were in substantial agreement that the Florida supreme court was doing something wrong.
 

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