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A Badly Flawed Election

1.

The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by the fiat of the five conservative Supreme Court justices—Chief Justice Rehnquist and Justices Kennedy, O’Connor, Scalia, and Thomas—over the fierce objection of the four more liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The conservatives stopped the democratic process in its tracks, with thousands of votes yet uncounted, first by ordering an unjustified stay of the statewide recount of the Florida vote that was already in progress, and then declaring, in one of the least persuasive Supreme Court opinions that I have ever read, that there was no time left for the recount to continue. It is far from certain that Gore would have been elected if the recounts had been completed; some statisticians believe that Bush would have picked up more additional votes than Gore. But the Court did not allow that process to continue, and its decision ensured both a Bush victory and a continuing cloud of suspicion over that victory.

Though it took six opinions for all the justices to state their views, the argument of the five conservatives who voted to end the election was quite simple. The Florida Supreme Court had ordered a recount of “undervotes” across the state, but instead of adopting detailed rules about how the counters were to decide whether a ballot that the counting machine had declared to have no vote for president was actually a vote for one candidate—rules that might have specified, for example, that if not a single corner of the “chad” of a punch-card ballot had been detached, the ballot could not count as a vote—the Florida court had directed only that counters count a vote if they found, considering the ballot as a whole, a “clear intention” of the voter to vote. The five conservatives noted that this more abstract standard had been applied differently by counters in different counties, and might be applied differently by different counters within a single county, and they therefore held that the use of the standard denied voters the equal protection of the law that the US Constitution’s Fourteenth Amendment requires.

The natural remedy, following such a ruling, would be to remand the case to the Florida court to permit it to substitute a more concrete uniform counting standard. Breyer, in his dissenting opinion, suggested that course. “[The] case should be sent back for recounting all undercounted votes,” he said, “in accordance with a single uniform standard.” But the conservatives declared that since the Florida legislature intended to take advantage of the “safe harbor” provision of federal law, which provides that election results certified by states to Congress by December 12 are immune from congressional reexamination, any further recount the Florida court ordered would have to be completed by that date—which ended two hours after the Supreme Court handed down its judgment. The conservatives had remanded the case to the Florida court, for “proceedings consistent with” their opinion, and then told them that no proceedings could possibly be consistent with their opinion. The election was over, and the conservative candidate had won.

The 5-4 decision would hardly have been surprising, or even disturbing, if the constitutional issues were ones about which conservatives and liberals disagree as a matter of constitutional principle—about the proper balance of authority between the federal and state governments, for example, or the criminal process, or race, or the character and extent of individual rights, such as abortion rights or rights of homosexuals, against state and national authorities. But there were no such constitutional issues in this case: the conservatives’ decision to reverse a state supreme court’s rulings on matters of state law did not reflect any established conservative position on any general constitutional question. On the contrary, conservatives have been at least as zealous as liberals in protecting the right of such courts to interpret state legislation without second-guessing by federal courts, and on the whole less ready than liberals to appeal to the Fourteenth Amendment to reverse state decisions.

It is therefore difficult to find a respectable explanation of why all and only the conservatives voted to end the election in this way, and the troubling question is being asked among scholars and commentators whether the Court’s decision would have been different if it was Bush, not Gore, who needed the recount to win—whether, that is, the decision reflected not ideological division, which is inevitable, but professional self-interest. The five conservatives have made this Supreme Court the most activist Court in history. They aim to transform constitutional law not, as the Warren Court did, to strengthen civil liberties and individual rights, but rather to expand the power of states against Congress, shrink the rights of accused criminals, and enlarge their own powers of judicial intervention.1

For three of them—Rehnquist, Scalia, and Thomas—the agenda presumably includes finally abolishing the abortion rights that were first established in Roe v. Wade over a quarter of a century ago, a decision they have never ceased insisting should be overruled. The prospects of future success for the conservatives’ radical program crucially depend on the Court appointments that the new president will almost certainly make. Those appointments will determine whether the conservatives’ activism will flourish (even adding, perhaps, the two new votes that would be needed to overrule abortion rights so long as O’Connor and Kennedy refuse to take that particular step) or whether it will be checked or reversed. Bush long ago signaled, in naming Scalia his favorite justice, his intention that it flourish.

We should try to resist this unattractive explanation of why the five conservative justices stopped the recount process and declared Bush the winner. It is, after all, inherently implausible that any—let alone all—of them would stain the Court’s reputation for such a sordid reason, and respect for the Court requires that we search for a different and more creditable explanation of their action. Unfortunately, however, the legal case they offered for crucial aspects of their decisions was exceptionally weak. Their first major ruling, on Saturday, December 9 (soon after the recounting began), was to halt the recount even before they heard argument in Bush’s appeal of the Florida Supreme Court decision ordering those recounts. That ruling was in itself lethal for Gore. Even if the Court had ultimately rejected Bush’s appeal, and allowed the recount to resume, it could not possibly have been completed by December 12, the date which the conservatives later declared the final deadline.

