balkin - bush v gore

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Bush v. Gore and the Boundary between Law and PoliticsAuthor(s): Jack M. BalkinSource: The Yale Law Journal, Vol. 110, No. 8 (Jun., 2001), pp. 1407-1458Published by: The Yale Law Journal Company, Inc.Stable URL: http://www.jstor.org/stable/797581 .

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Essay

Bush v. Gore and the BoundaryBetween Law and PoliticsJack M. Balkin'

Shortly after the SupremeCourt's 5-4 decision in Bush v. Gore,1onemember of the majority,Associate Justice ClarenceThomas, addressed agroup of students in the Washington, D.C., area. He told them that hebelieved that the work of the Court was not in any way influenced bypolitics or partisanconsiderations.2This speech was widely reported n thepress. Afterwards the question on many legal scholars' minds was notwhetherJustice Thomas had in fact made these statements. The questionwas whether he also told the studentsthat he believed in SantaClaus, theEasterBunny,andthe Tooth Fairy.It is no secret that the Supreme Court's decision in Bush v. Gore hasshakenthe faith of many legal academicsin the Supreme Courtand in thesystem of judicial review.3It is worth consideringwhy this should be so.

t KnightProfessorof Constitutional awand theFirstAmendment,Yale Law School.Mythanks o BruceAckerman,AkhilAmar, MichaelKlarman,SanfordLevinson,RichardPosner,Jed Rubenfeld,Reva Siegel, andMarkTushnet or their commentson previousdrafts,andtoRichardDanielAlbert or hisresearch ssistance.1. 121S. Ct.525 (2000).2. Thomaswas quotedas saying,"Ihave yet to hearany discussion, n nineyears,of partisanpolitics"among he Justices."Iplead withyou that,whatever oudo, don'ttryto applythe rulesof the political world to this institution;hey do not apply."In fact, he claimed that"[t]he astpoliticalact we engage n is confirmation." indaGreenhouse,AnotherKindof BitterSplit, N.Y.TIMES, ec. 14,2000, atAl. Shortly hereafter,ChiefJusticeWilliamH.Rehnquistwas askedbya reporter f he thoughtJustice Thomas's remarksabout nonpartisanshipwere especiallyappropriaten light of therecentcase. He replied,"Absolutely."Neil A. Lewis,JusticeThomasSpeaks Out on a Timely Topic, Several of Them, in Fact, N.Y. TIMES,Dec. 14, 2000, atA23.3. See, e.g., Ledyard King, Regular People, WeightyDecision Put High Court in New Light,GANNErrNEWS ERVICE,ec. 14, 2000 (quotingMichaelGerhardt s stating hat"thecourthastransformedtselfinto a political nstitution.... [Iltis going to be verydifficult oranyone o lookfor any neutralprincipleto defend in this kind of outcome");JeffreyRosen,Disgrace, NEW1407


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1408 The Yale Law Journal [Vol. 110: 1407

Legal academics rationalizebadjudicial decisions all the time; that is partof theirjob description.Moreover,the fact that a few judges occasionallymake mistakes in legal reasoning, even very egregious mistakes, shouldcome as no surprise,nor shouldit cause one to lose faith in the rule of law,the U.S. SupremeCourt,or in the system of judicial review. Likewise, thefact that a few judges occasionallydecide cases becausethey secretlyfavorone partyover anothershould also come as no surprise;nor shouldisolatedexamples of judicial corruption ause one to lose faithin a largerprocessoflegal decisionmaking.The problem with Bush v. Gore, I suspect, was thecase was too salient an example of judicial misbehavior for many legalacademics to swallow. It was no isolated fender bender in which a localjudge helped out the son of a former law partner.Rather,the case decidedthe outcome of a presidentialelection and may well have determinedwhowould sit on the SupremeCourtandthe lower federalcourts for decadestocome. Moreover, unlike the judge deciding the case of a fenderbender insome obscure venue, the Court could not have failed to recognize that alleyes were upon it. That the conservative Justices acted as they didsuggested that their partisanshipwas so thorough and pervasive that itblindedthem to their own biases. It seemed as if they had lost all sense ofperspective.In addition,Bush v. Gore was troublingbecause it suggested that theCourt was motivatedby a particularkind of partisanship,one much morenarrow than the promotion of broad political principles through thedevelopment of constitutional doctrine. The distinction is between the"high" politics of political principle and the "low" politics of partisanadvantage.'The samefive conservativeJustices who formed the majority nBush v. Gorehadbeen engaged, for over a decade, in a veritablerevolutionin constitutionaldoctrinesconcerning civil rights and federalism.5 n thoseREPUBLIC, ec. 25, 2000, at 18(arguing hat heCourthas"madet impossible orcitizensof theUnitedStatesto sustainany kind of faith in the rule of law as somethingarger hanthe self-interested oliticalpreferences f JusticesWilliamRehnquist,AntoninScalia,ClarenceThomas,AnthonyKennedy,andSandraDay O'Connor");DavidG. Savage& HenryWeinstein,SupremeCourtRuling:Rightor Wrong,L.A.TIMES, ec. 21, 2000, at A24 (quotingAkhilReedAmarasstating hat"[m]anyof us thought hatcourts do not act in an openlypolitical fashion.So thisdecisioncomes as a startling ventthathasshakenconstitutionalaith.... I haveless respect orthe court hanbefore").4. I amindebtedo SanfordLevinson or thispoint, as for so muchelse overthe years.SeeSanfordLevinson,Return f LegalRealism,NATION,an.8, 2001, at 8.5. E.g., Bd. of Trs.of the Univ. of Ala. v. Garrett,121 S. Ct. 955 (2001);UnitedStates v.Morrison,529 U.S. 598 (2000); Kimel v. Fla. Bd. of Regents,528 U.S. 62 (2000); Alden v.Maine,527 U.S. 706 (1999);Fla.PrepaidPostsecondary duc.ExpenseBd. v. Coll. Sav. Bank,527 U.S. 627 (1999);Printzv. UnitedStates,521 U.S. 898 (1997);SeminoleTribev. Florida,517U.S. 44 (1996); UnitedStatesv. Lopez, 514 U.S. 549 (1995); New Yorkv. UnitedStates, 505U.S. 144(1992) (6-3 decision);Gregoryv. Ashcroft,501 U.S. 452 (1991). SinceJusticeThomasreplacedJusticeMarshall n 1991,cementinga solid five-person onservativemajority,he samefiveJusticeshavealsocreatednewdoctrines n votingrights aw,see, e.g., Millerv. Johnson,515U.S. 900 (1995); Shaw v. Reno,509 U.S. 630 (1993),andconfirmedhatrace-based ffirmative


