Covering the Front and Back Pages of the Newspaper
March 11, 2003
LAW/POLITICS: Rethinking Bush v. Gore
On the flight, I caught up on a fascinating draft law review article by Peter Berkowitz and Benjamin Wittes, defending the Bush v. Gore decision against an attack by Laurence Tribe (the article is a working paper and hasn't been cleaned up for legal citation, but I assume it's fair grounds for comment since they put it on the web; link courtesy of Stanley Kurtz at NRO).
The thesis of the article is that both the majority and concurring opinions in Bush, despite the scorn heaped on them from liberal legal academics, were at least reasonable resolutions of the issues before the Court. The authors are careful to point out that the Court really could have gone either way on the Equal Protection ground and could likewise have declined to hear the case at all; they are more definitive in arguing that (1) Tribe is totally wrong and overwrought in claiming that the terms of the Twelfth Amendment (which gives the Senate the job of counting the electoral votes) barred the Court from considering the issue (they note that Tribe himself did not make this argument in representing Gore before the Supreme Court); (2) that the Florida Supreme Court's decisions were not only unreasonable but a clear departure from the statutory scheme and (3) that this departure gave strong support to the concurring justices' conclusion that the recount procedures that were ordered violated Article II, Section 1 of the Constitution.
They make two particularly interesting arguments. First, they note that Tribe essentially concedes all the key points of federal law -- i.e., that a sufficiently arbitrary or extreme departure from state law or from equal treatment of voters could justify overturning a recount under both the Equal Protection Clause and Article II -- and thus that his quarrel with the Court is really about Florida law and the facts of the case. This, alone, shifts the ground of the dispute away from the idea that the Court bent or twisted constitutional law, and onto the ground where the Court's critics are on their weakest ground, which is in trying to defend the Florida Supreme Court and the Gore camp's absurdly biased legal strategy. They particularly note the utter lack of justification for the Florida Supremes in counting only a partial recount of Miami-Dade County that tilted to the county's most heavily Democratic precincts.
Second, they note that the Florida Supreme Court was completely unjustified in disregarding the clear statutory mandate of deference to Florida Secretary of State Katherine Harris' reading of the election laws, which the Court's critics have apparently elided by looking solely at the recount provisions of the Florida election code and ignoring that the Secretary of State was given authority to interpret the entire election code. This is not the kind of mistake that experienced law professors should make, at least not if they're being intellectually honest.
The authors clearly sympathize more with the Article II argument, and the more I read about the issue, the more I agree with them.
A few of the federal law questions are not addressed by the authors, such as Bush's standing to intervene and raise the Equal Protection challenge, which after all involved not his rights but the rights of the voters (on the other hand, if anyone had standing to raise the Article II issue it would have to be the candidate or possibly the electors). I'd also be interested to see a discussion of whether the political question doctrine would ever justify a federal court in vacating the state court remedy rather than deciding that a political question unsuitable for court decision must therefore be resolved by the state courts.