Bush v. Gore, the revenge

[Joe]

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Oct. 25 issue - On Dec. 12, 2000, the Supreme Court decided Bush v. Gore, ending the Florida fiasco and guaranteeing George W. Bush's election. Shortly thereafter the conservative National Review, which was pleased by the ruling's consequence but queasy about the reasoning that produced it, issued a warning, the prescience of which might become excruciatingly evident on Wednesday, Nov. 3. Noting that the court's "dubious argument" that standardless, selective hand counts in Florida violated the Constitution's guarantee of "equal protection of the laws," National Review said:

"It is unclear why—with the different vote tabulation systems from county to county, with different levels of accuracy—this line of reasoning wouldn't render Florida's entire electoral system unconstitutional. Or, for that matter, the nation's electoral system. In fact, all of life can be considered a violation of the equal protection clause, which is why the clause has traditionally been the Swiss Army knife of liberal jurisprudence, fit for achieving any result, however arbitrary."

Which is why Jeffrey Rosen's recent essay "Rematch: Bush v. Gore, Round 2" (The New Republic, Oct. 4, 2004) is mandatory reading for both campaigns and citizens who want to brace themselves for the storm that could engulf the nation as soon as the polls close Nov. 2. Then the parties might unleash thousands of lawyers, each clutching a copy of Bush v. Gore, to ferret out "equal protection" violations in every closely contested state.

Consider the use of different voting systems—electronic touchscreens, punch cards, etc.—in different jurisdictions of a particular state. All systems are fallible, and different systems have different error rates. Does that mean that "equal protection" is denied when different systems are used? What if the distribution of the different systems within the state means that errors have a "disparate impact" on minorities?
Consider provisional ballots. Millions might be cast this year. (In 2000, more than 101,000 were cast in Los Angeles County, which has 3 percent of the nation's electorate.) They are cast by people who, for example, say they registered but whose names are not on the voter rolls. Or by people who cannot prove who they are, or where they live, or that they are citizens. Or by people who go to vote in the wrong place.

(Should the right to vote require a smidgen of responsibility? Should the electoral system be twisted in knots, paralyzed and exposed to vast fraud just to accommodate people too clueless to show up at the proper polling place? Never mind.)

Provisional ballots are sequestered and validated after the polls close. How long after? That depends on the sort of scrutiny they require. Or on what scrutiny this or that court might say is permitted. Is there an "equal protection" violation if all of a state's provisional ballots are not judged by a statewide standard? Or even if different states have different standards?

Legions of lawyers are poised to litigate all this and much more. Imagine courts tickling out all the implications of Bush v. Gore until enough conclusions are reached to allocate someone 270 electoral votes in, say, May.

How did we reach this danger? When Al Gore dragged Florida's courts into the election process, the U.S. Supreme Court did not make the prudent decision to refuse to be dragged into what Justice Felix Frankfurter called the "political thicket." If the court had allowed Florida's intrastate power struggle to proceed, here is what probably would have happened:

Florida's runaway Supreme Court would have done what it seemed determined to do: it would have continued to rewrite the state's election laws and vote-counting rules until they produced a Gore victory. Then Florida's Republican-controlled legislature would have done what the U.S. Constitution empowers state legislatures to do: choose electors. (Article II, Section 1: "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors ...") No one can know what then would have happened. Congress, which counts the electoral votes, could have intervened. The Republican-controlled House would have endorsed the Florida Legislature's Bush electors. The 50-50 Senate, with Gore casting the tie-breaking vote, probably would have backed the Gore electors. In this anarchy, the Bush electors certified by Florida's secretary of State probably would have elected him.

And Bush v. Gore would not have been written. But it was, and it is pregnant with much mischief.

How much? Experts—there are few regarding these arcane questions—differ as to who might be inaugurated on Jan. 20. The speaker of the House? The secretary of State? If on that date enough electoral votes are still being disputed because so many popular-vote counts are being litigated, who—the law, says an actual expert, Akhil Reed Amar of Yale Law School, is murky—fills the presidency when the incumbent's term expires? Whoever it is will depart when Bush or Kerry finally gets 270 electoral votes, perhaps in May.