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2001] Bush v. Gore 1409

decisions, the five conservativeshad been promotinga relativelyconsistentset of ideological positions like colorblindness, respect for state autonomyfrom federal interference,and protectionof state governmentalprocessesfrom federalsupervision.But the decision in Bush v. Gore did not seem tofurtherthose values, at least not directly. Rather, the five conservativesseemed to adoptwhatever egal argumentswould further he election of theRepublican candidate, George W. Bush. This is the "low" politics ofpartisanpolitical advantage.Although few legal academics these days areshocked to learn that Justices' decisions are "political" in the sense thatthey promote "high politics" larger political principles and ideologicalgoals-they were quite disturbedby the possibility thatJustices would usethe power of judicial review in so prominenta case to promotethe interestsof a particular oliticalpartyand installits candidates n power.Indeed, the appearance, f not the reality,of this kind of partisanshipnBush v. Gore casts an unsavory light on the constitutionalrevolution of thelast decade. It was widely speculated before and after the election thatseveral of the Justices might retire within the next few years. Byintervening n the election, the five conservatives installed a Presidentwhowould appointtheircolleagues and successors and would stock the federaljudiciary with like-minded conservatives. Bush v. Gore was troublingbecause the five conservativesappeared o use the powerof judicial reviewto securecontrolof anotherbranchof government hatwould, in turn,helpkeep theirconstitutionalrevolutiongoing. It is one thing to entrenchone'sconstitutionalprinciplesthrougha series of precedents.It is quiteanother oentrenchone's ideological allies by directing the outcome of a presidentialelection.

Because law professors are perhaps as committed to the legitimacy ofthe courts and the legal system as anyone else, Bush v. Gore will requirethem to reduce cognitive dissonance in manifold ways. Many of theseforms of dissonance reductionhave already begun. In this Essay, I discussfive features of the opinion. In Part I, I discuss the constitutional ssues inBush v. Gore andexplain why so manypeople thoughtthe Court'sopinionwas unpersuasive.In PartII, I consider the Court's institutionalrole andwhether ts choice to intervene n the election dispute was justified. PartIIIdiscusses the jurisprudential implications of Bush v. Gore-and inparticularts relationship o two very well-known theoriesof jurisprudence,AmericanLegal Realism and CriticalLegal Studies. Part IV considerstheplace of Bush v. Gore in the "legal canon" how the case will beunderstood, taught, and remembered. Finally, Part V offers a fewsuggestions about what the case means for the Court's legitimacy, both in

action will be stronglydisfavoredwhetherpracticedby the federalgovernment r by the states,see AdarandConstructors. Pena,515 U.S. 200 (1995).


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the short term and in the long run. It also argues that,because of importantstructural eatures of the AmericanConstitution,partypolitics providesthebest remedyfor the Court's actions.I. THE LEGAL ARGUMENTSIN BUSH V. GORE

The SupremeCourtintervened n the 2000 election not once but threetimes. Only the last two of these interventionsare called Bush v. Gore. Thefirstopinion,Bush v. Palm Beach CountyCanvassingBoard,6 ollowed theFlorida Supreme Court's November 21 decision to extend the time forballot certificationpast the date set by Florida statute.7The SupremeCourtgrantedcertiorari, and heard the case on December 1. Shortly after theoral argumentbegan, the Court discovered that it had misplayed its hand.The Justices apparentlythought that, by intervening in a dispute overcertification, hey could lend their enormousprestigeto settlingthe nation'selection crisis once and for all. By the time oralargumentsbegan, however,they had discovered two embarrassingfacts. First, the certification hadalreadyoccurred.Nothing they could do in the case before them wouldchange the outcome of the election contest that had begun in Floridaafterthey grantedan appeal.Second, they were badly divided along ideologicallines, and anydecision on the meritsmight undermine heirown legitimacy.In importantdecisions like Brown v. Board of Education8and the Nixontapes case, United States v. Nixon,9 the Court has chosen to speakunanimously n order to enhance its authorityand to avoid the appearancethat such momentousdecisions are motivated by partisanpolitics.10So theJusticeseffectively punted,unanimouslyvoting to send the case backto theFlorida Supreme Court with instructionson how to rewrite its opinion toavoidcreatinga federalquestion.

6. 121 S. Ct. 471 (2000).7. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (Fla. 2000).8. 347 U.S. 483 (1954).9. 418 U.S. 683 (1974).10. In United States v. Nixon, all the Justices joined in Chief Justice Burger's majorityopinion except then-Justice Rehnquist, who had been a member of the Nixon Justice Departmentand therefore did not participate. In Brown v. Board of Education, Chief Justice Warrenworked toavoid even a concurrence by Justices Jackson or Frankfurter.RICHARD KLUGER, SIMPLE JUSTICE:THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR

EQUALITY 683 (1975); Jack M. Balkin, Brown v. Board of Education: A Critical Introduction, inWHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION'S ToP LEGALEXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION (Jack M. Balkin ed.,forthcoming 2001) (manuscript at 35-41, on file with author) [hereinafterWHAT BROWN]; DennisJ. Hutchinson, Unanimityand Desegregation: Decisionmaking in the Supreme Court, 1948-1958,68 GEO.L.J. 1, 56 (1979).


