Legal Affairs – Bush vs. Gore: Why the Court Was More Right Than Wrong

National Journal

The debate over the U.S. Supreme Court’s Dec. 12 decision ending Al Gore’s claim to the presidency has so far been dominated by the passionate outcries of those who portray it as a rank political act by conservative Justices willing to betray their own purported legal principles to hand the White House to George W. Bush.

The unsigned majority opinion has given critics (including me) an inviting target. Prepared in unavoidable haste, it was written quite unpersuasively-as were Chief Justice William H. Rehnquist’s concurrence and the four lame dissents, two of which were also partial concurrences. But the harsher critics overlook three fundamental reasons for finding more to praise than to condemn in the decision: 1) The Florida Supreme Court’s 4-3 ruling on Dec. 8 had ordered a statewide manual recount process so chaotic and transparently tilted toward Gore as to have the foreseeable effect of rigging the recount in the guise of "counting every vote"; 2) it would have been an abdication for the Supreme Court to stand aside while a state court used a biased process to flip a presidential election; and 3) the Florida court had made it impossible to do a fair and constitutional recount before the legal deadline for deciding who won Florida.

My last column (NJ, 12/23/2000, p. 3932) sketched some of the more glaring flaws in the Florida court’s ruling, which, just for starters, awarded Gore several hundred more "votes" in Broward and Miami-Dade counties than he would have gained from any fair and credible recount. The hard question is what the Supreme Court should have done about it. It had no good options and very little time.

In early December (NJ, 12/2/2000, p. 3715), I suggested that the Court should rule that the election dispute was a nonjusticiable political matter to be finally resolved by Congress, not by judges in either Washington or Florida. But it later became apparent that this would have risked a true constitutional crisis, with a House-Senate deadlock over who was President possibly continuing well into January.

The dissenters-John Paul Stevens, Ruth Bader Ginsburg, David H. Souter, and Stephen G. Breyer-had wanted to refuse to hear the Bush appeal. They took this position even though seven Justices, including Souter and Breyer, ended up finding the chad-interpretation process sought by Gore and approved by the Florida court so standardless and arbitrary as to be unconstitutional-and despite the foreseeable side effect of giving Gore an unwarranted public relations bonanza, with many in the news media misinterpreting the denial of review as a signal that Gore and the Florida court were right.

But with the presidency in the balance, it would be intolerable to let any state court, whatever its motives, decree an unconstitutional recount. And although no close legal precedent was available-because the case itself was unprecedented-Bush’s attorneys identified one plausible legal basis for reversing, and one compelling legal basis for doing so.

The first was the constitutional provision (Article II, Section 1) specifying that "the Legislature"-not the judiciary-of each state has the power to direct the manner of choosing presidential electors. Rehnquist’s concurrence, joined by Antonin Scalia and Clarence Thomas, said that the Florida court had so "distorted" Florida’s legislative framework for resolving election disputes as to usurp the Legislature’s power: The legislation seemed designed to allow manual recounts only in limited circumstances (such as malfunctioning voting machines), at the option of election officials, and subject to strict deadlines. But the Florida court held that manual recounts are virtually mandatory after all close elections. It left election officials with no discretion. And it junked the Legislature’s deadlines. While the legislation required that any manual recount include "all" ballots, the Florida court ruled that only a small fraction of them (the so-called undervotes) needed to be inspected. And so on.

Even so, Justices Anthony M. Kennedy and Sandra Day O’Connor were probably right to reserve judgment on the Article II issue. One reason is that the distinction between defensible judicial interpretation and improper judicial usurpation has become so subjective that reasonable people disagree on whether even the Florida court crossed the line. A second reason is that Rehnquist’s legally plausible conclusion-that Florida law bars the counting of ballots (undervotes) that voters punched (or marked) clearly enough to prove their intent to the human eye, albeit not cleanly enough to be read by voting machines-is intuitively unappealing. A third reason is that if the Florida courts had come up with a process widely perceived as fair for completing a statewide manual recount by, say, Dec. 5, the Supreme Court surely would not have intervened to bar the search for evidence of voter intent simply because the process had been devised by the courts, not by the Legislature.

The more straightforward response to the unfairness of the Florida court’s process was to rule, as seven Justices did, that it violated the equal protection of the laws-specifically, the long-protected right of every voter to have his or her ballot given the same weight as every other voter’s-and perhaps also the rights of Bush and Bush voters to due process of law. Two of the more-liberal Justices, Souter and Breyer, agreed with their five more- conservative colleagues that the Florida court’s recount procedure was unconstitutional, because it was, as Souter asserted, "wholly arbitrary." Under the Florida ruling, Souter explained, different vote- counters were using widely differing standards to divine voter intent from "identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as `hanging’ or `dimpled’ chads)." This discriminated against voters in some counties-probably including disproportionate numbers of would-be Bush voters, in my view-by treating their ballots as nonvotes while counting as votes identically marked ballots in places such as heavily Democratic Broward County.

This easily avoidable discrimination was especially unjustifiable given the need for the most exacting procedural fairness in a court-ordered recount in which the stakes were so high and the margin so close: Vote-counters had powerful incentives to help their favorite candidate, and any departure from equal treatment-conscious or unconscious, real or imagined-could have determined who became President.

Stevens and Ginsburg stressed that the use of different chad-counting standards in different counties would cause fewer disparities than the use of different types of voting machines. True. But machine errors are randomly distributed and thus immune to the suspicions of partisan bias that greeted the succession of 2-1 votes by Democratic officials in Broward County to count every dubious dimple they could find.

The majority’s most unfortunate error was its ruling, at 10 p.m. on Dec. 12, that the legal deadline for deciding who had won Florida was only two hours away, obviously leaving no time for any new, improved recount. In fact, although the Florida court itself had portrayed Dec. 12 as a firm deadline, no federal or state law said that. The real deadline, set by Congress to carry out the Constitution’s requirement that presidential electors "give their votes [on] the same day throughout the United States," was Dec. 18.

Could a fair and constitutional recount have been done by then? Almost certainly not. Fairness would have required that the Florida courts hear testimony and opposing arguments before setting a uniform statewide chad- counting standard. That would have taken at least through Dec. 13. Then the vote-counters would have had to inspect the condition of the chads on each of the more than 60,000 undervote ballots, while allowing time for attorneys for Bush and Gore to record objections. That would have taken through Dec. 15, probably longer, leaving far too little time for ballot-by-ballot judicial review and the inevitable appeals up to the Supreme Court. It would have left no time to inspect the more than 100,000 so-called overvotes (let alone the rest of the state’s 6 million ballots), or to give a fair hearing to the Bush claim that any recount limited to undervotes would shortchange would-be Bush voters.

It might nonetheless have been wiser for the Justices to offer the Florida courts until Dec. 18 to attempt a proper recount. Had the Court done that, by 7-2, "it would have been very difficult for the Democrats to scream `partisan decision,’ " says law professor Michael W. McConnell of the University of Utah. "Attention would have shifted to Florida; and when the recount died a natural death for want of time, it would have been difficult to blame the U.S. Supreme Court. Indeed, the real blame would fall on some combination of Gore’s lawyers and the Florida Supreme Court, who were responsible for the delay."

But the Justices had ample reason to distrust the Florida court, and their decision was more right than wrong. The hysteria of some critics reveals more about their own political biases than about the Court.