The New York Review of Books

To the Editors:

I cannot claim to be a disinterested observer of the events Ronald Dworkin comments upon in his essay “A Badly Flawed Election” [NYR, January 11]. I was counsel of record to the Florida Legislature in the two Supreme Court cases spawned by the tabulation of the vote in Florida. In our second brief my Harvard colleague, Einer Elhauge, and I presented arguments that closely paralleled the Court’s opinion as well as the concurring opinion of the Chief Justice. In spite of that involvement—maybe because of it—I readily concede that this was a difficult case with two sides. Quite unjustified, however, is Professor Dworkin’s high dudgeon and barely concealed innuendo that the Court had acted injudiciously out of a partisan zeal to protect its own agenda against future unsympathetic appointments. On the contrary, I see the Court as having reluctantly done the job its commission required of it.

In its first opinion of December 5 the Court reminded the Florida Supreme Court that its work in this matter was not solely a matter of state law (as Professor Dworkin repeatedly suggests) but that it was the Constitution (in Article II, §1, ¶2, dealing with the choice of the President) that committed the matter to the state Legislature and a federal statute, 3 U.S.C.§5, that assumed that disputes regarding presidential electors were to be resolved by rules established prior to the particular election in question. So it was a premise of that first opinion that the faithfulness of the Florida Supreme Court to the directions of the state legislature and to preexisting rules was a question of federal law and thus ultimately a proper subject for review by the Supreme Court of the United States. That opinion was unanimous. I say the Court showed a proper reluctance about becoming involved because it was at pains to achieve unanimity and because having issued its reminder, it remanded the case to the Florida Supreme Court.

The second opinion, which Professor Dworkin writes about, came a week later, when the Florida court, to which the Supreme Court had shown traditional deference, had—so it seemed to many, including three of the seven Justices of the Florida court—refused to take the hint, and come down with a decision that merits at least as much criticism as Professor Dworkin directs at the Supreme Court of the United States. True it is that the second time around the Court showed a good deal less deference to the Florida court, but that is often the case when a lower court appears to the Justices to be taking its direction in less than a wholehearted spirit.¹ Thus Professor Dworkin’s repeated characterization of this being an unprecedented and unwarranted interference in a matter of state law is misleading and incorrect.

Professor Dworkin writes that it is “difficult to find a respectable explanation of why all and only the conservatives voted to end the election in this way,” and, becomingly, that “we should try to resist this unattractive explanation”: that the Court majority was acting only to protect its own radical “conservative” agenda. Professor Dworkin does not try hard enough. Instead he relentlessly casts the disagreement as one between the five “conservative” and the four “liberal” Justices, with only the former moved by partisan motives. Even if the divide were as neat as he says, one wonders why exactly the same charge of partisanship could not be leveled against the four dissenters. But in fact the divide is not at all neat. For instance, on the most bitterly contested issue dividing the Court for several decades now, the right to choose established in Roe v. Wade, two members of the majority are committed to a version of the same position Professor Dworkin espouses and the dissenters favor. Indeed, there are ideas and whole phrases in the O’Connor, Kennedy, Souter joint opinion in the Casey case that might have come straight out of Professor Dworkin’s writings. The same might be said about Justice O’Connor’s opinion in the “right to die” cases. Surely neither she nor Justice Kennedy can fairly be readily relegated to some caricaturial conservative pigeonhole. And for that matter Justices Scalia and Thomas are a good bit more “liberal” (if one must use these degraded and inaccurate labels) than Justices O’Connor and Breyer on a number of issues, such as free speech. Many commentators who share Professor Dworkin’s outrage cite, as if it proved something, Justice Stevens’s dissent saying that the Court’s decision will endanger public respect for the judiciary. But this is just the kind of thing he and Justice Scalia are sometimes inclined to say when they lose (e.g., Scalia in Evans v. Romer, the Colorado anti–gay rights initiative). Vehemence in dissent is traditional, but fouling your own nest always seems desperate.