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2001] Bush v. Gore 1411

Then on Friday, December 8, the Florida Supreme Court ordered astatewide recount of ballots.1"But instead of the unanimousruling it hadoffered a few weeks before, it split 4-3. The next day, the U.S. SupremeCourt took the case a second time, again using its discretionarypower ofcertiorari.It granted a temporarystay of all recounts in Florida.12TheDecember 9 per curiamorder in Bush v. Gore was accompanied by twoopinions: one by Justice Scalia arguing in supportof the stay, and onewritten by Justice Stevens and joined by the other three liberal Justicesdissenting from the stay. Grounds for grantingsuch a stay require bothprobablesuccess on the merits and a showing of irreparable arm f the stayis not granted.Granting the stay showed that the five most conservativeJustices were inclined to rulein Bush's favorwithoutfurtherargument.Buthow could Bush have been irreparablyharmed by letting the recountscontinue?One would think thatthe irreparable armwould be to Gore, whowould not be able to get a recount finished in time. (Rememberthat at thepoint the stay went into effect, Gore was less than two hundred votesbehind andthere was every possibility thatif the recount hadcontinued forseveral more hours Gore would have pushed ahead.)'3Justice Scalia'sopinion arguedthat "[t]hecounting of votes that are of questionable egalitydoes in my view threaten rreparableharmto petitioner[George W. Bush],and to the country, by casting a cloud upon what he claims to be thelegitimacy of his election."14 utanotherway, the threat o the legitimacy ofBush's presidency was real and palpable,while the harm to Gore's chancesof proving that he had actually won more votes in Florida was lessimportant.This view makesperfect sense if the Court had already made upits mindthatBush would win the case andbecome president.15 y now the

11. Gorev. Harris, 72 So. 2d 1243(Fla.2000). Morecorrectly, he courtordered statewiderecountof so-called undervotes, n which machinecounts had not detectedany choice forPresident.The courtdid not ordera recountof so-calledovervotes, n whicha vote for two ormore candidateshad been detectedby the machines.There is some evidence that includingovervoteswouldactuallyhavebenefitedGore.DavidDamronet al., Gore WouldHave GainedVotes in GOP Stronghold: Overvotes Counted Elsewhere, ORLANDO ENTINEL,Dec. 19,2000, atAl; Joel Engelhardt & Scott McCabe, Election 2000: Over-Votes Cost Gore the Election in FL,PALMBEACHPOST,Mar. 10,2001,at IA.12. Bush v. Gore(BushI), 121 S. Ct.512 (2000).13. See, e.g., CharlesM. Madigan& JamesWarren,U.S. High Court Halts Recount, CHI.TRIB.,Dec. 10,2000, atCI (noting hatatthetimethestaywas grantedBush'sleadwasreducedto 154 votes and thatGoremightalso havepicked up an additional58 votes);KevinSack,AtCenter Stage: Appellate Judges Permit Recounts, Then U.S. Justices Steal the Show, N.Y. TIMES,Dec. 10,2000, at Al (stating hatBushwas aheadby only 154votes).Bush'slawyersarguedhatthefigurewascloser to 193. MichaelKranish&JohanAloysiusFarrell,OnAgain,OffAgainU.S.Supreme CourtHalts Florida's Manual Recounts, PLAINDEALER,Dec. 10,2000,atAl.14. 121S. Ct.at 512 (Scalia,J.,concurring).15. Scalia's otherargument or the stay was that"permittinghe countto proceedon thaterroneousbasis will preventan accurate ecount rombeingconductedon a properbasis later,since it is generallyagreed hateachmanual ecountproducesa degradation f theballots,whichrenders subsequentecountnaccurate."d.Therearetwoproblemswiththisargument. irst, tis notgenerally greed hateachmanual ecountproducesdegradation f theballots hatrenders


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ideological fissures that the high court had bravelytried to paperover hadbecome starklyapparent.The Court's third and final intervention occurred on December 12,when it issued a per curiam opinion, also titled Bush v. Gore.16 The percuriam opinion was not signed, but it is generally thought to be primarilythe workof Justice Kennedy.'7 t was joined by Chief JusticeRehnquistandJustices O'Connor, Scalia, and Thomas. It held that the Florida SupremeCourt's December 8 decision ordering a statewide recount violated theEqual Protection Clause of the Fourteenth Amendment and ordered therecounts to cease. It then remanded he case to the FloridaSupreme Courtfor proceedingsnot inconsistent with the opinion. Since the U.S. SupremeCourt held that the Florida Supreme Court could not begin the recountsagain, there was literally nothing left for that court to do but dismiss thecase.'8 Chief Justice Rehnquist wrote a concurring opinion joined byJustices Scalia and Thomas. It argued that the Florida Supreme Court'sDecember 8 decision also violated Article LI, Section 1, Clause 2 of theU.S. Constitution, which gave the Florida legislature complete (or"plenary")power to decide the terms under which its electors would bechosen."9Justices Souter and Breyer agreed that there was an equal protectionviolation but dissented from the refusal to remand for a recount. Theyargued that if there was a constitutional problem it should be fixed.20Finally, Justices Stevens and Ginsburgarguedthat no federal law had beenviolated and would have upheld the decision of the Florida SupremeCourt.2'

