The Federalism Project

What's New
AEI Bookshelf
In the Circuits
Supreme Court

Tort Reform


Contact Us

American Enterprise Institute

Analysis of Bush v. Gore

John P. Elwood, Miller, Cassidy, Larroca & Lewin, L.L.P.

As the whole country knows by now, Monday night, shortly after 10 pm, the Court, by a 5-4 margin in a per curiam opinion, reversed and (nominally) remanded in Bush v. Gore. The Court concluded that the Florida recount procedures violated the Equal Protection Clause but declined to order further recounting on the grounds that there was insufficient time to conduct a valid count within the time necessary to qualify for the safe harbor provision of 3 U.S.C. § 5, which SCOFLA said the state legislature intended to do. The Chief and Justices O'Connor, Scalia, Kennedy and Thomas subscribed to the per curiam opinion. Although Justices Souter and Breyer agreed that the Florida recount violated the Equal Protection Clause, they wanted to remand for recounting under the proper standard. Although they agreed with the disposition of the case at a general level (i.e., reverse and remand), their opinions are styled as straight dissents rather than concurrences in part or in the judgment.

The majority opinion began by noting that there is no federal right of suffrage in presidential elections under the Constitution; the state legislature can just pick the state's electors if it feels like it. However, when the legislature vests the right to vote in its people, it has to give those votes equal weight and treatment under the equal protection clause. Without resolving whether SCOFLA had the authority under Florida law to define what a legal vote is (dimpled chad? hanging one?) and to mandate a manual recount (as the Bush folks had requested), the Court found the recount mechanisms implemented in response to the SCOFLA decision to violate equal protection. While "intent of the voter" was "unobjectionable as an abstract proposition and starting principle," the absence of specific standards to ensure its equal application doomed it. Here, standards might (as Boies conceded, very likely to his chagrin) vary from counting table to counting table, and the evidence in the record suggested wide variation between jurisdictions that counted dimpled chads and ones that only counted partially detached ones; Palm Beach County even switched in midstream. SCOFLA "ratified this uneven treatment" by ordering that recount totals from counties with uneven standards be included in the certified total. Plus, SCOFLA ordered undervotes, but not overvotes, to be counted, although they arguably were susceptible to the same kind of vote divination, and permitted partial recount totals to be included in the totals.

The Court emphasized that it was not asked whether "local entities . . . may develop different systems for implementing elections," but simply to pass on the validity of SCOFLA's action in this case. The most narrow holding appears to be this: "When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." The Court concluded that "the recount cannot be conducted in compliance with the requirements of equal protection and due process [where did that come from?] without substantial additional work," namely adopting uniform standards and procedures for implementing them. SCOFLA said that the legislature intended the state's electors to "participate fully in the federal election process," meaning that it intended to take advantage of the safe-harbor provision of 3 U.S.C. § 5, meaning electors had to be named by midnight on December 12. The recount that could be done by then would be unconstitutional, and remanding for another recount would violate the legislative will found by SCOFLA of taking advantage of the safe-harbor provision. Although the Court didn't come right out and say "no more recounts!," it basically said so, by saying that Justice Breyer's suggestion that the recount proceed until Dec. 18 would violate the legislative wish to take advantage of the safe harbor and thus would not be part of an "appropriate" order authorized by Florida law. Needless to say, there are a more than a few people who are a touch sore that the Supremes ran out so much of the clock on these opinions, although in their defense (1) they did hurry and (2) any count that would have been held before this opinion would have been invalidated anyway.

It was a night of firsts. To begin with the mundane, this is clearly the fastest Court opinion on the books, beating last week's piddly p.c. and the Pentagon Papers case by days. On a more significant level, this case will cast a long shadow. Although the Court (and the concurrence) explicitly said "[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities" this is obviously an extremely broad-ranging decision, perhaps the most significant voting-rights case in decades. It could federalize local elections in the same way that the Crim Pro revolution of the Warren Court federalized the procedures for every minor bust in every out-of-the-way police precinct in the country.

So who is this "per curiam" guy, and why does he get all the plum assignments? (Whoever it is, Reporter of Decisions Frank Wagner loves him/her because for the second time in recent weeks, he didn't have to do a syllabus.) The last time around, I think it was certainly the Chief, but this time, the writing is a bit too lyrical to be completely his. (E.g. "The want of those rules here has led to unequal evaluation of ballots in various respects.") The last significant paragraph in the opinion is almost certainly the work of the Justice from Sacramento, both because the style is his and because it addresses a particular concern of his, the federal state-balance. We receive a vital clue about authorship in the language used: "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. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront." It very likely isn't 100% AMK, because of the language used on pages 5 and 6 of the per curiam ("deliberately" "insufficiently" "properly" "effectively"). My best guess is probably the Chief (the p.c. uses the same "appropriate[ness]" argument that WHR's concurrence does) with lots of changes submitted by memo from AMK and SOC, or perhaps just SOC.

