None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere.
Bush v. Gore, 531 U.S. 98, 111 (2000).
Thus concluded the decision, handed down ten years ago today, that gave us the exact opposite result--the overturning of the express will of the people, and the procedures that their legislature had set, in selecting the President of the United States.
In the seminar on election law I took in law school last year, we were asked to think about "the legacy" of Bush v. Gore. Of course, any Kossack can tell you what the legacy of that decision ultimately was: 9/11, two hopeless wars, economic disaster, Katrina, empowerment of the extremely wealthy and extremely religious at the expense of everyone else, and a weakening of the United States on the world stage.
But on this unfortunate anniversary, I'd like to address a different legacy--how this decision was a deliberate perversion of the law, and how it set the stage for the judicial problems we face today.
I. The Decision
I apologize if some of this is old news, but I want to explain in full detail here what exactly was wrong about the decision. I feel as though most of the media coverage around Bush v. Gore focused on the outcome and not on the details, but the details are critical to understanding where we are now.
I'm not going to rehash all of the various legal proceedings or all of the different recounts that were still being sorted out when the Supreme Court heard oral arguments on December 11, 2000. On this date, there were only two issues the Court had to consider. First, did the different standards for counting ballots between different counties in Florida amount to a violation of Bush's equal rights under the Fourteenth Amendment? And if so, was the proper remedy to remand to the Florida Supreme Court for further clarification, or to stop the recount altogether?
A. The Equal Rights Violation
Section 1 of the Fourteenth Amendment to the United States Constitution states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Beginning in the 1960s, the Supreme Court, led by the courageous Chief Justice Earl Warren, began to recognize that the Equal Protection Clause not only protects the right of qualified citizens to vote, but to have their votes counted. To that end, the Supreme Court struck down not only those tactics which directly restricted the franchise, such as poll taxes, but also those tactics which diluted the votes of African-Americans to the benefit of white voters. As the Court noted in Reynolds v. Sims, "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."
Fast-forwarding to 2000, the issue before the Supreme Court was whether the manner in which Florida had conducted the recount amounted to a "debasement or dilution of the weight of a citizen's vote," and therefore to a violation of Bush's equal protection under the Fourteenth Amendment. Directly prior to this point, the Florida Supreme Court had mandated that the standard for counting votes in the recount, for sorting through the various hanging and dimpled chads, was for the counters to look for the "clear intent of the voter."
The Supreme Court found that this standard was too vague, and had led to unequal treatment of votes among different counties:
The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the “intent of the voter.” This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.
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The want of those rules here has led to unequal evaluation of ballots in various respects. As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.
The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.
Bush v. Gore, 531 U.S. at 105-107.
On that basis, the Supreme Court held 7-2 (with Breyer and Souter siding with the conservatives) that unequal treatment of the ballots among different counties amounted to an equal rights violation, and that counting ballots must be done with the same clear, specific, statewide standards.
Now, on the face of this, there is nothing inherently wrong with that holding. In fact, it probably is at least somewhat consistent with the Warren Court's line of voting rights cases. I think most progressives would agree that the counting of votes should be done under clear standards, and should not depend upon where you live. On the face of it, the fact that there were disparate treatment of ballots in different counties would mean that some votes were diluted or given extra weight depending on the county. While this apparent mandate that states adopt the same standards for counting votes statewide may have gone beyond anything the Supreme Court had previously said, it is at least a somewhat logical extension of the voting rights cases.
Of course, you can't avoid looking at the majority who came up with that holding. Five conservative justices, who both before and after this decision would issue decisions narrowing the scope of the Equal Protection Clause (from everything to abortion to affirmative action to voting rights themselves), agreed to the broadest possible interpretation of it in Bush v. Gore. In fact, it seems downright shocking that Rehnquist, Scalia, and Thomas would agree to such an expansion of 14th Amendment protections at the expense of a state's right to determine its own voting procedures. Especially if you consider that a "strict constructionist" would point out that the Constitution specifically grants to states the right to determine their own election procedures. It goes against everything they ever had and ever would stand for as judges. It's a mind-boggling result.
Mind-boggling unless, of course, you suspect that they deliberately twisted the law or conveniently forgot their history to get the result they wanted.
But they would never do that, would they?
B. The Remedy
Assuming for the sake of argument that the holding on the Equal Protection Clause was correct (even if some justices may have reached the right conclusions for the wrong reasons), the question remaining was whether to remand the issue to the Florida Supreme Court to clarify what "the intent of the voter" meant, or to stop the recount altogether.
In a 5-4 holding the Supreme Court ruled that there was no time to finish the recount before the meeting of the Electoral College:
The Supreme Court of Florida has said that the legislature intended the State's electors to “participate fully in the federal electoral process,” as provided in 3 U.S.C. § 5. That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.
Bush v. Gore, 531 U.S. at 110.
Well, that settles it, doesn't it? They had reached the date as set forth in the law regarding the Electoral College, and even if the delays in the recount up to that point were partially due to all of the various lawsuits going on, there was nothing they could do anymore, right?
WRONG.
What does 3 U.S.C. § 5 actually say?
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
To put it in plain English--if a state already has a system in place for resolving election controversies, and it resolves those controversies six days prior to the date of the meeting of the electors--which was December 18 in 2000, so six days prior was December 12, when this decision was handed down--then the resolution of those controversies would be conclusive. This is what is known as the "safe harbor provision."
