Tribe 2002 The Unbearable Wrongness of Bush V. Gore

Response to Lund, Nelson “Equal Protection , My Ass!”? Bush v. Gore and Laurence Tribe’s Hall of Mirrors (PDF) 2003/8

2023-10-18: Tribe, Laurence The Unbearable Wrongness of Bush V. Gore (PDF) 2002

... most defenders of the decision have at least struggled with the difficult questions it poses[:]
- whether the Equal Protection Clause mandates precisely drawn and completely uniform standards for recounting electoral ballots;
- whether Article II imposes substantive constraints on a state court's power to interpret its own state election laws;
- when federal judicial resolution of state ballot-counting disputes intrudes too far into the responsibilities of the coordinate political branches;
- when the interests of finality and stability instead justify such federal judicial intrusion and might even justify abandoning some voters' rights to have their ballots counted ....
In Part I, I defend my belief that the Court's per curiam opinion cannot be grounded in any previously recognized form of the Equal Protection Clause.
In Part II, I argue that Bush v. Gore presented a political question that most likely never should have been decided--and, at a minimum, provided an answer that never should have been given--by a federal court.
I. The Unsurprisingly Shocking Equal Protection Rationale
... that the Florida Supreme Court had been guilty of changing the state legislature's definition of a lawfully cast vote or of the applicable deadlines, perhaps for partisan reasons, after the polls had closed and thus violating due process or Article II of the Constitution--the principal claim that had been used to make a federal case out of it from the outset--had, in the end, proven too weak to persuade more than three of the Court .... [Rehnquist, Scalia, Thomas]
All that remained was the claim, perplexing on the face of it, that equal protection of the laws required giving no protection of the laws to the thousands of still uncounted ballots.
Because ballots that looked the same might get counted differently under the Florida Supreme Court's approach depending on when and where they were counted, much larger differences among precincts using dramatically different ballots or counting methods, and between the ballots that were counted and those that were not, had to be ignored-and that in the name of equal protection of the laws!
A. A "One-Ballot, One-Vote" Doctrine?
After Baker [v. Carr], various subspecies of voting rights challenges would have been entertained, either under the "no-exclusion" rubric of Harper [v. Virginia Bd. of Elections] and its progeny; or under the first-generation "no-dilution" framework of Reynolds v. Sims and its descendants; or under the second-generation "no dilution" rubric elaborated in cases like Thornburg v. Gingles.
In all three categories, the Court's rhetoric and its imagery have gravitated toward notions of individualistic harm; indeed, such notions have been central both to the Court's acceptance of the challenges as justiciable and to the gradual accommodation of conservative commentators to this entire body of jurisprudence.
The relevant test after Davis [v. Bandemer] is thus whether the challenged election practice denies a particular political group "its chance to effectively influence the political process."
Thus, it should have been obvious that merely pointing to hypothetical differences in the "weight" given to the voters of different counties did not describe the sort of deviation that would suffice to invalidate--either conclusively or presumptively--a scheme designed to ensure the legality and completeness of the total vote count.
In that regard, it plainly should have mattered that the manual recounts were neither alleged nor shown to discriminate against any discernable group of voters.
He [Nelson Lund] accuses the Florida Supreme Court of accepting "one litigant's self-serving requests in a particular election ... at a time when any recount could help only that particular candidate.
This formulation is wrong for a number of reasons.
First, it is simply not true that the recount could only have helped Gore. ... the recount might actually have increased the margin of Bush's lead, it could have solidified the legitimacy of his claim to office ....
Second ... Bush refused to request manual recounts, with the result that the only requests before the court were requests to recount the ballots in Gore-leaning counties.
Reynolds v. Sims considered a legislative apportionment scheme with population deviations of up to 41 to 1 in certain districts.
Similarly, Gray v. Sanders,/i> involved a challenge to Georgia's county-unit voting system as a basis for counting votes in the presidential primary.
And in Moore v. Ogilvie the Court reviewed a ballot-access law that required all nominating petitions for presidential electors to obtain their requisite 25,000 signatures from at least 200 qualified voters in at least 50 counties. According to the Court, the law imposed a "rigid, arbitrary formula to sparsely settled counties and populous counties alike."
When one compares the Florida recount scheme with the laws in Reynolds, Gray, and Moore, it becomes clear that the two groups of cases involve dramatically different sorts of injuries.
No individual voter--and no group of voters identifiable ex ante by any characteristic like place of residence, party affiliation, or, to take the worst case scenario, identity of the candidate for whom the voter appears to have intended to cast his or her ballot--could claim to be harmed by a substandardless "intent of the voter" standard.
... there is nothing in Reynolds or any other case preceding or following it to suggest that a state cannot be selective in deciding which types of ballot errors it deems worth recounting, subject only to a requirement of rationality.
