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The Supreme Court Shot Itself in the Foot While Shooting Down Al Gore.

For any constitutionalist, the proper reaction to the U.S. Supreme Court's majority opinion in Bush v. Gore is dismay. In dispensing with the Florida high court's efforts to resolve a confusing election-code tangle, derailing the election-contest process in Florida, and sidestepping the constitutionally established mechanisms for deciding disputed elections, the U.S. Supreme Court has done more than exceed the bounds of limited judicial power--it also confirmed the most cynical view of how the nation's top court operates.

At this point, if you suspect that I'm a Gore supporter, you re right. But before you dismiss my complaints as Democratic whining, let me explain that I haven't lost a moment's sleep over the fact that the other guy won. And it bothers me not a whit that the candidate who lost in the popular vote count won in the Electoral College. What's more, I don't even blame Bush or his team for what the Supreme Court did wrong--I'd be first in line to defend the right and prerogative of both the Gore and Bush teams to take their election disputes to state or federal courts.

In order to get a handle on what the Supreme Court did wrong in Bush v. Gore, it helps to look at the Florida Supreme Court's decision in Gore v. Harris--the 4-3 decision ordering a statewide manual recount of the "undervote" ballots in all counties in which those ballots had not already been manually tabulated. What you see in the Florida high court's opinions in Gore v. Harris--in both the majority opinion and in the dissents--are jurists laboring under excruciating constraints to get the right legal answers to a complex legal problem.

The truth about the Florida Supreme Court justices' handling of Gore v. Harris runs counter to a couple of myths purveyed by partisans and pundits about that high court, whose justices were appointed by Democratic governors. But the partisans and pundits are off-base. To underscore where the U.S. Supreme Court went wrong in Bush v. Gore, let's clear away the prevailing myths about the supposedly partisan Florida Supreme Court and give its justices credit for what they, unlike their federal counterparts, did right.

Myth One: The partisan, "Democrat-dominated" Florida Supreme Court screwed up its own state law in its eagerness to give the election to Al Gore, so the U.S. Supreme Court had to step in to correct the problem.

In reality, the Florida legislature had presented the courts with a crazy quilt of ambiguous and/or self-contradictory election laws. Additionally, the Florida Supreme Court was faced with a decision in which a trial court judge (in the word of the majority opinion) "did not make any findings as to the factual allegations made in the complaint and did not reference any of the testimony adduced in the two-day evidentiary hearing, other than to summarily state that the plaintiffs failed to meet their burden of proof."

Apart from seeming to dispense with his role as fact-finder, Judge N. Sanders Sauls also seemed to conflate the "protest" and "contest" phases of disputing an election in Florida (and the differing burdens of proof required in each phase). When a trial court judge reaches factual and legal conclusions in a summary, arbitrary, or legally questionable way, he creates the kind of issues that state appellate courts were created to sort out. And a fair-minded reading of the Florida Supreme Court's decision shows it struggling mightily to do so fairly and even-handedly. Consider: Of the five arguments made by Gore's team, the Florida Supreme Court's four-justice majority accepted only three. Ruling against Gore on the other two arguments ensured that some additional Bush votes would be included in the final count, and that the additional 3,300 votes from Palm Beach County, most of which were thought to be for Gore, would not be counted. Also, three of the court's seven Democrat-appointed justices would have ruled against Gore altogether.

If the Florida Supremes were really the judicial-activist, partisan-Democrat meddlers its GOP critics say they were, they would have come up with some chad-centric standard as to how to interpret ballots that vote-counting machines rejected. Unfortunately for Al Gore, it was the refusal of the Florida Supreme Court to legislate a new, precise, statewide standard for interpreting ballots--a refusal to be a judicially active, changing-the-rules-in-the-middle-of-the-game kind of court--that led the U.S. Supreme Court to decide that Florida's election-code provisions violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Myth Two: The Florida Supreme Court usurped the prerogative of the Florida legislature to decide how its state's electors are chosen, in violation of both state and federal law.

In fact, the Florida Supreme Court was doing just what it was supposed to do, consistent with Article II of the U.S. Constitution, with the federal elector-selection statute, and with state election law. It's true that Article II (later modified by the 12th Amendment) gives to state legislatures the power to pick a slate of electors for the Electoral College. But that doesn't exclude the state courts from playing any role. Federal lawmakers have always known that state judges might have to do so. Title 3, Sec. 5, of the U.S. Code, for example, contemplates that disputes arising from state elector-election contests may be decided by a state's judiciary, provided that the law under which that contest is decided was in place before Election Day. As it happens, Section 102.168 of the Florida Statutes--in place before Nov. 7--allows for Florida elections, other than those for the state's house and senate, to be contested in Florida courts.