subsequentrecountinaccurate;n fact, there was no evidence before the Court that suchdegradationwas a genuine and seriousproblem.Nor was there a dangerof misplacingballots:The ballots were in safekeepingn the handsof thejudiciary.Second,the argument s in sometension with the holdingof probable uccesson the merits.Bush was arguing hatthe recountsshould be stoppedentirely; he very existenceof the five-personmajority upportinghe staystrongly ignaled hat hepurportedangerof degradationf ballotswaswholly rrelevantf Bushprevailed. f the Courtadopted he Article II, Section 1 theory,the recountswouldcease. If itadopted heequalprotectionheorywitha December12 safe harbor eadline, herecountswouldalso cease.Thus, hequestionof possibleballotdegradation ould ariseonly if the Courtadoptedan equalprotectionheory,didnotrecognizeDecember12 as a firmdeadline,and remanded othe FloridaSupremeCourtfor recountsbeforeDecember18-that is, the positiontaken by thedissentingJustices.This wouldhardlybe a victoryfor Bush. Indeed, t would be a victory forGore.Thus,Scalia'ssecond ustification or thestay ooks like windowdressing.16. Bushv. Gore BushH1),121 S. Ct. 525 (2000).17. Joan Biskupic, Election Still Splits Court: Friction over Justices' Ruling on Ballot Countin Florida Continues To Cause Hard Feelings, Draw Angry Letters, Even Spark Talk of at LeastOne ImminentRetirement at High Court, USA TODAY,Jan.22, 2001, at 1A;LindaGreenhouse,Bush v. Gore: A Special Report: Election Case a Test and a Traumafor Justices, N.Y. TIMES,Feb. 20, 2001, atAl.18. SeeGorev. Harris, 73 So. 2d 524 (Fla. 2000).19. BushII, 121 S. Ct. at534-39(Rehnquist,C.J.,concurring).20. Id. at 545-46 (Souter, J., dissenting); id. at 551-52 (Breyer, J., dissenting).

21. Id. at 539 (Stevens, J., dissenting); id. at 550 (Ginsburg, J., dissenting).


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2001] Bush v. Gore 1413

Thus, unlike Brown v. Board of Education and the Nixon tapes case,the decision in Bush v. Gore was far from unanimous. Indeed, it wasdivided along strictly ideological lines. Justices Kennedy and O'Connorproved decisive in forming a five-person conservative majority, as theyhave in so many otherrecentcases upholdingstates' rights, limitingfederalregulatorypower, and constrictingfederal constitutionalclaims.22But theirnames do not appearon the percuriamorder.A. TheArticleI Argument

In order to understandwhy the case was so perplexing to mostconstitutionallaw scholars, it is necessary to go throughits arguments.Ibegin with the argumentof the three-personconcurrencewrittenby ChiefJustice Rehnquist.I do this for four reasons. First, this was the argumentuponwhich the Bush forces initiallyrelied to overturn he FloridaSupremeCourt.Second, the issues in the Article II argumenthelp set up the equalprotectionargument hat a majorityof the Court laterdid adopt.Third,thestrongest prudentialargumentthe Court had for interveningin the 2000election is that the FloridaSupremeCourtwas simply out of control anddetermined o throw the election to Al Gore;workingthrough he ArticleIIargumenthelps determinewhether that is really so. Finally, as I explainbelow, the Court's equal protection theory does not really justify theremedythatthe Courtimposed-halting all recounts instead of remandingto the FloridaSupremeCourtfor a uniformandequal standardor countingvotes. But stopping all the recounts might make more sense under theArticle II theory. Therefore it is likely that legal scholars who hope torehabilitatethe result in Bush v. Gore in the future will be particularlyattracted o this line of argument.23Chief Justice Rehnquist's argument is based on Article II, Section 1,Clause 2 of the Constitution, which provides that eachah State shallappoint, n such Manneras the Legislaturethereof may direct,"electors forpresidentand vice president.24 he basic idea is that the Floridalegislature,and not the Florida Supreme Court, has plenary power to decide howpresidentialelectors are chosen. If the Florida Supreme Court interpretsFlorida law other than "in [the] Manner" prescribed by the Floridalegislature-even to avoid a conflict with the FloridaConstitution-it actsin violationof the U.S. Constitution.

22. See cases cited supra note 5.23. See, e.g., CharlesFried,"A Badly Flawed Election": An Exchange, N.Y. REV. BOOKS,Feb. 22, 2001; Richard A. Posner, Florida 2000: A Legal and Statistical Analysis of the ElectionDeadlockand heEnsuingLitigationFeb.3, 2001) (unpublishedmanuscript,n file withauthor).24. U.S. CONST.artII, ? 1, cl.2.


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The problem with Chief JusticeRehnquist'sinterpretation f Article IIis that it assumes that one can divorce the Floridalegislature from everyother element of the Florida lawmaking process, including the Floridacourts and the FloridaConstitution,and thatone can clearly separatewhatFlorida law means from what the Florida courts say it means. This is adifficult claim to sustain.The legislatureonly is the legislaturebecause theFloridaConstitutioncreates it as such. All legislative power in Florida issubject to judicial review underthe Florida Constitution and statutes aresubjectto ordinaryudicial interpretation s well as to judicial review underthe requirementsof the Florida Constitution. To argue otherwise wouldmean that in picking electors some handfulof the Floridalegislatorscouldassemble as a rumpsession and do almost anythingthey wanted, becauseunder Article II they could not be boundby what the Floridacourts or theFloridaConstitution aid.The key precedentoffered by the Bush camp for the plenary power ofthe Florida legislature under Article II, Section 1 actually cuts in bothdirections. In McPhersonv. Blacker,25Michigandecidedto divide the stateinto separatedistricts for the purposeof choosing its electors. The SupremeCourtupheldthis practice,arguingthat the Michigan Legislaturehad "thebroadest power of determination" to decide the method of appointingelectors.26The Court also stated, however, that "[w]hat is forbidden orrequired o be done by a State" in general "is forbiddenor requiredof thelegislative power understateconstitutionsas they exist."27 In otherwords,the Court explained, "[t]he [State's] legislative power is the supremeauthorityexceptas limitedby the constitutionof the State." 8 Hence, if the

