Texas’s innovative injury would allow any state to sue any other state, directly in the Supreme Court, for breach of its election laws.
Much has been said about the Supreme Court’s resolution of the 2000 election in Bush v. Gore. As we brace for what some predict will be a more destabilizing crisis, it is prudent to interrogate that episode for teachings that may be gleaned from the first-ever attempt to win the presidency by litigation.
Arguments advanced in Bush v. Gore by Democrats were not only unconvincing but dangerously intrusive on the sanctity of the electoral process. That said, Republicans’ constitutional advocacy never found its bearings until the eleventh hour and fifty-ninth minute of the case. The situation may have been salvaged in the end only through a prescient intervention—made separate from, perhaps unbeknownst to, lawyers formally representing George W. Bush.
Most worrying, the fact that Bush v. Gore was litigated at all betrays endemic constitutional instability. Outbreaks of such instability will recur, inevitably, until that happy hour when our legal profession coalesces around shared, politically neutral jurisprudential understandings.
The Electoral Background
After votes were counted on Election Day 2000 and the day after, it appeared Texas Governor George W. Bush had defeated Vice President Albert Gore by razor-thin margins in Florida and, by virtue of Florida’s electoral votes, the Electoral College.
Governor Bush’s initial Florida margin was 1,784 votes out of more than 5.8 million votes cast. This margin was reduced somewhat but reconfirmed after a machine recounting of all Florida ballots and the inclusion of absentee ballots.
Not accepting the apparent outcome, the Florida Democratic Party and Vice President Gore sued in state court seeking to extend and perfect the tabulation of the vote. They sought to authorize, and judicially compel as necessary, county-level manual re-recounts in those four of Florida’s ten most populous counties that gave the biggest share of their vote to Vice President Gore.
The relevant election statutes, which made little if any distinction between voting for presidential electors and for state and local officeholders, provided for two phases of county-level re-recounting. One phase was aimed at detecting, the other at correcting, errors in machine tabulations.
The time available for double-checking a presidential outcome was constrained by an unforgiving schedule. Unlike other Florida elections, voting for the state’s presidential electors formed part of a nation-wide contest. Florida’s timetable had to jibe with the December 18, 2000 meeting of the Electoral College and a December 12 federal deadline for resolving election controversies.
Seeking to reverse a hair’s-breadth loss, Democratic lawyers sued for manual recounts in populous, heavily Democratic counties. Crucially, the Democrats offered no reason to question the accuracy of those counties’ automated tabulations. According to one federal court sympathetic to their case, the Democrats’ “stated reasons for the requests” were simply “the closeness of the statewide race and a concern that the vote totals might not reflect the true will of Florida voters.”
As their case progressed, Democratic lawyers had to sharpen their recount justification. They landed on a contention that punch-card voting, used in connection with 60 percent of Floridians’ votes, lacked reliability because votes might be rejected due to voters improperly deploying the machine stylus and failing to perforate their punch-cards all the way through. On this view, an invasive rascal—the “hanging or dimpled chad”—had infected the Florida outcome.
Democratic lawyers eventually focused on alleged problems in Florida’s three largest counties—Miami-Dade, Broward, Palm Beach—all of which used punch-card voting. Those counties collectively voted for Gore by a 365,000-vote margin and 61 percent share. According to Democrats, manually recounting all or even some of these counties’ votes represented “a vast improvement over the outright disenfranchisement that results from machine undercounts.”
The Argument Evolves
The Democrats’ essential recount justification—punch-card voting was per se defective—carried them places they did not want to go.
Twenty-four of Florida’s 67 counties used punch-card voting. Those 24 accounted for 3.4 million votes. The implication of the Democrats’ reasoning was that 3.4 million mini-adjudications would have to be performed, checked, litigated, and tabulated in a matter of weeks.
Attempting to address this problem, the Florida Supreme Court retailored the Democrats’ recount request to cover not three or four counties but all 67, while simultaneously limiting recounting to just “undervotes”—ballots on which a vote was recorded for some down-ballot candidate but not for a presidential candidate.
According to this plan, recounting would include 60,000 or so ballots disregarded because machine tabulations recorded zero presidential votes (“undervotes”). But it would exclude 110,000 or so ballots disregarded because machines recorded more than one presidential vote (“overvotes”).
The Supreme Court’s definitive Bush v. Gore ruling issued on December 12, 2000, the final day of the election-controversy period established by federal statute. The decision resolved the controversy in favor of George W. Bush.
The Court’s opinion consisted of substantive analysis invalidating the Florida Supreme Court’s recount plan, plus an announcement of remedial implications from the substantive ruling.
According to the Court’s constitutional analysis, the Florida Supreme Court improperly accepted county-level recounts without assurances that “the recounts [would] be complete.” In addition, the lower court had failed to justify excluding from its recount an estimated 110,000 “overvotes”— exemplifying “concerns” with “remedial processes [then] under way.”