The same Florida election statute authorizes a judge to "fashion such orders as he...deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under the circumstances." In other words, critics of the Florida Supreme Court's broad recount are giving no weight to the fact that Florida election law expressly allows the Florida judiciary to do all sorts of things in handling election disputes. Anyone looking for a source of the Florida Supremes' authority to order a statewide manual recount of "undervotes" need look no further.

One of the rules that arguably governs how Florida courts must deal with contradictory directives of the Florida legislature is that a court must interpret the state election code whenever possible in ways that don't lead to absurd or meaningless results. For example, the courts should reject rigid, formalistic reading of ambiguous or contradictory provisions if such a reading doesn't serve the legislative purpose of a statute, or if it actively undercuts it. It's this sort of reasoning that led the Florida Supremes to conclude that the resolution of a contest requires only the statewide manual counting of contested "undervotes" rather than of all the votes (as the Bush team argued). What's the point of wasting time with uncontested ballots when the dispute is over a much smaller number of contested ones?

Maybe you don't buy that conclusion, but a conclusion that favors one political candidate over another is not in itself proof of partisanship. When you read the Florida Supreme Court's majority opinion, you see an immense effort to adhere to what the court believes the Florida legislature has defined its role in election-law questions to be. "This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in resolving elections disputes," the Florida majority writes. Both the majority decision and the dissenters' opinions in Gore v. Harris, even though they reach differing conclusions, are reasoning in ways consistent with standard juris-prudential principles. As important, they are laboring to adhere both to their own judiciary's general body of precedent and to the specific legal and factual constraints of the case before them. I would not have been g reatly troubled if the Florida Supremes had gone 4-3 against a statewide, court-ordered manual recount. That's because a constitutional theorist perusing the majority's and the dissenters' opinions in Gore v. Harris, can see a principled jurisprudential path to either result.

The picture of the Florida justices' reasoning processes we get from both the majority and the dissents casts the U.S. Supreme Court's majority in Bush v. Gore in a highly unflattering light. Unlike the Florida justices in Gore v. Harris, the majority in Bush v. Gore seems to have acted as partisans, exceeding the well-understood limitations on federal judicial power. The U.S. Supreme Court majority showed only nominal reluctance to make new law (by finding that the 14th Amendment's Equal Protection clause applies to vote-counting standards) and to assert control over the outcome of a disputed election. Unlike the Florida courts, the federal courts have no express role in disputed elections, and in fact both the Constitution and federal law give Congress, not the federal courts, the fundamental authority to resolve disputes involving presidential elections. What's more, the U.S. Supreme Court stepped over the lines that supposedly constrain federal court authority in the service of plainly shallow and incons istent reasoning.

he U.S. Supreme Court has no special grant of authority to deal with election issues--not even those arising in federal elections--absent some larger federal statutory or constitutional interest. At bottom, the U.S. Supreme Court is one of defined and limited power, as spelled out in Article III of the U.S. Constitution. You can tell how eager the majority was to involve itself in Bush v. Gore by how much effort the justices in the majority gave to finding a basis for their jurisdiction, and by how shallow and problematic the arguments for such jurisdiction turned out to be.

Ultimately, the attempt to find a basis in Title 3 of the U.S. Code, which sets up a statutory framework for Congress' handling and interpretation of the states' slates of electors, was a washout. Only three justices were willing to stomach the transmuting of these federal laws, which were designed to mandate and limit Congress' conduct, into a limitation on state courts. Still, it's disconcerting that these three justices, heretofore identified with both the states' rights theory of federalism and with a focus on the plain text of the statutes they must interpret, were willing to abandon those theories in service of a highly creative "interpretation" of a federal statute--one that, had it gotten two more votes, would have amounted to a bald federal pre-emption of the states' authority to control their own process of selecting electors.

The equal protection theory that ultimately led the U.S. Supreme Court to effectively decide the election in Bush's favor is not in principle so jurisprudentially perverse as the Title 3 theory, and ultimately some elements of the equal protection theory won the support of seven of nine justices. Here the perversity isn't inherent in the theory itself but in what five justices were willing to do in the name of the 14th Amendment's Equal Protection clause.

The majority's equal protection argument begins with the well-established principle that the 14th Amendment's Equal Protection clause prohibits state governments from treating some citizens worse than others when that different treatment is based either on their identity and background or violates "fundamental fairness." Voting is a basic right, so the fact that some Florida counties use different standards than other Florida counties when participating in a statewide manual recount of "undervotes" at least raises the possibility that some citizens' rights under the Equal Protection clause have been violated. Similar arguments may be grounded in the Florida Supreme Court's focus on undervotes, which might be said to be unfair to those whose ballots were rejected as "overvotes" (with more than one presidential vote apparently marked on the ballot), or in the fact that all ballots, rather than just the undervotes, were recounted in some but not all counties.

