Legal Affairs – Bush vs. Gore: A First Draft For the Justices to Consider

National Journal

Dear Mr. Chief Justice: I offer below a first draft of an opinion for your consideration. It stresses that no court has the constitutional power to pass final judgment on a dispute over who won a presidential election and that the Florida Supreme Court’s decision of Nov. 21-which concocted new vote-counting rules after the election-is binding neither on the Florida Legislature nor on Congress. The bottom line is that this virtual tie between Bush and Gore presents a political question on which the Constitution gives the last word to the people’s elected representatives, not to judges seeking to divine "the will of the people" by squinting to see almost-invisible dimples. Please forgive the footnotes, which I include for fun and with no illusion that they belong in any opinion for the Court.-Volunteer Clerk

In this case, we consider whether the winner of the extraordinarily close presidential election is to be authoritatively identified by Florida judges, by this Court, or by elected representatives of the people.

Petitioner, Gov. George W. Bush, asks us to hold that the Florida Supreme Court violated federal law in the decision below by "usurp[ing]" the power of the Florida Legislature to specify procedures for choosing presidential electors. That Nov. 21 decision eschewed "hypertechnical reliance" upon the Legislature’s deadline (Nov. 14) for submission of county election returns, including any new votes found in manual recounts. Instead, the court created its own deadline (5 p.m. on Sunday, Nov. 26) to allow more time for manual recounts. The court effectively ordered that Vice President Al Gore be certified as winner of Florida’s electoral votes if the recounts in three heavily Democratic counties erased Bush’s existing lead. This, said the Florida court, was the best way to divine the "will of the people."1

Bush claims that the Florida court disregarded the Florida Election Code’s carefully crafted plan for resolving disputes over vote counts and chose instead to invent new rules in the guise of statutory interpretation. This post-election rule change, Bush submits, was contrary to the federal Electoral Count Act of 1887.

Respondents, including Gore, urge that we affirm the Florida Supreme Court on the ground that it simply "applied garden-variety principles of statutory interpretation to resolve ambiguities and reconcile conflicting provisions" in the Florida Election Code. Noting our usual deference to state courts as final expositors of state law, Gore concludes that we have no power to question the Florida court’s interpretation, even if we find it logically unpersuasive.

The Florida Legislature, in a thoughtful amicus brief in support of neither party (signed by former Solicitor General Charles Fried), argues principally that the dispute at the heart of this case is not justiciable because it is a political matter to be decided by Congress. This brief also asserts that competing claims by presidential candidates about having their electors’ votes counted are "to be decided in the first instance by the state Legislature," not state courts, and thus seems to imply that Congress should count the electors (if any) approved by the Legislature.

Article II, Section 1 of the Constitution specifies that "each State shall appoint [presidential electors] in such manner as the Legislature thereof may direct" (emphasis supplied) and that all states must do so on a uniform date chosen by Congress. The 12th Amendment specifies that the electors’ votes "shall … be counted" by Congress. Bush, Gore, and the Florida Legislature also point to various provisions of the 1887 act. It specifies (in 3 U.S.C. section 2) that whenever any state has held an election to choose electors but has failed to make a choice on Election Day, "the electors may be appointed on a subsequent day in such a manner as the Legislature of such state may direct." It also provides (in 3 U.S.C. section 5) that states may specify "judicial or other methods or procedures" for resolving disputes over appointment of electors "by laws enacted prior to" Election Day.

Bush says (as does the Legislature, arguing in the alternative) that the Florida Supreme Court’s ruling was contrary to the 1887 act because that court made up new rules rather than applying "laws enacted prior to" Election Day. Gore denies this, asserting that Florida Supreme Court decisions are conclusive as to the meaning of Florida laws and that there was thus no post-election rule change. Gore thereby suggests that this Court lacks power to review either the Nov. 21 decision or any future interpretations of Florida law, even if the Florida courts purport to pick the next President.

We decline the invitations from both Bush and Gore to decide whether the Florida court departed from pre-existing state law, and whether any such departure would in these unique circumstances violate federal law. We need not consider those issues, because we rule instead that (as the Florida Legislature contends) this case involves a nonjusticiable political matter to be resolved by elected representatives: Congress has the judicially unreviewable power to determine the meaning of both Article II, Section 1 and the 1887 act, and thus to resolve any dispute between Florida’s Legislature and its courts over appointment of electors.

This is implicit in the 12th Amendment’s exclusive assignment to Congress of the authority to "count" electoral votes. It is consistent with the 1887 act’s design to discourage retroactive judicial (or other) manipulations of election law to change the outcome of a presidential election. And it is in keeping with our decision in McPherson vs. Blacker (1892), which held: "The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states."

We express no view on the Florida Legislature’s further implication (if any) that any electors approved by it should be the ones counted by Congress in the event of a dispute.

We are aware of suggestions that we alone can somehow legitimize the outcome of this election in the eyes of the public and the losing side. But we are judges, not magicians. Any process that we could choose at this late date would be seen as favoring either Bush or Gore. (So would a dismissal of certiorari as improvidently granted.) Indeed, some might see even today’s decision as favoring Bush, by implicitly encouraging the Florida Legislature to challenge any and all Florida court decisions won by Gore-or perhaps as favoring Gore, by allowing the Florida Supreme Court’s much-criticized Nov. 21 decision to stand. It is far from clear to us, however, whether or not the Florida courts will ultimately rule that Gore has won Florida’s electors; whether or not the Legislature will decide to intervene; and how Congress would resolve any dispute between Florida’s Legislature and its courts.2

More important, it is the Constitution, as construed by the people’s elected representatives in Congress-and not (in this unusual instance) by any court-that apportions power between state legislatures and courts in the choice of presidential electors. If, in the end, people on the losing side believe that Congress or the Florida Legislature has flouted the will of the people, their remedy must lie at the polls, not in any courtroom.


1. As to the Florida Supreme Court’s devotion to the "will of the people," see Armstrong vs. Harris (Sept. 7, 2000), a Florida Supreme Court ruling nullifying a state constitutional amendment adopted in 1998 by "the people" to curb that court’s own power to prevent executions. The 1998 amendment was unanimously proposed by the Legislature and approved by 73 percent of the voters. The Florida court speculated that voters may have been confused by the ballot title and summary, which did not spell out that the amendment would increase the Legislature’s power vis-a-vis the Court’s. If you believe that Florida’s voters did not understand what they wanted to do, we have a few federal courthouses we’d like to sell you.

2. The 1887 act lists detailed procedures for Congress to use in resolving any such disputes. Assuming a party-line division when Congress counts the electoral votes in early January, the House would vote to count Bush’s electors and the Senate would split 50-50, with Gore, as Vice President, casting the deciding vote for himself. This would trigger a clause specifying that "if the two Houses shall disagree,… the votes of the electors whose appointment shall have been certified by the executive of the state … shall be counted." Those would be the electors already certified by Gov. Jeb Bush. We did not make this up. It’s the law. See 3 U.S.C. section 15.