Most importantly, the Florida Supreme Court overlooked that “[w]hen a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” According to the United States Supreme Court, it was “obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work,” especially as Florida’s automatic tabulation software was not designed to separate out undervotes or overvotes.
Turning to remedy, the Court ordered a halt to the recount. The Court noted that the Supreme Court of Florida had indicated that Florida’s election statutes should be read to provide that “any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12,” the date of the Supreme Court’s opinion. It was “evident,” said the Court, “that any recount seeking to meet the December 12 date [would] be unconstitutional.”
A Fundamental Right
The constitutional premise for the Supreme Court ruling was the fundamental character of the right to vote and failure of proposed Florida “recount mechanisms” to “satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right.”
As a matter of constitutional text, “right to vote” or “right of citizens . . . to vote” is mentioned in haec verba five times and referred to implicitly in dozens of constitutional allusions to “elections,” “electors,” acts of electing, and the like. Further, the right to vote, more so than any other individual right, is a structural sine qua non for republican government. Impairment of the right to vote necessarily compromises the republican character of a government.
Omitted from the United States Supreme Court’s hurried composition was a second prong of constitutional analysis potentially implicated by the Florida recount order: voters’ freedom-of-speech right not to take a stand on who should be President.
Consider this hypothetical: Among Florida voters, precisely one third cast votes for candidate Gore, another third for candidate Bush, and the remaining third fail to vote for any presidential candidate, while validly marking ballots in non-presidential contests. Could anyone doubt the people had spoken—loudly—voicing dissatisfaction with both candidates for President? Now suppose, after all votes are cast, a court orders tabulators to strictly scrutinize some but not all presidential votes. Specifically, the court orders scrutiny of only the one-third of the vote for candidate Gore in order to ensure that each Gore vote truly reflects the voter’s intention; or alternatively only each vote for candidate Bush; or else only each none-of-the-above presidential “vote.” Does pointing such a spotlight become any less or more constitutional depending on which slice of the electorate is scrutinized?
According to one United States Supreme Court brief, Florida violated “basic First Amendment rights,” just as in our hypothetical, “by singling out for heightened scrutiny the votes of citizens who chose not to vote for any candidate.” On this view, the mandated recount was unconstitutional because “the court-ordered effort focuse[d] only on a highly selective subset of votes—votes by voters who chose not to disclose their preferred candidate for President.”
An Impregnable Position?
Judged according to congruence with the case’s outcome, the official brief of George W. Bush was third most persuasive among the submissions supporting his candidacy. Second most persuasive was an amicus brief, signed by Attorney General William Pryor, from the State of Alabama. Most persuasive was the brief by a group of intervenor-voters, who led with the winning argument and asserted the constitutional infirmity of recounting only the “undervote.”
C. Boyden Gray and Elise Passamani have elsewhere told the story of these intervenors. It was these litigants who pressed equal-protection arguments from the beginning and maintained them, as their primary contention, to the end. It was these litigants who pressed constitutional objections to heightened scrutiny of “undervotes.” It was these litigants’ bold request to expand—not terminate—the Florida recount that may have proved decisive in spurring Florida’s Supreme Court to abandon adherence to any Democratic recount scheme or statutory foothold, set sail on uncharted waters of a bespoke tabulation process, and open the door to the United States Supreme Court’s ruling. In the end, advocacy by these intervenors and a superbly skilled Bush team dovetailed to end the recount.
Although some Gore supporters have criticized lawyers on their side, the Republican coalition had answers for every issue that might conceivably have been presented in the effort to flip Florida votes, the Florida result, and the Electoral College.
The Republican coalition recognized as early as the weekend of November 18 that it was not possible for Democrats to define a constitutionally permissible recount. The short recount season meant Democrats had to distinguish among the nearly six million ballots cast for President. They needed to delineate some boundary within the electorate—dividing ballots that would and would not be recounted—and justify that boundary’s position. Refusing to draw any distinctions at all would produce a massive, unmanageable effort.
Democrats initially sought county-level recounts without justification beyond the fact that they were properly requested and contemplated by law. But as even the Florida Supreme Court recognized, elections “should be determined by a careful examination of the votes of Florida’s citizens and not by strategies extraneous to the voting process,” such as a candidate’s more or less skillful use of geography as a proxy for political affiliation.
The next proposed boundary, drawn by the Florida Supreme Court itself, contemplated recounts in all 67 counties, but limited them to some 60,000 “undervotes.” Here, the flaw involved the distinction between undervotes and overvotes, plus the systematic disadvantaging of voters who affirmatively chose not to voice a presidential preference.
Viewed in retrospect, Bush v. Gore appears impregnable. Democrats needed a distinction, and a reason, and a plan for a short litigation season that, quite simply, was not to be found. A Democratic victory would have taken the election from the hands of the voters and put it into the hands of judges.
Many Democrats see things differently. Some shower Bush v. Gore with invective, as did Professor Alan Dershowitz in Supreme Injustice: How the High Court Hijacked Election 2000.