Who can argue with the general principle that no person's vote should count more or less than any other's? But the devil's in the details, and both the factual situation in Florida and the remedy imposed by the U.S. Supreme Court raise doubts about how much the five justices who voted to stay and later to bar the manual recount really cared about the equal protection or "fundamental fairness" issues.

For one thing, it's unclear that the differences in ballot-counting standards among Florida counties add up to a constitutional violation of such magnitude that the U.S. Supreme Court needed to step in. Whatever rule might be used (counting dimpled chads, say, or refusing to count them), the rule itself won't inherently favor one candidate over another and thus won't favor one candidate's voters over the others'.

For another, different counties in Florida use different kinds of voting machines and ballot-counting machines, with the now well-documented result that some systems reject more legal ballots than others do. The Supreme Court's order blocking manual recounts ensured that votes in one county are more likely to count than votes in another county.

Compounding this latter problem is the fact that ethnic or racial minorities may be more concentrated in counties that use the less-reliable voting-machine

technologies. Thus, blocking manual recounts may have had a disproportionate effect on certain voting minorities. This isn't the result a court is normally looking for when it invokes the Equal Protection clause and claims to be protecting fundamental rights.

As to the purported neglect of "overvotes," the dissenters rightly pointed out that no one had presented evidence of an overvote problem. In other words, the majority was so eager to find an equal protection violation that they assumed facts not in evidence.

The majority was aware of these details, which strongly suggests that these five justices' invocation of the Equal Protection clause was opportunistic and maybe even hypocritical. In effect, the Supreme Court was saying "We had to refuse to count your (possibly incorrectly rejected) votes in order to vindicate your right to have your votes counted fairly."

Which brings us to the question of what vital, constitutionally significant interests were being served by the U.S. Supreme Court's decision to block the Florida Supreme Court's statewide manual recount of undervotes, with the result that some votes would never be counted in time to affect this election? The best the justices in the majority can offer is this, in Scalia's concurrence to the initial stay of the recounts: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." Earth to Scalia: If improperly conducted recounts risk generating such a cloud, a court-mandated halt of the recounts is not exactly clear-skied if legitimacy is your concern.

Another notion the five justices advanced was that the ticking of the Electoral College deadline clocks meant that the Supreme Court needed to impose finality on the election dispute. But it's hard to see how this need for finality, even if true, required that the U.S. Supreme Court prevent the Florida Supreme Court from even trying to craft a remedy consistent with the finding of an equal protection violation. Suppose Florida's high court had been unable to resolve the issue by any deadline--so what? As Justice Breyer pointed out in his dissent, "The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a road map of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S.C. 5 (providing that, where a 'State shall have provided, by laws enacted prior to [election day], for its final determination of any controversy or contest concerning the appointme nt of... electors...by judicial or other methods,' the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court."

If the blocking of the recount, which resulted in the effective erasure of many citizens' votes, was not enough to cast doubt on the Supreme Court majority's commitment to equal protection and fundamental fairness, the majority's attempt to limit the impact of its newly discovered equal protection issue to this particular case would be. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," writes the majority in its unsigned opinion. In other words, the majority seems to be saying, we believe Florida's election code issues add up to an equal protection problem only insofar as they raise the possibility that George Bush might not win Florida. But don't expect us to be bound by this decision in future cases.

We'll get the chance to see how well the majority's commitment to this equal protection issue holds up. Despite the justices' attempt to limit the effect of this new doctrine, it will be an invitation to future candidates to mount federal equal protection challenges to every state-based resolution of an election dispute. Finality, the thing the majority seemed to value more highly even than citizens' rights to have their votes counted, may be yet another casualty of Bush v. Gore, as state election-dispute cases increasingly lead to simultaneous or subsequent litigation in the federal courts.

But the biggest casualty of all is the credibility of the Supreme Court as a principled arbiter of the Constitution and of federal law. It's a shame that the Court did not meditate long enough on one of the key observations from the Florida Supreme Court's Chief Justice Wells, who warned in his dissent in Gore v. Harris of the hazards of a court's being too willing to intervene. "We run a great risk that every election will result in judicial testing," wrote Wells. "Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters--not by judges."

Whatever one may think of the Florida high court's handling of the election cases, there's no disputing that when it comes to lack of judicial restraint, it's the U.S. Supreme Court that takes the prize.

Mike Godwin (mnemonic@well.com) is policy fellow at the Center for Democracy and Technology.
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Author:Godwin, Mike
Publication:Reason
Geographic Code:1USA
Date:Mar 1, 2001
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