25. 146U.S. 1(1892).26. Id.at27.27. Id. at 25.28. Id. (emphasisadded).McPhersonwas nota case in whichthe legislature'sdecisionwasattacked s a violationof theMichigan tateconstitution. heargumentwasthatdividing hestateintoelectoraldistrictswasinconsistentwithArticle I, Section1itself,id.at24, andtheCourtwasattempting o demonstratehat the constitutionalext could not possiblybe read as imposingalimitationon statelegislativepower.The SupremeCourtargued hat if theConstitution adleftout the words"insuchManneras theLegislaturehereofmaydirect,"t wouldnot havelimitedthepowerof thelegislatureo divide ts electors ntodistricts,as longas thisdid notconflict withthe stateconstitution.d. at 25. The additionof this languagecan only enhance he legislature'spower,not limit it. Thus, t "operat[es] s a limitationuponthe state in respectof anyattemptocircumscribehelegislativepower." d.at 25. Presumably,f theMichigan tateconstitutionookthepowerof choosingelectorsentirelyaway fromthe legislature,or specificallyprohibited hedivisionof thestate ntoelectoraldistricts,hatwouldviolateArticleII.But it is a farstretchromthisto thepropositionhat helegislature s notbound n anywayby thestateconstitutionwhen tcreateselection aw orwhen t chooseselectors.It is an evenfurthertretch o thepropositionhatcourts cannot interpret egislative election law in conformitywith the state constitution.Interpretationf statutess notan attempto circumscribehe legislativepower,especiallywhenthecourt s trying o harmonizetatuteswithconstitutionalaluesandmakethestatutorychemepractical ndworkable.Moreover,Rehnquist's bjectionwas notthattheFloridaSupremeCourtwasattemptingo circumscribehelegislativepower;he argued hatanysubstantialhange n thelawviolatedArticleII. McPherson implydoesnothold this.


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2001] Bush v. Gore 1415

Florida Supreme Court interpretedFlorida's election code to make itconsistent with the Florida Constitution,there would be no violation ofArticleII, Section 1, at leastunderthe authorityof McPherson.29A second problem with Rehnquist's argumentis that the legislatureseems to have delegated the task of interpretingFlorida law to Floridaexecutive officials-for example,Secretaryof State KatherineHarris-and,equally importantly, o the Florida udiciary.30Revealingly, section 102.168of the FloridaElection Code authorizescontests of election results in thecircuit courts except for elections to the state legislature, which aregoverned by section 102.171, in which no judicial review applies. Thisindicates that the Florida legislature knew perfectly well how to refrainfromdelegatingauthority o the courtswhen it wantedto.The very same Floridacertification and contest provisions at issue inBush v. Gore govern both federaland stateelections conducted in Florida.There is no doubtthat the FloridaSupreme Court has the right to interpretthose provisions in state elections; why should it be prohibited frominterpretingthe very same provisions in federal elections? The Floridalegislature did not distinguish federal from state elections in the FloridaElection Code.31Thus, if the Florida Supreme Court holds that ballotsshould be judged by the intent of the voter in contests over state elections,why is this test impermissible in contests over federal elections? TheFloridalegislaturecreateda right to bring election contests in the Floridatrial courts, which would clearly have to interpretFlorida law regardingwhich ballots countedand which did not. Is Rehnquistarguing thatArticleII makes a distinctionbetweentrialcourts and appellatecourts, so thattrialcourt interpretationsof the law are permissible but not appellate court

29. During the arguments in Bush v. Palm Beach County Canvassing Board, several Justicesactually criticized the Florida SupremeCourt for construingthe Florida Election Code"liberally.. in favorof thecitizens'right o vote" n lightof theFloridaConstitution's urposes.121 S. Ct. at 474; UnitedStatesSupremeCourtOfficialTranscript t 52-54, 61, Bush v. PalmBeach CountyCanvassingBd., 121 S. Ct. 471 (2000) (No. 00-836). The same concern issuggested in the opinion in Bush v. Palm Beach County Canvassing Board. The Court noted that"itwasunclearas to theextentto whichtheFloridaSupremeCourt aw theFloridaConstitutionas circumscribinghe legislature'sauthority nderArt.II, ? 1, cl. 2." 121 S. Ct. at 475. But asnoted above, nothing in McPhersonpreventsordinary nterpretation f statutes,includingharmonizinghemwithconstitutionalalues, ikeequalityorproceduralairness. ndeed, heideathat a courtcouldnot interprettatutes o promote airnessbecause airnesswas a constitutionalvalue seems perverse.Manyconstitutional alues are also values thatcourtswould routinelyconsiderwhen nterpretingtatutes venif they werenotmentionedn thestateconstitution.30. See Bush 11, 121 S. Ct. at 534 (Rehnquist,C.J., concurring)citing FLA. STAT. chs.97.012(1), 102.168(1), 102.168(8) (2000)).31. Thelegislature id,however,distinguishlections o thestate egislatureromotherkindsof stateelections n section102.171.


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interpretations?32his is a slender reed upon which to decide a presidentialelection.Rehnquist's response seems to be that courts-including the FloridaSupreme Court-can interpret Florida law consistent with Article II,Section 1, as long as theirinterpretation oesn't "change"the law. But thisenters the realmof metaphysical speculation.Courts change law wheneverthey interpret t. After they decide a case, the law is differentthan it wasbefore because they have resolved ambiguities and added interpretiveglosses. The questioncannot be whethertheirinterpretation hanges law; itis whethertheirinterpretations reasonableand sound.Rehnquistadmitsasmuch. At one point he suggests that the test of Article II, Section 1 iswhether the Florida court's work involves a "significantdeparture"33romthe prior law; at anotherhe states that the question is whether the FloridaSupremeCourt "impermissiblydistorted" the statutoryscheme "beyondwhat a fairreadingrequired."4Evaluating Chief Justice Rehnquist's Article II argument requires adetour into Florida election law. Floridaallows protestsof elections, whichare held in front of county canvassingboards,andcontests, which are heldbefore courts.35Protests ask the canvassingboards to count ballots and tocount them correctly;contests challenge the validity of the election in thecourts. Protests can be brought until the vote totals are certified by thecanvassingboards and by the Secretaryof State. After certification,partiescan bring a contest of the certified results. Nothing in the languageof thecontest provisions, however, suggests that a protest is prerequisiteto acontest. Grounds for contesting an election are given in section102.168(3)(c). They include receiptit of a number of illegal votes orrejection of a number of legal votes sufficient to change or place in doubtthe result of the election."36The Florida Election Code-including the protest and contestprovisions-was substantiallyrevised in 1999. Hence most of the centralcontroversies about its interpretationwere questions of first impression.This single fact already throws the Article II, Section 1 argument intoconsiderabledoubt, for unless the text was unambiguouslyclear, it wouldbe hard to say thatany reasonablegloss markeda "significantdeparture"7