And yes, the safe harbor provision is conclusive. Conclusive on the people actually counting the electoral votes, as the next provision mandates that the resolution would govern the counting of the electoral votes.
Conclusive not on the state of Florida. Conclusive on Congress. 3 U.S.C. § 5 applies to CONGRESS. It's Congress that has to accept the results of election controversies as conclusive if done during the safe harbor period.
And if not? Well, the law says nothing about that. And as Justice Ginsburg points out, damningly, in her dissent:
...the December 12 “deadline” for bringing Florida's electoral votes into 3 U.S.C. § 5's safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes “had not been ... regularly given.” 3 U.S.C. § 15. The statute identifies other significant dates. See, e.g., § 7 (specifying December 18 as the date electors “shall meet and give their votes”); § 12 (specifying “the fourth Wednesday in December”--this year, December 27--as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately). But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on “the sixth day of January,” the validity of electoral votes. § 15.
Bush v. Gore, 531 U.S. at 143-144.
Read that paragraph very carefully. There is nothing that would have stopped Florida from waiting to send in their electoral votes after December 12. There is nothing that would have stopped them from waiting until January 6. The Supreme Court claimed that the Florida Supreme Court had indicated its intent to fully participate in the federal process, but to attribute to Florida a desire to adhere to 3 U.S.C. § 5 at all costs, even if a valid recount could have continued, is just a flimsy way of passing the buck.
There is no real reason, under the laws governing the counting of the electoral votes, why the state of Florida could not have had three more weeks to continue the recount--to fulfill the equal rights of the voters who risked having their votes not counted if the recount was stopped. And yet those equal rights were violated based on an arbitrary deadline and a misreading of the law so inexplicable that the only real explanation is that it was willful.
I don't make such accusations lightly, but the Justices knew damn well what they were doing. And what they were doing was to ensure that they, not the state of Florida, had the final say over the Presidential election.
II. The Legacy
Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
Bush v. Gore, 531 U.S. at 128-129 (Stevens, J., dissenting)
My professor from the election law seminar said that this was the legacy of Bush v. Gore--that five Justices made a mockery of the law, and the American people, for the most part, yawned.
But that yawning, that sense that we should all just "get over it," has had grave consequences for democracy. Bush v. Gore could rightfully be said to have marked the beginning of a new era of conservative judicial activism. In the ten years since the decision, the Supreme Court has veered further to the right with the additions of Roberts and Alito. The conservatives have used this newfound energy to steamroll decades worth of precedent and legislative decisions, this list from the Alliance for Justice being only a small sample. You only have to look at how the one meaningful attempt at campaign finance reform, McCain-Feingold, was systematically gutted by the Supreme Court before being almost destroyed entirely earlier this year by Citizens United (although, I personally don't think Citizens United changed the circumstances that much in practice, just gave cover to what was already happening).
This conservative activism and politicization of the judiciary extends even to the selection of judges for the lower federal courts, long thought to be the prerogative of the President. To President Obama's credit, he has nominated more women and minorities to the federal bench than any other President in history, including one particularly wise Latina to the Supreme Court. But thanks to Senate GOP obstructionism, less than 43% of his nominees have been confirmed. A good chunk of the country is now in a state of judicial emergency. But the Republicans don't care; all they care about is getting yet another chance to thumb their noses at Obama and the Democrats, who are not pushing back on this issue.
I don't want to wade into the fights over Obama that have gone on here recently, I just want to point out that it matters who controls the nominations to the federal bench. We need Senate reform, and we need it yesterday.
III. The Coda
There has been one, slightly more positive, legal development in light of Bush v. Gore that I'd like to share.
Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
Bush v. Gore, 531 U.S. at 109.
This sentence baffled observers after the decision was handed down. And for good reason--the Supreme Court basically tried to weasel their way out of the full weight of their decision by stating that it shouldn't apply past the present circumstances.
However, it doesn't work that way in the Anglo-American common-law system. Lower courts are bound to apply the precedents set by the higher courts, regardless of whether the upper courts think they should. And the funny thing that has happened in light of Bush v. Gore is that not one court considering similar issues since then has given that sentence any weight. On the contrary, they've gone right ahead and applied it as valid precedent. The 9th Circuit initially postponed the California recall election of 2003, using Bush v. Gore as precedent to say that certain counties couldn't use punchcard ballots for fear of equal rights violations. In deciding the Coleman-Franken Senate race last year, the Minnesota Supreme Court declined to apply Bush v. Gore on factual grounds, not on the grounds that they couldn't apply it. And most recently, sore loser Joe Miller cited to Bush v. Gore to challenge the counting of write-in ballots for Lisa Murkowski in Alaska.
I'm confident, if nothing else, that Bush v. Gore will eventually get back to the Supreme Court. And on that day, the Justices will have to explain what exactly they meant.
IV. Conclusion
I was 14 when Bush v. Gore was decided. It was that election and subsequent controversy that made me politically aware (it would take the Iraq War to make me an activist). I'm now 24 and a semester away from finishing law school. I have no idea what sort of impact I'll make on the law. But I do know this--I'm not going to "get over" the travesty that was this decision, and I'm not going to forget it.
UPDATE: Rescued and then Recommended? Thank you all!