The Chief concurred, joined by Justices Scalia and Thomas, to say there were EVEN MORE reasons to reverse SCOFLA's decision. Basically, while the per curiam was based solely on the Equal Protection Clause, the concurrence adopted the Bush team's Article II arguments. First, the Chief emphasized that there was a distinct federal interest in state election law when it came to the presidential election. While ordinarily federal courts defer to decision of state courts on issues of state law, this is one of the exceptional cases in which the Constitution imposes a duty or a power on a particular branch (here, the legislature); thus, here the text of the law, and not just its interpretation by state courts, took on independent significance. Among other things, the Florida legislature's apparent wish to obtain the "safe harbor" of §5 couldn't be frustrated by judicial decisions. This is one area where the Constitution requires the Court to undertake "an independent, if still deferential, analysis of state law." Citing some civil-rights cases from the 50s & 60s, the Chief noted that in the past it had not accorded deference to decisions that were clearly at odds with existing state law, and concluded that SCOFLA had "impermissibly distorted" state statutes beyond "what a fair reading required, in violation of Article II." In particular, the concurrence noted (1) SCOFLA's emptying "certification of virtually all legal consequence" by making the post-certification contest de novo; (2) extending the deadline to count ballots before certification again and again; (3) counting as legal votes ballots that were not marked clearly (i.e., the dreaded pregnant chad), although state law doesn't seem to contemplate that; and (4) by failing to defer to the Secretary of State's interpretation on when recounts are necessary. The scope and nature of SCOFLA's remedy jeopardized the legislative wish to take advantage of the §5 safe harbor by ordering recounts of tens of thousands of undervotes 4 days before Dec. 12, although "no one claims that these ballots have not previously been tabulated" [note key distinction between "tabulated" and "counted"; even the well insulated Justices know the common claim they haven't been "counted"]; "no one claims there was any fraud in this election." [On second thought, maybe they don't read the paper.] The legislature's grant of authority to SCOFLA to grant "appropriate" relief must have meant relief that would become final by §5's cutoff, Dec. 12; in light of the inevitable appeals to the Supreme Court (as in SCOTUS, not SCOFLA), the SCOFLA-ordered recount and challenges couldn't possibly have been completed by Dec. 12.

Each of the dissents said the Bush team's arguments were "insubstantial" (with the exception that Souter and Breyer bought the Equal Protection Aqua Fresh argument). Each went point-by-point to argue why the arguments were baseless. So far, nothing out of the ordinary. Each then added the ordinary rhetorical flourishes you would expect in a dissent. However, because most people don't read dissents (or any judicial opinion) closely, I think these dissents will strike most people as very strident.

So the majority did not actually dish on SCOFLA and say they were lawless or partial or anything, just that they had screwed up on the law -- just like they do whenever they overturn a lower-court decision. The concurrence DID say SCOFLA wasn't entitled to deference, but SOC and AMK pointedly did not join that. It's really not that unusual for dissenters to really harsh on lower-court opinions. But to read Justice Stevens' dissent, you'd think the majority said that SCOFLA was a bunch of wrong-headed and corrupt party hacks. Justice Stevens' dissent is getting the most airplay, I suppose because he's the most senior Justice (so yes, it's first) and because it has the best lines, lines which resonate with op-ed pages of the past few weeks. Stevens mocked the majority's concern with the Dec. 12 deadline, noting that in 1960, Hawaii's votes weren't counted until January, because they were brought to the mainland by outrig canoe as the Hawaii 5-0 theme played (I can't vouch for the historical accuracy of that). Stevens used muted rhetoric to show that he was using his status as the Court's elder statesman to act as healer to the nation: "In the interests of finality . . . the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent -- and are therefore legal votes under state law -- but were for some reason rejected by ballot-counting machines." And although the majority of the Court (as opposed to the concurrence) did not second-guess SCOFLA's reading of Florida law, he ended his dissent by saying that Court's tacit endorsement of the Bush team's "lack of confidence in the impartiality and capacity of state judges" "can only lend credence to the most cynical appraisal of the work of judges throughout the land. 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." Stevens was joined by Justices Ginsburg and Breyer, but not Souter.

Souter's dissent was joined by Breyer in full, and by Stevens and Ginsburg except as to his equal protection analysis. Souter went argument-by-argument in a more systematic fashion than Stevens. He agreed with the majority about the fact that there was an equal-protection violation (saying "The differences [in treatment] appear wholly arbitrary"), and even said that it was "sensible" for the Court to address it, but noted in passing that it could have been disposed of on the state level or by Congress.

Justice Ginsburg's dissent was joined by Justice Stevens in full and by Justices Souter and Breyer except as to equal protection. Unlike Justice Stevens, who blamed the Court for the Chief's concurrence, she more accurately targeted the concurrence alone. (People don't usually spend this much time harshing on concurrences, so perhaps it used to be part of the per curiam, supporting the "Chief did it" theory.) She said that while the Chief offered a sensible construction of state law, there was no reason to prefer it to SCOFLA's. She argued that his willingness to reverse in this case on state law was in tension with the Court's reluctance even to interpret Pennsylvania law in last Term's first-case fizzler, Fiore v. White. She mocked the Chief for being an unsteady adherent to federalism, saying that "[w]ere the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court." Finally, she disputed the binding nature of the Dec. 12 deadline, and complained that "the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy of the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States." Good line. She ended her dissent simply, "I dissent." You tell me whether the omission of "respectfully" was -- to use a recently overused word -- pregnant, but her closing was the only one of the four lacking an adverb.

Finally, Justice Breyer dissented, joined by all the rest except Stevens and Ginsburg did not join the equal protection part. He argued that there was still time for a valid recount under uniform standards on remand. Most of his dissent was spent criticizing the concurrence, since he agreed with much of the per curiam. Breyer's is easily the most thorough of the opinions, and is nearly twice as long as the next leading brand. He made an impassioned argument that the Court should have used greater restraint in resolving this dispute, which bore all the quintessential marks of a case calling for restraint. Finally, he bemoaned the Court's lack of unanimity, saying that "in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence in a public treasure. It has been built slowly over many years, some of which were marked by Civil War and the tragedy of segregation . . . [W]e do risk a self-inflicted wound -- a wound that may harm not just the Court, but the Nation. [Good point; so if unanimity is so important for the sake of the capital-N Nation, why did you dissent?]

Never have the Court and its employees so deserved the December-January recess. It sounds like they need to stand in a circle and sing Kum-ba-ya together. They'll get a chance to do so at the Court's holiday party…but something tells me there will be a chill in the air.