32. Cf BushII, 121 S. Ct. at 534 (Rehnquist,C.J., concurring)notingthe delegationofauthorityo the Secretary f State andto "statecircuitcourts"butavoidinganymentionof theFloridaSupremeCourt).33. Id.34. Id. at 535.35. Compare LA.STAT.ANN. ? 102.166(West2000) (governing lectionprotests),with d.? 102.168(governing lectioncontests).36. Id.? 102.168(3)(c).37. Bush II, 121 S. Ct. at 534.


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2001] Bush v. Gore 1417

from the law, or "impermissiblydistorted[it] beyond what a fair readingrequired." 38In fact, the Florida Election Code was not particularlyclear, and theFlorida SupremeCourt had to make a numberof important nterpretativedecisions in order to apply the protest and contest provisions to thepresidential election. First and foremost, the court had to decide what a"legal vote" was. The term"legal vote" is nowhere defined in the text ofthe statute.Chief JusticeRehnquistargued hat the FloridaSupremeCourt'sinterpretationdistorted Florida law because it counted what Rehnquistcalled "improperly marked ballots." 9 These are ballots that machinecounts did not read as casting a vote for president. In effect, Rehnquistclaimed, if a properly functioning punch card machine could not read aparticularballot, the ballot was not a "legal vote" under Florida law, nomatterhow clearlythe voter's intention would seem to a humantabulator.40Rehnquistinsisted that Floridalaw gives detailed instructionsto voters topunch their ballots clearly and cleanly.41 Therefore,he concluded, voterswhose votes could not be read by punch card machines have no one toblame but themselves if the votes are not counted. They simply did notfollow instructions.For this reason, the Florida Supreme Court was notentitled to interpretFlorida aw to let stateofficials inquire nto the intent ofthe voter in order to count these "improperly marked" ballots.42ThatchangedanddistortedFlorida aw.The FloridaSupremeCourtdisagreed.It held that "legal votes" shouldinclude votes that were not read by machine counts but that clearlyindicated the intent of the voter.43Despite Chief Justice Rehnquist'suggestionto the contrary, hereis a textual ustification for including theseballots. The FloridaSupremeCourtbased its conclusion on portions of theFloridaelection code that controlled how canvassing boardsshould countvotes. Section 101.5614(5) concerns ballots that are so "damaged ordefective" that they "cannot properly be counted by the automatictabulatingequipment."It providesthat"[n]o vote shall be declaredinvalidor void if there is a clear indicationof the intent of the voter as determinedby the canvassingboard."The courtreasoned that if the canvassingboardmustcount ballotswhere the intent of the voter can be discerned, these are

38. Id. at 535.39. Id. at537 ("Floridatatutoryawcannotreasonably e thought o require hecountingofimproperlymarked allots.").40. Forexample, f the votertook the ballotandwroteon it with a MagicMarker,"Idon'tknowwhethermy chadpunchedhrough orrectly,but I want o vote for Al Gore," hiswouldnotbe a legal voteunderFlorida aw. I amindebted o MarkTushnet orthisexample.41. 121S. Ct.at537.42. Id. at 537-38.43. Gorev. Harris,777 So. 2d 1257 (Fla.2000) ("[A]legal vote is one in whichthereis a'clear ndication f theintentof thevoter."').


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also "legal votes" in an election contest. This conclusion is buttressedbysection 102.166(7)(b), which governs manual recountsin election proteststhat occur before certification. It provides that "[i]f a counting team[conductinga manualrecount] is unable to determine a voter's intent incasting a ballot, theballotshallbe presented o the county canvassingboardfor it to determine the voter's intent." The Florida Supreme Court alsonoted that the intent of the voter standard or determining egal votes washardly a novel innovation.Indeed, it had been recognized in Florida caselaw in cases datingback to the 1930s.4'Conversely, section 101.5614(6) provides that "[i]f an elector marksmore names than there are persons to be elected to an office or if it isimpossible to determine he elector's choice, the elector's ballot shallnot becounted for that office." This implies that "overvotes" where more thanone name was punched on the ballot-and votes where the voter's intentcould not be determinedwere not "legal votes." That part of the statutorytext is importantbecausethe FloridaSupremeCourt's December 8 decisionordered the recount of undervotes, but not overvotes. Section 101.5614(6)seems to offer textualsupport or thatapproach.Finally, because "legal votes" include undervotesthat are not read bymachine counts, the court held that the best way to make sense of thestatutory scheme was to hold that "legal votes" are "rejected" undersection 102.168(3)(c) when they are not read by a machine count.Otherwisethe courtwould have to hold thatlegal votes sufficient to changethe outcome of the election might exist butthatfailure of machines to countthem could not be raised in an election contest because the votes were not"rejected," which seems to be a perverseresult.45

