Covering the Front and Back Pages of the Newspaper
December 13, 2000
POLITICS/LAW: Bush v. Gore, and a few thoughts and observations on the end of an era
From an email I sent to some friends in the aftermath of the Supreme Court's Bush v. Gore decision:
1. First of all, it is a wonderful thing to see all the same liberals who gloried in their raw power to prevail throughout the Clinton years left with the same sputtering, impotent rage we all had during impeachment and other fiascos. As for the consequences, we all predicted doom for Clinton many times, and Bush seems to have a little of Clinton's pure political skill in getting out of the noose.
2. I can't say this is a great decision as far as legal reasoning and judicial restraint. I am always suspicious of judicial opinions that take notice of facts outside the record and that are long on prononcements of fundamental principles and short on citations. However, the Court went out of its way to limit this to the facts at hand, and to show how the current system wasn't so much discriminatory as it was lacking in any rational basis.
Far more to the point, as far as consistency with conservative principles is concerned, the Court made clear that its decision does not (at least on its face) apply to the conduct of elections generally ("The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections"). Rather, the Court's decision focuses in on, and arguably applies a higher standard for, judicial proceedings to review elections ("[W]e are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied") (emphasis added). The net result is to counsel state as well as federal courts to be more circumspect in the future in ordering remedies in election cases where the remedy has not been explicitly set out in advance in a statute. It is this aspect of the decision that essentially constitutionalizes the James Baker Doctrine: you can't go to court to change the rules after the election.
3. The Court also went out of its way to essentially put the blame on the Florida Supreme Court for extending the original deadline in violation of its own statutes, thus leaving no time to remedy a problem that the Court suggested could possibly have been remedied if there had been adequate time. This was clearly Justice O'Connor's stick in the eye, which is fitting in that she is the only member of the Court who has experience as a state legislator (I think Souter might share her experience as a state Supreme Court justice) and doesn't appreciate when courts ignore state statutes. It's also consistent with her view, as well as Justice Kennedy's, strongly favoring respect for state law against the intrusion of the courts (state or federal), a point made and emphasized explicitly by the Chief Justice's concurring opinion.
4. A (pro-Gore) colleague here raised an interesting question that the parties ignored: the Court held, citing Article II section 1, that an "individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College." Is this consistent with Section 2 of the Fourteenth Amendment, which provides that "when the right to vote at any election for the choice of electors for President and Vice President of the United States . . . is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state"? The matter may be somewhat academic, since the Court implicitly concluded that nobody's right to vote was denied or abridged if they cast their ballots into a system that counted all those ballots the same way, and it is arguable that the use of the phrase "any election" implies that no such election need be held if that is the way the legislature wants it. The question would have more direct relevance if the Florida Legislature's slate of electors was challenged as a denial of the right of the people to vote, which is one reason I thought they should have tried to vote in the very same people that were on the ballot.
5. The Twelfth Amendment requires that electors' votes be sealed and opened only by the President of the Senate (i.e., Al Gore) at a special session of both Houses of Congress. Such a session, by tradition and (I believe) by federal statute would be in January. There is no requirement that electors disclose publicly who they voted for, is there? Or are the votes tabulated at public proceedings at the statehouses? What I am getting at is the possibility that, if there are "faithless" electors (following the Cuomo/Beckel line), we might only discover in January that Al Gore actually won the electoral college vote and is the president, despite not having been elected such by the voters who chose the electors, and possibly despite having conceded and not having prepared over the next several weeks for a transition. Ugh.
6. Also in the realm of being hoist by one's own petard, it was interesting to see how the per curiam and concurring opinions relied on some of the more elastic decisions handed down during the civil rights movement with the effect of curtailing state control over the franchise. Justice Ginsburg just undoes her own argument by claiming that it was proper in those cases to disrespect state court conclusions on state law matters because the circumstances suggested motives by the state court to be less than their usual selves. In fact, a case of this nature puts equal if not greater pressures on state courts to twist their own laws so as to determine the leader of the other 49 states.
7. I had a lot of trouble following some of the Bush team's arguments in the Supreme Court on the Article II/statutory deviation points arising from the second Florida Supreme Court decision, but the concurrence focuses in on two good ones: (1) that the Florida Supreme Court should have given greater deference to the Secretary of State in a presidential election than in other elections, inasmuch as it was her statutory mandate; and (2) the definition of "vote" in the protest statute should be presumed to be the same as its definition in the contest statute.
8. In theory, Justice Stevens had a good point -- the majority's equal protection reasoning could arguably be extended to the use of two different types of voting machines with different error rates, although even Justice Souter rejected this argument. I would, however, question as a matter of appellate procedure whether it was proper for him to rely (see footnote 4 of his opinion), as the Florida Supreme Court also erroneously relied, on statistical evidence that was reviewed and rejected as not credible or reliable by the trial court. Once the trial court has disclaimed reliance on such evidence in its factfinding capacity, appellate courts -- who resolve all inferences in favor of the party prevailing at trial -- are forbidden to rest their determinations on it.
9. While Justice Stevens is probably right that the 3 U.S.C. 5 deadline of yesterday is not mandatory, his reliance on the 1960 Hawaii precedent is totally bogus -- Nixon, as the losing candidate and sitting as President of the Senate, ruled (and was supported by voice vote) for the later-cast slate of electors primarily as a gracious gesture, and explicitly stated at the time that he did not intend to create a precedent for accepting the later-submitted slate of electors in the future.
10. Hopefully, Justice Stevens will be correct in his prediction that Americans, in the future, will not blindly accept the notion that courts are always and everywhere impartial and unbiased.
11. At first glance, it seemed wise to accept the Florida Supreme Court's conclusion that the trial judge's "reasonable probability" burden of proof was higher than the "place in doubt" standard used by the legislature, but it would be a very curious construction of a statute to hold that a defendant in any sort of litigation has the burden of proof beyond any "reasonable possibility." I can't think of any cause of action anywhere that has that sort of standard, and given that the legislature stated that it wasn't altering existing caselaw, I think this was a rare case where the circumstances have to trump one reasonable meaning of the statutory language.