Each state delegates to counties and its local officials sub- stantial discretion in the conduct of elections. This delegation creates a virtually unlimited source of equal protection problems under the "broader principle" ['the Constitution forbids the weighting of "votes of citizens differently, by any method or means." '] Professor Lund would extract from Reynolds.
And with respect to the "character" of deviations, the Court has increasingly permitted deviations so long as the challenged practice does not engage in "discriminatory" treatment of any group of voters.
In its obsessive desire to ensure uniform treatment of ballots, the Court lost focus of the fact that the purpose of the Fourteenth Amendment has always been to protect persons.
The second reason Bush v. Gore seems to be such an odd extrapolation from traditional Fourteenth Amendment jurisprudence is that, .... the Court's per curiam opinion ... the Constitution grants the people no fundamental right to vote in a presidential election.
The right the Court protected was therefore a right [of the state legislature] to distribution, in accord with a Court-imposed norm, of a privilege [voting for president] that the state was free to withhold altogether.
B. Of Underlying Inequalities and Inexplicable Remedies (588)
... the Court could have minimized the perception that it was engaging in pure politics had it simply al- lowed the political process to take shape. [see Roudebush v. Hartke (1972)] Recognizing that a contested election certification was but a midpoint in an ongoing electoral process, the Court chose to allow that process to run its course: "A recount is an integral part of the ... electoral process and is within the ambit of the broad powers delegated to the States."
As we shall soon see, the existence of an ongoing political process should have dictated much more than the question of what remedy to impose.
II. Defending the "Spectacularly Indefensible" -- The Political Process Doctrine (592)
In essence, my argument was that the Twelfth Amendment, supported by the 1887 Electoral Count Act, textually committed to Congress the power to resolve electoral disputes in presidential elections ....
In McPherson v. Blacker, for instance, the Supreme Court held justiciable claims relating to the constitutionality of a district-based scheme for choosing presidential electors. Congress was assigned no role by the Constitution in reviewing state legislative exercises of Article II responsibility.
Generally speaking, calling something a political question has served merely as shorthand for saying that the branch initially entrusted with making a decision--or, to put it another way, the institution to which the Constitution has granted the power to resolve such disputes--did so within the outer boundaries of its constitutional authority as policed by the Court.
Simpply put, the political question doctrine is misleadingly named; it really ought to be called the political process doctrine.
In these cases [Baker v. Carr, Anderson v. Celebrezze, Gaffney v. Cummings, Fortson v. Dorsey] two factors were usually present: first, the challenged state actor seems plainly to have violated some aspect of the Constitution; and second, there was no ongoing political process--recognized in the Constitution's institutional design--to review and resolve disputes of the sort presented so as to vindicate the constitutional values at stake. [emphasis added]
When the constitutional violation has been less clear, and especially when there has been a process in place fully capable of resolving the dispute in question and vindicating the right at stake, the political process doctrine has operated to deny, or at least postpone, judicial review.
Unless it is demonstrable that the process itself is structured in such a way that the political branches cannot be trusted to abide by constitutional norms, ... the case for ... halting the ongoing political process ... is pathetically weak in terms of our constitutional tradition.
The Bush v. Gore per curiam opinion's decision to halt the recount and freeze the result as certified by Katherine Harris is defensible only if whatever constitutional injury is said to have been done was complete and incapable of being averted or satisfactorily undone by whatever processes lay ahead.
Nor has anyone suggested any plausible "injury" to any identifiable set of voters in Florida that the recount, with all that lay ahead by way of corrective mechanisms, was bound to inflict and that a halt in the recount would prevent or remedy.
... Florida Supreme Court's recount order ... left open numerous avenues for correcting procedural inequities in ballot counting.
... the Court had no reason to be lieve that the Congress would not act in a constitutional manner to resolve any dispute over what constituted the legitimate slate of Florida's electors had the issue come to the nation's capital.
Souter would have remanded the case to the Florida Supreme Court to adopt uniform standards for counting disputed ballots, finding "no justification for denying the State the opportunity to try to count all disputed ballots now.
Breyer plainly believed that the appropriate remedy was to remand the case to the Florida Supreme Court to develop a "single-uniform substandard.
He [Breyer] noted that the Constitution, federal statutes, and Florida law all combined to "set forth a road map of how to re- solve disputes about electors" that "nowhere provides for involvement by the United States Supreme Court."
... Breyer then used the precise language of Baker v. Carr, arguing that the Twelfth Amendment "commits to Congress the authority and responsibility to count electoral votes."
Conclusion (607)
My journey has led me back to where I first began: Bush v. Gore was wrongly decided.
I am grateful to Professor Lund for making the wrongness of the decision even clearer than it was before he undertook to defend it as clearly right.
... Bush v. Gore--unlike a wrong decision whose eventual overruling one can seek to achieve and can anticipate with a degree of comfort--seems not just wrong, but unbearably so.