44. Id. at 1256(citingMcAlpinv. State ex rel. Avriett,19 So. 2d 420 (Fla. 1944);Stateexrel.Peacockv. Latham,169So. 597, 598 (Fla.1936)).45. ChiefJusticeRehnquist's iew that mproperlymarkedballotsarenot legal votesseemsto be the view thatwas ultimately doptedby theFloridaSecretary f State.See BushII, 121 S.Ct. at 537. ThusRehnquistmightargue hatas a matter f administrativeaw theFloridaSupremeCourtshoulddeferto that nterpretation,kin to the Chevrondoctrine,whichapplies n federaladministrativeaw. See ChevronU.S.A. v. NaturalRes. Def. Council,467 U.S. 837 (1984). Theproblem s thatFloridadoes not seem to have adopted he Chevrondoctrine or its courtsandadministrativegencies, and there is nothing n Article II, Section1 thatrequires t to do so.Rather,Floridaseems to have adoptedthe rule that it will defer only to reasonableagencyinterpretationsf statutes, ndthatdeference s particularlyppropriatenlywhentheagencyhasspecialexpertise.The Secretary f Statewas a politicalofficer with no particularxpertise nvotingequipment;herefore t wasnotentirelyunexpectedhattheFloridaSupremeCourtwouldaccordher interpretationf the law less deference.See Michael J. Klarman,Bush v. Gore:Through the Lens of Constitutional History, 89 CAL. L. REV. (forthcoming Dec. 2001)(manuscriptt 26) (quotingDavidM. Greenbaum& LawrenceE. Sellers,Jr.,1999Amendmentsto the Florida Administrative Procedure Act: Phantom Menace or Much Ado About Nothing?, 27FLA.ST.U. L. REV.499, 522-24 (2000)). Of course,thequestionof whichpowersaredelegatedto whichbranches f theFloridagovernments a questionof Florida tatutory ndconstitutionallaw, andChiefJusticeRehnquist ives no reasonto thinkthatpriorprecedents n this questionweredisregarded.


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2001] Bush v. Gore 1419

Judging from the actualtext of the Floridastatutes themselves and thehistory of previous Florida decisions emphasizing the importance ofdiscerning voter intent, one cannot say that the Florida SupremeCourt'sinterpretation s unreasonableor significantly distorts the meaning of thestatute. Indeed, Rehnquist' position seems a bit harsh and ratherunreasonable,becausemanyvoterspresumablydo not bother to check theirballots for hanging or dimpled chads. Perhaps Rehnquist's "blame thevoter" interpretations possible,46but it is hard to arguethat it is the onlyplausible interpretation,or, more to the point, that it was the clear andcertainmeaningof the statutory cheme before the November 7 election.The FloridaSupremeCourtalso had to decide how much weightcourtsshould give to decisions by the canvassingboards n election protestswhena court hearda subsequentelection contest. The statutoryframeworkhasseparateprovisions for protests and contests. The lower court judge arguedthatif the canvassingboardshad decided not to performmanualrecounts,their decision could not be challenged in a subsequent election contestunless there was an abuse of discretion.47The statutory text does notdescribe contests as akin to appeals from protests or mention a standardof review. Nevertheless, Chief Justice Rehnquist agreed with thisinterpretation.He argued that allowing recounts during the contest phaseaftercanvassing boards haddecided against recounts"empties certification

46. Rehnquist's ositionon "legalvotes"stems fromhis interpretationf section102.166(5),whichauthorizes ull manualrecountswherea partialmanualrecount"indicatesan error n thevotetabulationwhichcould affecttheoutcomeof theelection."Rehnquist rgues hat anerror nvote "tabulation"an only referto machineerror."Noreasonableperson,"he contends,"wouldcall it 'anerror n thevote tabulation,"'f thevoting machines ail to pickupmismarked allots.BushII, 121 S. Ct. at537. He thenargues hat"[i]tis inconceivablehatwhatconstitutesa votethatmustbe countedunder the 'error n the vote tabulation'anguageof the protestphaseisdifferentromwhatconstitutes vote thatmustbe countedunder he 'legalvotes'languageof thecontestphase." d.at 537 n.4.DespiteRehnquist's onfidentassertions, t is notobviousthat"error n tabulation"annotreferto ballotsthatproperlyworkingmachinesfailed to countbut thatevidencedthe voter'sintentions.A commonsense eadingof the statutewouldhold thatmachinesmakean "error ntabulation"whenever hey fail to count legal votes that should have been counted. The errorcomes notfromthe fact thatthe machine s broken,butrather romthefact thatmachinecountsarenecessarilymperfectmeasuresof voterintent.If the Florida egislaturewanted o limit thephrase"error n tabulation"o errorscausedby improperlyunctioningmachines, t certainlycouldhavedone so. But the phrase s not so definedanywhere n the statute.Moreover,otherpartsof thestatute uggest hatthecommonsense eadings a betterone. Theremedies or"errorin tabulation"renot limitedto fixing brokenmachinesandrunninghe ballotsthroughagain.Theyalso include a manualrecountof the ballots,see FLA. STAT.ANN. ? 102.166(5)(c) West2000). Perhapsmore mportant, nder ection102.166(7)(b), hepurposeof that nspection s notto determine owa properlyunctioningmachinewouldhavecounted heballot; t is to determinethe voter's ntent. d. ? 102.166(7)(b).Thissuggests hat"errorsn tabulation"mayincludeerrorsthat couldnot be correctedby machinesbutcould be corrected nly by human nspectionof theballots ooking orevidenceof voters' ntent.47. Gore v. Harris,772 So. 2d at 1252 (quotingGore v. Harris,No. 00-2808, 2000 WL1770257 Fla.Cir.Ct.Dec.4, 2000)).


