Working Paper No. 03-33:
The Unbearable Wrongness Of Bush V. Gore
Date Posted: 2003
Abstract (below) | Full text (most recent) on SSRN
Professor Lund is virtually alone in defending not only the Supreme Court's equal protection rationale in Bush v. Gore, but also the Court's startling decision to shut down the Florida recount process and thereby foreclose any opportunity for the State of Florida to actually implement the equal protection principles the Court purported to be enforcing. Professor Lund even characterizes Bush v. Gore as "simply not a close case." If the case was not close, the reasons are not those Lund so cavalierly assays.
Part I defends my argument that the Court's per curiam opinion cannot be grounded in any previously recognizable form of equal protection doctrine. Professor Lund's argument to the contrary is that Bush v. Gore was but a logical extension of the "one-person, one-vote" jurisprudence illustrated by Reynolds v. Sims. He relies almost exclusively on the statement in Reynolds that the Constitution forbids weighing "votes of citizens differently, by any method or means." Professor Lund (conveniently unwilling to embrace this principle as a proper reading of the Equal Protection Clause) treats this statement as establishing a precedent so sweeping and amorphous that it cannot be taken seriously, particularly in the context of ballot counting. Professor Lund apparently would extrapolate the statement to encompass virtually all disparities, not only between classes of voters, but among methods of recording and tallying votes and interpreting ballots. Far from a "disinterested" analysis, this absurdly literal fidelity to "one-ballot, one-vote" is the essence of jurisprudence by slogan. Any coherent approach to "one-person, one-vote" must incorporate a structural theory of how votes should be aggregated. Nothing in Reynolds or any other case suggests that a state cannot be selective in deciding which types of ballot errors are worth recounting in a particular circumstance, subject only to a requirement of rationality.
Bush v. Gore did not involve a problem of valuing or weighing some votes more than others, much less deliberately packing or diluting groups of voters, but instead involved the obviously distinct problem of differentially treating ballots as evidence of votes. The Florida Supreme Court's remedy did nothing to alter the manner in which legally cast votes were weighed in the overall state scheme to choose presidential electors. At most, the scheme created the possibility that different standards would be used for determining what constituted a legal vote. But the much maligned "intent of the voter" standard on its face treated all voters equally. It was only in the application of that standard that equal protection violations could have arisen - and even those violations were correctable under the supervision of a single, impartial state judge. Thus, even if the Florida Supreme Court's plan for a statewide recounting of ballots to discern voters' intent could be said to have launched a scheme under which the "weight" of some votes cast in Florida would in some sense be less than the "weight" of others, that would not by itself 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.
Strikingly, under the Court's own equal protection theory, the vote count previously certified in Florida - a tally that, because of the Court's decision to stop the recount in its tracks, effectively determined the outcome of a Presidential election - would itself be a manifest denial of equal protection, in light of the many votes that remained uncounted, and the undisputed fact (common to virtually every statewide method of voting and manner of tallying votes) that the voting process and the vote-count itself included a dizzying array of arbitrary and/or easily correctable inequalities. I argue that the Court's failure to grapple with the underlying equal protection issues, or to grasp the breathtaking implications of its equal protection holding (including the inconsistency between that holding and the outcome that it endorsed in Florida itself), evince the almost embarrassing bankruptcy of the rationale that the Court's majority adopted and that Professor Lund defends.
Part II argues that Bush v. Gore presented a question that most likely never should have been decided by a federal court. Properly applied, justiciability is inextricably linked both with the institutional context in which judicial intervention is sought (including the remedial character such intervention would have to take) and with the substantive constitutional principles that undergird the allegedly "political" question at issue. Unless it is demonstrable that the political and administrative process itself is so structured that the political branches cannot be trusted to abide by constitutional norms preventing an impermissible form of exclusion or dilution of an identifiable individual's or group's rights of political participation without adequate opportunity for timely correction within the process itself, the case for judicial intervention that pretermits the political process is extremely weak.
There is thus a strong connection between the veritable culture shock set off by the Supreme Court's intervention in the presidential election of 2000 and the proper characterization of the Court's action as a violation of the implicit "political process" doctrine that has governed our national life without much interruption from the outset. The structure of the Florida Supreme Court's recount order of December 8, including the role it assigned to the state court judge in addressing alleged inequalities, left open numerous avenues for correcting procedural inequities in ballot counting. And the alleged inequities were so complicated and so attenuated that to argue that the U.S. Supreme Court had before it a completed constitutional harm notwithstanding what the Florida courts and legislature, followed by Congress, might have done, seems bizarre.