The Vote: Bush, Gore, and the Supreme Court
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The Vote: Bush, Gore, and the Supreme Court
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Overview
The contributors to this volume were highly visible in the national media while the controversy raged, and here they present fully fleshed-out arguments for the positions they promoted on the airwaves. Readers will find in The Vote equally impassioned defenses for and indictments of the Court's actions, and they will come to understand the practical and theoretical implications of the Court's ruling in the realms of both law and politics. No doubt a spate of books will appear on the 2000 presidential election, but none will claim as distinguished a roster of contributors better qualified to place these recent events in their appropriate historical, legal, and political contexts.
Leading constitutional scholars render their verdicts on the 2000 presidential election controversy
Contributors:
Richard A. Epstein
Elizabeth Garrett
Samuel Issacharoff
Pamela S. Karlan
Michael W. McConnell
Frank I. Michelman
Richard H. Pildes
Richard A. Posner
David A. Strauss
Cass R. Sunstein
John Yoo
An earlier electronic edition of The Vote was available on the University of Chicago Press Web site.
Product Details
| ISBN-13: | 9780226213071 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 10/01/2001 |
| Series: | Studies in Law and Economics Ser. |
| Edition description: | 1 |
| Pages: | 232 |
| Product dimensions: | 6.00(w) x 9.00(h) x 0.60(d) |
About the Author
Read an Excerpt
The Vote
Bush, Gore, and the Supreme CourtBy Cass R. Sunstein
University of Chicago Press
Copyright © 2001 The University of ChicagoAll right reserved.
ISBN: 0-226-21307-2
Chapter One
"In Such Manner as the Legislature Thereof May Direct": The Outcome in Bush v Gore Defended Richard A. EpsteinFor most American citizens, interest in the presidential election campaign of 2000 ended when the Supreme Court in Bush v Gore refused to allow any further recount of the Florida votes. After a short flurry of heated debate over the soundness of the decision, the nation buckled down to business as usual. The attention of the media was, to say the least, short-lived. No longer did reporters seek out law professors to dissect past legal maneuvers and to predict future ones. Political attention quickly turned to John Ashcroft, Linda Chavez, and Gale Norton-all controversial Bush nominees for key cabinet positions. The public seems not to be composed of legal purists. It expected something ugly, and in a succession of divided opinions from the Florida and United States Supreme Courts, it got it. But resilience is the mark of a nation that quickly shrugged off one bruising legal and political struggle only to begin a second, and a third, and. ...
Constitutional law professors form a different breed, with longer memories and deeper resentments. Although the short-termissue of who counts as President has been resolved, letters and articles have voiced with varying degrees of indignation a common theme that the legitimacy of the Court has been effectively called into question by its political coup d'etat. The Court's decision in Bush v Gore has been regarded in many quarters as a travesty of constitutional law incapable of rational defense. Recently, for example, 280 law professors have signed a public letter attacking a conservative and mean-spirited Court for its devious and hypocritical judicial activism. It is difficult to assess the potential influence of these harsh condemnations and dire predictions on public opinion and the political process. But, as the battles over the Bork and Thomas nominations show, old wounds are easily reopened in confirmation hearings of Presidential Supreme Court nominees.
In this case, I think that overheated rhetoric has led to overstated charges. It is for this reason that I shall mount a qualified rearguard defense of the outcome in Bush v Gore. I shall not do so on the equal protection grounds that carried the day with the five conservative justices who voted to end the recount. Quite simply, I regard that argument as a confused nonstarter at best, which deserves much of the scorn that has been heaped upon it. The same harsh judgment, however, cannot be made of the alternative ground for decision that was championed by Chief Justice Rehnquist in a concurring opinion joined only by Justices Scalia and Thomas, which would have overturned the decision of the Florida Supreme Court on the ground that its rulings ran afoul of Article II, Section 1, clause 2 of the U.S. Constitution, which provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors for the office of President and Vice President. Unlike the equal protection phase of the case, any evaluation of this claim requires us to analyze the decision of the United States Supreme Court in relation to the two decisions of the Florida Supreme Court in the post-election period. Part I discusses the equal protection arguments. Part II is devoted to the less conspicuous but more potent Article II argument.
I. The Equal Protection Claim
Any equal protection challenge to the Florida recount procedure quickly runs into insurmountable difficulties. The initial foray of the U.S. Supreme Court's per curiam opinion was to note the start-and-stop quality of the recount procedures throughout the state. There were wide variation in standards across counties that used the paper ballots with their now infamous chads. There were also wide variations in standards over time within a single county: Palm Beach, for example, had several different standards on the counting of chads, which veered from narrow to broad and back again. There were also allegations that the Democrats (and doubtless the Republicans) placed pressure on the canvassing boards in Broward, Palm Beach, and Miami-Dade Counties to expand the definition of what votes could be counted. None of the variations and switches that took place in time could be easily justified by differences in local equipment or local practices. There is also little doubt that uniformity in election procedures is highly desirable as a minimum, noncontroversial condition for procedural fairness. Indeed, Florida Law charges the Secretary of State, as its chief election officer, with the responsibility to "[o]btain and maintain uniformity in the application, operation and interpretation of the election laws."
