I was always curious about this: Do you think that Bush v. Gore (2000) was genuinely as bad as its critics say it was?
Basically, while I think that this decision was partisan, I can’t help but wonder if a conscientious judge could have likewise reached the same verdict that the Bush v. Gore majority did.
For reference, here is the text of Bush v. Gore:
www.law.cornell.edu/…
Indeed, here is how I think of Bush v. Gore:
-I have doubts about whether Bush had standing to press an equal protection challenge to Florida’s recount, but I wonder if, as a candidate, he could have pressed a due process challenge to Florida’s recount. Indeed, Justice Souter said in his Bush v. Gore dissent that this case could be viewed either as an equal protection case or as a due process case.
-Not having a uniform standard for counting ballots would mean that identical ballots would get treated differently. In turn, this fact combined with the fact that this recount only included the undervotes in Florida rather than all of the ballots in Florida seems like it could be a due process violation. After all, even if one ignores the lack of a uniform standard, there is still the fact that if you want to have a vote count which is more accurate than the machine recount, you should manually recount not only the undervotes, but also the overvotes and the ballots which were marked by the machines as legal votes (after all, as the Bush v. Gore per curiam opinion stated, a voter could have marked two candidates on his or her ballot and this ballot would have been treated as a legal vote if the machine could only read one of these marks even though this ballot should have been treated as an invalid ballot and thus as a no vote).
-The remedy in Bush v. Gore was a bit clumsy, but if one interprets federal law as requiring all recounts to end on December 18, 2000 (which is when the electors are required by federal law to vote), then it would not be implausible to conclude that Florida’s legislature would have preferred to take advantage of the safe harbor than to spend the six days before December 18, 2000 (probably unsuccessfully) trying to recount all six million Florida ballots by hand. While one can argue that a state court should make the final decision in regards to this, I would like to point out that the U.S. Supreme Court didn’t quite forbid the Florida Supreme Court from clarifying Florida law. Indeed, it simply made its wishes known. Plus, in any case, one can argue that Article II of the U.S. Constitution gives federal courts the power to interpret state laws pertaining to presidential elections.
For the record, I am not saying that one has to read federal law as requiring an end to all recounts by December 18, 2000. Rather, I am simply saying that this is a plausible interpretation of federal law (just like the January 6, 2001 deadline can also be a plausible interpretation of federal law).
Basically, Justices Breyer and Souter appear to have misunderstood the majority’s reasoning in Bush v. Gore. Specifically, Breyer and Souter only wanted to recount the 60,000 undervotes in Florida while the Bush v. Gore majority appear to have said that only a recount which includes all six million Florida ballots would be constitutional (if time wasn’t an issue, that is). In turn, this appears to make the majority’s desire to halt the counting six days early much more reasonable; after all, if Florida would have failed to recount all six million ballots in six days, the U.S. Supreme Court might have been put in the very uncomfortable position of having to strike down Florida’s incomplete recount as a violation of due process.
-While the limiting language in Bush v. Gore has been criticized by some people, I would like to point out that the U.S. Supreme Court didn’t say that the principles of Bush v. Gore would be inapplicable in future cases. Rather, it simply wanted to avoid making definitive rulings on future equal protection related issues in elections until a future point in time. In this regard, what the Bush v. Gore majority did can be compared to, say, the fact that the Brown v. Board of Education (1954) majority limited their ruling to segregated schools instead of also, say, immediately striking down anti-miscegenation laws as well. In other words, the Bush v. Gore majority used limiting language to avoid making rulings on issues which they haven’t addressed yet.
Also, for what it’s worth, some U.S. courts did use Bush v. Gore as precedent without being overturned by the U.S. Supreme Court afterwards. Thus, one certainly can’t say that Bush v. Gore has absolutely no precedential value.
Anyway, any thoughts on what I wrote here? After all, I honestly do wonder if, while probably being partisan, the Bush v. Gore majority nevertheless got much more criticism for their ruling than they deserved.