Dworkin disagrees with the Court’s judgment that the kind of recount ordered by the Florida Supreme Court was a denial of equal protection because it “puts no class of voters, in advance, at either an advantage or disadvantage.” But the Supreme Court has made clear—as recently as last year in a unanimous opinion in a jejune case involving one family’s sewer connection²—that disparate treatment may violate the Constitution’s guarantee of equal protection even if no identifiable class of persons is the target of the intentional disparity. The Florida court had explicitly ordered a procedure to take place which treated persons’ votes in a senselessly variable manner.³ Dworkin argues that in fact there was one, general uniform standard: whether each ballot, taken as a whole, showed a clear intent to vote for one or another of the candidates for president. Discerning intent from a will or contract, a statute, or even the Constitution, taken as a whole, is a familiar and appropriate task for legal interpretation. Like Professor Dworkin, I too am a fan of hermeneutics applied to such texts. Applied by many scores of variously trained, instructed, and supervised ballot counters to punched pieces of cardboard, such a concept is manifestly out of place, to say the least.⁴ In such stylized settings only a stylized system will do, and that system can and therefore should be uniform. But this is, for some of the reasons Dworkin gives, a question with two sides. In the end only two Justices agreed with Dworkin, so this is hardly a cause for fulmination, dire warnings of the sort issued by Justice Stevens, or imputations of dishonestly partisan motives.

Although Dworkin finds the equal protection argument “defensible,” agreeing with Justices Souter and Breyer, he argues that the Court’s decree shutting down the election was not. The Court based its conclusion on what it discerned as the intent of the Florida law on no account to miss the December 12 safe harbor deadline, a deadline that evidently would not allow a second try by the Florida Supreme Court on that very day. This was the least convincing portion of the Court’s opinion but it too does not justify the depth of Dworkin’s or the dissenters’ scorn. They would have had the Court remand the case to the Florida Supreme Court to fashion a remedy that met the equal protection objection. But Dworkin and the two Justices who dissented from the Court’s remedy take it as a given that a recount on those terms would in any event have to have been completed by December 18, the day on which by federal law the electoral votes must be reported. But such a recount could not be completed in six days any more than in twenty-four hours. That is because that recount would go forward under the contest provisions of Florida law, and those envisage not a simple tally, but a full-blown legal process, complete with briefing, oral argument, and a full recourse to appellate process. Such contests in Florida have been known to require sixteen months. So imagine what would have happened if Dworkin’s and Breyer’s solution had been adopted. There would have been further arguments in the Florida Supreme Court on remand, followed by an opinion from that court—which may have occasioned further review in the Supreme Court of the United States. Then the recount would have taken place and there would have to have been still more process about that. If miraculously all this had been compressed into six days that fact itself would have occasioned a complaint to the Supreme Court that the Florida court had once again failed to comply with the preexisting standards of Florida law.⁵ Would such a continuation of the legal proceedings, inevitably leading to an indeterminate outcome, really have been more a satisfactory course? Surely if that was the alternative, the Court did well to shut the thing down then and there.

Finally, I think that the three concurring Justices, whose views Professor Dworkin does not discuss, were on sounder ground than the seven who found an equal protection violation. They argued that the Florida Supreme Court had not just interpreted some ambiguous language in the Florida statutes in a questionable way—a disagreement which perhaps the Supreme Court would have been well advised to let lie—but had turned that scheme completely on its head. Since fidelity to pre-existing Florida law is a requirement of federal law—both statutory and constitutional—such a radical departure called for correction. The argument about Florida law is intricate, but its crux—as Professor Elhauge shows in the portion of our brief for which he was principally responsible—is the Florida Supreme Court’s premise that an interpretive manual recount is always preferable to a mechanical one and that in a close election an interpretive recount must always be had even if there was no evidence of fraud or mechanical breakdown. To argue that Florida law requires such a recount whenever the outcome might be affected (that is, every close election) is to beg the question. Florida law insists that all legally cast ballots be counted, and it was the contention of the Secretary of State that all such votes had been counted, while the famous undercounts with imperfectly perforated chads were by hypothesis not legal votes.

But in the end all this high dudgeon is unjustified for a deeper reason. This election, as any statistician will tell you, was in effect a tie. A difference of 0.5 percent in an election in which a hundred million votes were cast—at various times, under diverse circumstances, by a wide variety of means—exceeds our present capacity for accurate tabulation. The mantra of the Gore people, that we should keep counting until we can be sure that every vote had been registered, would have brought us more and more laborious recounts, with different results from each, but no greater accuracy.⁶ So I agree with Professor Dworkin’s proposals that for the next time we standardize and modernize the machinery, schedule, and procedures of our presidential elections. (Such improved machinery might have seen Richard Nixon and not John F. Kennedy President in 1960, but we rarely hear that the latter’s presidency was illegitimate.) As for this election, what we saw was a range of institutions—from local canvassing boards to the Supreme Court of the United States—struggling with a freakish situation beyond the capacity of any to resolve to everybody’s satisfaction.