Even against this troublesome backdrop, the equal protection claim runs into two serious challenges, one substantive and the other remedial. First, why does the inconsistent administration of the Florida election laws amount to a violation of the Equal Protection clause? Second, why, if such is the case, was it appropriate or necessary to end the recount?
As to the first, there is an obvious gulf between the cases cited by the Supreme Court majority and the unfortunate electoral situation as it developed in Florida. Harper v Virginia Board of Elections struck down a poll tax of up to $1.50 on the ground that it amounted to an implicit discrimination on account of wealth which bore no relation to voting qualifications proper. To be sure, no one can doubt that any individual who cannot pay the tax is excluded from the polls. This free-form decision, which self-consciously sought to distance itself from Lochner v New York, was itself something of a stretch under classical equal protection law given that a poll tax is facially neutral and, unlike literacy tests, can be applied in a mechanical way that eliminates the dangers of political discretion. At root it looks as though Harper rests on the proposition that voting rights are so fundamental that they cannot be abridged on account of wealth. Be that as it may, Harper has scant relevance to the probity of Florida's recount procedures. It is one thing to find a serious affront to equal protection from a wealth test that is uniform in its application but disparate in its impact. It is quite another to find an equal protection violation in a process that does not take into account wealth (or for that matter, race) in deciding what counts as a valid vote. In a word, the Florida scheme is devoid of any suspect classification needed to trigger the equal protection analysis.
Likewise, the per curiam citation to Reynolds v Sims also runs far afield. That case dealt with the refusal of state legislatures to reapportion themselves, in ways that perpetuated massive differences in the size of legislative districts. The obvious imbalance is that all individuals who reside in populous counties systematically have much less political influence than their peers who reside in less populous counties. It is possible therefore to identify unambiguously the winners and losers from the state practice, and to demand in principle at least some justification for imbalances consciously perpetuated by the refusal of the dominant legislative coalition to initiate electoral reforms that would necessarily cut into its own power.
That situation bears scant resemblance to the Bush versus Gore dispute in which all Florida voters, no matter where they lived, had equal say in the outcome of the election. No one in Florida practiced a conscious manipulation of the voting standard that necessarily skews the outcome in favor of one region, or even one group. To see why, start with the simple but realistic assumption that the election features only two candidates and that the winner is selected by a simple majority vote, with one vote per person. Under these circumstances it is sensible to treat the vote as though it were a share in some corporate enterprise, which is run by the party that commands just over 50 percent of the vote. On this view, Harper makes it impossible to exclude shareholders who cannot pay some minimum voting fee. Reynolds in turn holds that one share of stock cannot have ten votes while another share of stock only has one.
Bush v Gore, however, does not fall into either of these simple patterns of electoral skewing for there is no conscious form of ex ante discrimination. From the ex ante perspective no one can identify the determinate class of individuals who benefit or are burdened from the choice of this or that standard for counting ballots. It is not as though one standard was used for Gore voters and another for Bush voters. It is thus no surprise that the per curiam opinion was unable to explain why this asserted equal protection violation worked to Bush's disadvantage. Here the key feature of any equal protection challenge is that it takes no position on the proper standard for counting votes. Rather, like any argument from distributive justice, it merely argues that like cases (or votes) should be treated alike, but remains agnostic on how any-indeed all-of these cases (or votes) ought to be treated. Hence, even if it were conceded that the disparities in the recount processes between counties and within counties were indefensible, the equal protection analysis only demands that these anomalies be eliminated. But the equal protection critique offers no guidance as to how that should be done.
Accordingly, the appropriate remedy (at least if time is no constraint) is to remand the case to the Florida courts to decide which uniform standard should apply. At this point, Gore's prospects have to improve. The Florida Supreme Court made painfully clear that it held that the clear intention of the voter was the touchstone of Florida's election law. It takes little imagination that, if it had been forced to adopt a uniform standard for all punch-card ballots, the Florida Supreme Court could leap to that standard that maximized the number of undervotes that were included in the final tally. It was not just chance that Broward County had produced 567 net Gore votes and Palm Beach County only around 200. No one could be certain that this change in the rules of the game would have erased the slender Bush advantage, but it surely would have been possible.