Scalia argued that this serious injury to Gore was necessary to prevent irreparable harm to Bush: he said that Bush would be harmed if the recounts continued because if the Court later decided that the recount was illegal, the public’s knowledge of the results would cast a “cloud” over “the legitimacy of his election.” That bizarre claim not only assumes that Bush would have lost in the recount, but also that the public is not to be trusted. Public knowledge that Gore would have won, if the recounts had continued and been accepted, would produce doubt about a Bush election only if the public disagreed with the Court’s judgment that the recount was illegal; and it is constitutionally improper for the Court to keep truthful information from the public just because the information might lead it to conclude that the election was a mistake or that the Court was wrong.2

The conservatives’ second major decision was that the Florida court’s “clear intention of the voter” standard for manual recounts violated the equal protection clause because different counties and counters would interpret that standard differently. Two of the more liberal justices—Breyer and Souter—agreed,3 but the other liberal justices, Ginsburg and Stevens, rejected the argument, and they had the better case. The equal protection clause forbids voting procedures or arrangements that put particular people or groups at an electoral disadvantage. The Court has struck down poll taxes that discriminated against the poor, for example, and, citing a “one-person-one-vote” electoral standard, has prohibited electoral districts of very different size because these give each voter in larger districts less impact on the overall election result than voters in smaller districts have. But a general standard for counting undervotes that may be applied differently in different districts puts no class of voters, in advance, at either an advantage or disadvantage. If a voter’s county uses a more permissive test to determine “clear intent,” then he risks having his ballot counted when he did not intend to vote; if it uses a strict standard, he risks having his ballot ignored when he did intend to vote. One cannot say, in advance, that either a permissive or strict test is more accurate, and therefore cannot say that a system that combines both within a single state puts any identifiable group at an automatic disadvantage.4

As Gore’s counsel, David Boies, pointed out in oral argument, Florida’s use of different voting machinery in different counties is much more arguably a violation of equal protection, because some types of machine are well known to be much less accurate than others. Punch-card ballot readers, which are used in counties with a high minority population such as Miami-Dade, ignore more than three times as many ballots as optical ballot readers do, and therefore give voters in those counties systematically less chance of having their votes counted.

The Court’s equal protection decision is surprising in another way. The one-person-one-vote principle applies not just to presidential elections but to elections for every federal and state office, major or minor, across the country. I do not know how many states use nothing more concrete than a “clear intent of the voter” standard for manual recounts, but several do, and the Supreme Court has now declared that they have all been acting, no doubt for many decades, unconstitutionally. This ruling alone may require substantial changes in the nation’s electoral laws, and the Supreme Court may well regret having made it.

The conservatives’ equal protection claim is defensible, however, and, as I said, two of the more liberal justices also accepted it. But the conservatives’ third major decision, and by far its most important, is not defensible. The most natural remedy for the supposed equal protection violation, as all the dissenters insisted, would be to remand the case to the Florida court so that it could establish uniform recount standards and attempt to complete a recount by December 18, when the Electoral College votes. But the conservatives held that since the Constitution gives the Florida state legislature authority over its own election law, and since that legislature would wish to take advantage of the federal “safe harbor” law that guarantees a state certification of presidential electors immunity from congressional challenge if the certification is made by December 12, any recounts beyond that date, even those necessary to insure that all valid votes were counted, would automatically be unconstitutional.

  1. 1

    For a detailed account of this conservative activism, see Larry Kramer, “No Surprise. It’s an Activist Court,” The New York Times, December 12, 2000.

  2. 2

    Scalia also said that since “it is generally agreed” that further handling of the ballots might degrade them, Bush might suffer irreparable harm if that degradation made a further, more accurate, recount impossible. But there is no evidence (only Republican allegations) that a recounting of ballots by judges is likely to injure those ballots, no request by the Bush team for any further recounting, and no real prospect of the Supreme Court ordering one.

  3. 3

    The New York Times suggested that they agreed in hopes, which failed, of constructing a compromise decision to send the case back to allow the Florida court to set more concrete counting standards. See Linda Greenhouse, “Bush Prevails,” December 13, 2000, p. A1.

  4. 4

    The Florida Supreme Court had adopted the “clear voter intent” standard from the Florida statutes. In his dissenting opinion, Souter said that he could see no rational basis for using such an abstract test for inspecting ballots. But a state might rationally decide that accuracy would be improved overall by using a general standard rather than trying to anticipate in detail all the evidence that a ballot might present: a set of concrete tests might not have allowed, for example, for the Florida voter who wrote “I vote for Al Gore” across his otherwise unmarked and unpunched ballot.

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