Working Paper No. 03-35:
Lost At The Equal Protection Carnival: Nelson Lund's Carnival Of Mirrors
Date Posted: 2003
In his sur-response to my essay "The Unbearable Wrongness of Bush v. Gore," Professor Lund expends an enormous amount of energy on a barrage of technical, literalist defenses of both his own "Carnival of Mirrors" essay and of the Court's per curiam opinion in that case, while failing adequately to engage the substance of my argument with respect to the Supreme Court's perplexing equal protection holding in that case - namely, that the per curiam opinion conspicuously failed to identify any individual voters, or groups of voters, who were treated unequally by the Florida Supreme Court's ballot-counting scheme. Lund continues to place undue, and almost exclusive, reliance on Reynolds v. Sims and its progeny. But he does not dispute my argument that Reynolds cannot reasonably be read to indict the sorts of deviations present in the Florida court's recount order, because otherwise Reynolds would have the practical effect of calling into constitutional question a myriad of election practices throughout the land that States have used, without objection, in virtually every statewide election in memory. If this is the logical implication of Professor Lund's reading of Reynolds - and he has not provided any sustained argument why it is not - then that alone is reason to question whether such a reading of Reynolds (which provides virtually the entirety of Professor Lund's defense of Bush v. Gore) is remotely plausible. It takes little sophistication - only a resistance to sophistry - to recognize how far one must twist equal protection law to make it fit Bush v. Gore's mold.
My principal reply emphasized the Court's inexplicable failure to grasp the sweeping implications of its equal protection holding for the outcome that it effectively mandated in Florida itself. Professor Lund responds that, in fact, there is nothing so inexplicable about the Court's opinion because the remedy in Bush v. Gore did not "foreclose the Florida court from ordering a new recount." Although it is, of course, technically correct that the U.S. Supreme Court did not order the Florida Supreme Court in so many words to toss in the towel, there can be no gainsaying that the wholly theoretical window the Court failed to slam shut was hardly the sort of opening through which anyone would dare to crawl. Moreover, the Court's asserted hard-and-fast December 12 deadline consisted of a palpably disingenuous cobbling together of stray comments in Florida Supreme Court opinions to yield an implausible construction of state law that should have been all the more disfavored because it would and did result in a violation of equal protection under the Court's own theories in Bush v. Gore. The Court could not deny the Florida court's conclusion that hundreds of ballots had been lawfully cast under Florida law yet had not been tallied in the State's certified count. Ignoring these ballots to satisfy what the Court imaginatively viewed as a mandatory safe harbor provision systematically and arbitrarily "diluted" to zero the weight of hundreds of votes for no reason other than the inadequacy of the vote counting machines in their home counties.