The equal protection analysis thus does nothing to halt the recount process. What is needed is some anchor that locks the Florida Supreme Court into choosing a more restrictive rule. That anchor was available in Palm Beach County where the local rule stated: "A chad that is fully attached, bearing only an indentation, should not be counted as a vote." Indeed, there was no evidence that any other county in Florida had ever departed from that understanding. This anchor has two advantages. The first is that it offers a litmus test to determine what counts as a valid vote: if the light shines through, then the vote can count; otherwise it does not. The second is that the uniform past practice (especially in Palm Beach) resonates with the powerful notion of fairness that holds that you cannot change the rules after the race has been run.
This last concern probably accounts for the belated and undeveloped reference to possible due process violations in the per curiam opinion. That maneuver runs into the potential doctrinal obstacle that a "vote" as such, notwithstanding its enormous institutional importance, may not rank as either "liberty" or "property" that is covered by the clause. (There is no similar restriction in the Equal Protection clause, which governs most voting cases.) Even the broad definitions of liberty and property do not explicitly cover voting rights. Yet on the other hand, so long as corporate shares, complete with voting rights, count as property, then it may well make sense to accept this broader reading here. Yet even this revised constitutional theory calls for a remand to the Florida courts, albeit with somewhat different instructions. Dimpled chads are out, and the Florida Supreme Court must run its recount under more restricted rules. The per curiam U.S. Supreme Court did not pursue this issue further, but it segues neatly into the Article II issue to which I shall now turn.
II. What Did the Florida Legislature Direct?
To the best of my knowledge no case, prior to Bush v. Gore, had passed on the proper interpretation of the Article II, Section 1, clause 2 requirement that Florida shall "appoint" its presidential electors in the manner that the Florida legislature shall direct." That question presumptively gives rise to many interpretive difficulties that were not raised in this case. To mention just two, it is not clear whether this provision requires that "the manner" for choosing electors be settled before the election or whether it allows Florida to change its mind after a popular election has been held but before the Electoral College meets. It would, to say the least, be very disconcerting to know that the Republican legislature could have voted to ignore the results of the popular vote if Gore had carried the state by one million votes. And if it could not intervene in that case, then could it intervene when the popular vote is much closer?
For our purposes, however, these difficulties can be mercifully skirted, because the root of the sensible challenge to the decisions of the Florida Supreme Court rests on the argument that the litigation phase of this election was not carried out in accordance with the substantive or procedural provisions of Florida's election law. To make this argument successfully, it is necessary to surmount some major pitfalls. Anyone who looks at this statute knows that it, like all complex legislation, calls out for interpretation. Even though the responsibility for interpretation is squarely given to the Secretary of State under the Act, at some level, this task falls into the province of the courts. It must therefore be shown, for there to be a violation of Article II, Section 1, clause 2, that the state court's interpretation does not fall within the boundaries of acceptable interpretation, but rather represents what must be termed, for want of a better term, as a gross deviation from the scheme outlined in the statute. It should not be assumed, however, that this standard means that gross deviations from the legislative scheme can never be found so long as there are latent inconsistencies within the statutory framework. The courts may decide whether or not magenta counts as red, but they cannot do the same for green. Stated otherwise, the Florida Supreme Court can choose either A or B when both are plausible readings, but cannot choose ITLITL, which differs from both A and B, simply because it cannot decide between A or B. The size of the ambiguity limits the scope of judicial discretion.
Second, it does not appear that any gross deviation from the Florida statutory scheme must be intentional. Article II, Section 1, clause 2 reads like a strict liability provision. The Florida legislature directs the manner in which the presidential electors are appointed, and all other actors within the Florida system have to stay within the confines of that directive. The word "direct" is a strong term whose sense is captured in the phrase "directed verdict," which refuses to let a jury stray beyond the area of permissible inferences. It is not necessary that one allege or establish systematic bad faith on the part of the Florida Supreme Court to make the charge stick. It is only necessary to show that the gross deviation has in fact taken place.
(Continues...)
Excerpted from The Vote by Cass R. Sunstein Copyright © 2001 by The University of Chicago. Excerpted by permission.
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Table of Contents
AcknowledgmentsList of Contributors
Introduction: Of Law and Politics—Cass R. Sunstein
"In such Manner as the Legislature Thereof May Direct": The Outcome in Bush v Gore Defended—Richard A. Epstein
Leaving the Decision to Congress—Elizabeth Garrett
Political Judgments—Samuel Issacharoff
The Newest Equal Protection: Regressive Doctrine on a Changeable Court—Pamela S. Karlan
Two-and-a-Half Cheers for Bush v Gore—Michael W. McConnell
Suspicion, or the New Prince—Frank I. Michelman
Democracy and Disorder—Richard H. Pildes
Bush v Gore: Prolegomenon to an Assessment—Richard A. Posner
Bush v Gore: What Were They Thinking?—David A. Strauss
Order Without Law—Cass R. Sunstein
In Defense of the Court's Legitimacy—John C. Yoo
Afterword: Whither Electoral Reforms in the Wake of Bush v Gore—Richard A. Epstein
Index