Professor Dershowitz has since been answered by Professors Nelson Lund and Ronald Rotunda and, less pointedly, by Judge Richard Posner. In one book, Judge Posner declares that absent Supreme Court intervention, “the 2000 Presidential election deadlock” might well have dragged “on into and maybe even after January 2001.” Arrestingly, though, Judge Posner also declares that Bush v. Gore adopted “a ground (the Equal Protection Clause of the Fourteenth Amendment) that is neither persuasive in itself nor consistent with the judicial philosophy of the conservative Justices.”
But, as we have seen, the Supreme Court’s equal-protection argument is to all appearances unanswerable. Indeed, the Justice most closely identified with Judge Posner’s “judicial pragmatism”—Justice Breyer—agreed that the Florida Supreme Court violated the Equal Protection Clause. To be sure, Justice Breyer dissented in Bush v. Gore on grounds that there was still time enough to complete a recount. But Justice Breyer’s dissent fails to address the potential infirmity of singling out ballots cast by voters who declined to express a presidential preference, or the grave risks to the nation spelled out by Judge Posner.
How do excellent lawyers, like Professor Dershowitz, and jurists, like Judge Posner, underrate the persuasiveness of the winning Bush v. Gore arguments?
Part of the explanation, surely, involves miscalculation by the official Bush legal team. That excellent team filed what may be the finest brief ever crafted on a single day’s notice. But that same team gave primary emphasis to unsuccessful arguments. Their lead contention, focusing on the Florida court’s decidedly far-fetched interpretation of Florida statutes, garnered three votes, as compared to the seven justices who found an equal-protection violation.
To see this miscalculation in relief, consider the official Bush response to an open-ended first question at argument:
QUESTION: Can you begin by telling us our federal jurisdiction, where is the federal question here?
MR. OLSON: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, section 1 of the Constitution, and it was conducting itself in violation of section 5 of Title III of federal law.
No mention of equal protection. No mention of due process. No mention of a constitutional freedom not to disclose a presidential preference.
To be sure, you eventually find arguments that won the day in Governor Bush’s written submission—beginning on page 40. And you find them forcefully pronounced from the podium as General Olson, deftly changing horses, offers rebuttal. Still, Democrats might be forgiven some soreness over losing the presidency on legal grounds that Republicans appeared to discount.
Not a Fundamental Principle?
Consider a final hypothetical: Florida enacts a statute declaring, “In any election for presidential electors in this State, an initial machine tabulation shall be performed as provided by law, but, in the event a losing candidate is unprepared to concede defeat based on such tabulation, the Florida courts are hereby granted jurisdiction, upon request, to determine the authentic message spoken by the electorate through adjudicating ‘the intent of the voter’ by whatever means, employing whatever officials, establishing whatever timetable, and involving whatever ballots the courts deem appropriate.” This is essentially the reading of actual law proffered by the Florida Supreme Court. What’s wrong with this picture?
What’s wrong is that, even if done in conformity with written law, designating supreme judicial arbiters to apply gestalt standards to divine the popular will and decide electoral outcomes undermines each citizen’s right to vote. The intervenor-voters in Bush v. Gore declared that unless votes are “counted on an equal basis,” each voter’s “fundamental right to vote will be diluted or debased.”
While agreeing that Florida’s recount violated equal protection, Justice Breyer thought Florida’s courts could be trusted to manage a week-long recount starting the day of the Supreme Court’s decision. Remarkably, part of the reason Justice Breyer dissented was a view that “the Court [was] not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty.” But the right to vote is the Constitution’s most textually pervasive, structurally essential individual right. How could a justice overlook that this right is indeed the most “fundamental constitutional principle” of all?
For lawyers involved in the events, as some of us were, the culmination of Bush v. Gore was magnificent to behold. The United States Supreme Court, over a crowded weekend, synthesized litigants’ positions, unmasked fallacious arguments, and guided the nation to the only outcome that could withstand the test of time and emerge looking just and fair.
Nonetheless, as Professor Michael Greve is wont to remind us, not all constitutional stories will have happy endings. We as a society can hardly entrust the outcome of presidential elections to the comparative skills of rival lawyers, even if it’s only once every twenty years. We can hardly endure judges sometimes overlooking the Constitution’s most textually pervasive, structurally essential individual right. We can hardly withstand the passions unleashed by nation-changing litigation that even knowledgeable observers, to say nothing of the person in the street, have difficulty comprehending.
We as a nation have been winnowing, perfecting, and turbocharging received jurisprudential understandings through litigation, and so far the Constitution has held its own—just barely. But as stakes are raised ever higher, we risk losing our form of government in a splendidly instructive lawyers’ game driven by raw politics. The lawyers poised to repel the legal assaults reportedly planned for today will be imperfect, as were their predecessors twenty years ago. They would do well to learn at least one lesson from Bush v. Gore: when democratic processes hang in the balance, standing up for the integrity of vote tabulations and the most fundamental of constitutional rights is not a bad position to take.
Editor’s Note: The author assisted with the arguments presented by the intervenor-voters in Bush v. Gore.