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of virtuallyall legal consequenceduringthe contest,and in doing so departsfrom the provisions enactedby the FloridaLegislature."8The FloridaSupremeCourt nterpretedhe statutedifferently.It did nottreat election contests as an appealfrom a protestbut as a separatetype ofproceeding with a differentpurpose. The protest s a requestfor canvassingboards to performtheirministerial unctions of countingvotes. The contestis addressedto courts to determine whether the election was validly held,andmay raise issues thatgo well beyondwhat could be raisedin a protest.49That is why a protest is not a prerequisite to a contest. It is not anexhaustion of administrative emedies. The FloridaSupremeCourtarguedthat if the plaintiffs could demonstratethat enough legal votes were notcountedby the canvassingboardsto change or place in doubt the outcomeof the election, the court had a duty to count them even if the canvassingboards had refused. Chief JusticeRehnquistapparentlybelieved that therewas no support or this result in the text of the statute.The FloridaSupremeCourt's argument, however, might seem to follow directly from thelanguage of section 102.168(3)(c), because if the canvassing board"reject[ed] a number of legal votes sufficient to change or place in doubtthe result of the election" the court should not defer to its decision.Nevertheless, the courtheld, the canvassingboard'sdecisions areevidenceof whethera vote is legal or not.50Althoughthis evidence is not conclusive,"when a manualcount of ballots has been conductedby the CanvassingBoard ... the circuit court in a contest proceeding does not have theobligation de novo to simply repeat an otherwise-propermanual count ofthe ballots.""5This does not "empt[y] certification of virtually all legalconsequence"; it does, however, treat protests and contests as separateproceedings.This separation,however, seems arguablycontemplatedby theseparatestandards ndprocedures or contests andprotests n the text of theFloridastatute,and by the fact thatone does not needto bringa protestfirstin order o bringa contest.Finally, the court had to decide what remedies it could offer in anelection contest. Section 102.168(8), also passedin 1999, states that "[t]hecircuitjudge to whom the contest is presented may fashion such orders ashe or she deems necessary to ensure that each allegation in the complaint sinvestigated, examined, or checked, to prevent or correct any allegedwrong, and to provide any relief appropriateundersuch circumstances."2

48. BushII, 121S. Ct. at 537.49. Gore v. Harris, 772 So. 2d at 1252.50. Id. at 1252,1260.51. Id. at 1260. Forthis reason,the FloridaSupremeCourtupheldthe canvassingboard'soriginal manualcount of ballots in Palm Beach County.Refusal to repeat manualrecounts"reflects he proper nteraction f section 102.166governingprotestsandmanualrecountsandsection102.168governing lectioncontests." d.52. FLA. TAT. ANN. ? 102.168(8) West2000).


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twenty-one states did not submit their electors to the NationalArchives bythe December 12 deadline. These included three states-Iowa, NewMexico, and Wisconsin-in which the presidentialelection was particularlyclose.56Four states-California, Iowa, Maryland, and Pennsylvania-didnot sign the Certificatesof Ascertainmentestablishing the identity of theirelectors until December 14. As officials at the National Archives patientlyexplained to reporters following the expiration of the December 12deadline, "the reason for the seemingly slow pace" of filings with theNational Archives "is that the real deadline is Dec. 18, when the membersof the electoral college meet in their respective states" (and in the Districtof Columbia)to vote for the presidentand vice president.58Nevertheless, Rehnquist asserted, the Florida legislature intended totake advantageof the safe harborprovided by federallaw, and the FloridaSupreme Court violated Article II, Section 1, Clause 2, because its

thatthe votes were to be countedbefore ajoint session of Congressas providedor in ArticleII.The presiding fficer at thejointsessionof Congresswas Vice PresidentRichardNixon,who hadjust lost the 1960 presidential lection but was still technicallyPresidentof the Senate.Nixonstated o thejoint session of Congress hathe didnot intend o set a precedenthrough is actions,but that n his view theJanuary certificate orrectly tatedHawaii'svotes andthat f therewasno objection he Democratic lectoralvotes wouldbe accepted.Therewas no objection,and theDemocraticelectoral votes were counted.In fact, Hawaii's votes made no difference to theoutcomeof the election, which was one reasonwhyNixoncounted hem.See WilliamJosephson& BeverlyJ. Ross, Repairing he ElectoralCollege, 22 J. LEGIS. 45, 166 n.154 (1996); L.KinvinWroth,Election Contestsand the ElectoralVote,65 DICK.L. REv.321, 341-43 (1961).CongressacceptedHawaii's electorseven though he certification f electors wentwell beyondthe safe harborperiod.Nevetheless,becauseJanuary was also well past the congressionallyassigneddate for electorsto meet,there s a separatessue underArticleII, Section 3. See infranote 58.56. District,29 StatesSubmitElectors,WASH. OST,Dec. 13, 2000, atA29; GeorgeLardnerJr.,OfficialCertificationsf ElectorsTrickle n;39 JurisdictionsFile "Ascertainments," ASH.POST,Dec. 14, 2000, at A30 (notingthatnine additional tates filed the day after the supposedDecember12 deadline); ee also Savage& Weinstein, upranote 3 ("Thisyear,moststates didnot actuallyhave thenamesof theirelectorssubmittedo Washington yDec. 12.").57. Certificatesof Ascertainment re requiredby 3 U.S.C. ? 6 (1994). The CertificatesofAscertainment f the fifty states and the Districtof Columbiaare available for inspectionathttp://www.nara.gov/fedreg/elctcoll/2000certa.htmllast visitedFeb.19, 2001).58. Lardner,upranote 56, at A30. Thisrequirements explained n the UnitedStatesCode:"Meetingandvote of electors. Theelectorsof PresidentandVice Presidentof each State shallmeet andgive theirvotes on the first Mondayafterthe secondWednesdayn Decembernext

following theirappointment t such place in each State as the legislatureof such State shalldirect."3 U.S.C. ? 7 (1994). There s a plausibleconstitutionalrgumenthat once Congresshasset thedaythe statesmaynotappoint heirelectors ateron, becauseArticleII,Section3 requiresthatthe day for choosing electors must be the samethroughout he UnitedStates. The evidentpurposeof ArticleII, Section 3 is to prevent tatesfromdelaying heirelectoralvotes in order osee what otherstateshave done and then throw he election to one candidate r another n returnfor specialconsiderations. ossibly udicialinterpretationf ArticleII could make an exceptionforemergenciesn which it wasclear that the statewas nottrying o gain an advantage is-A-visthe otherstates.In an age in which all statesdetermine heirelectorsbased on popularvotes onElection Day such an exception would be completelysensible. Moreover,compliance withArticleII, Section3 mightbe apoliticalquestion eserved orCongress o decideunder ts powersto count electoralvotesunderArticle II, Section 2 and theTwelfthAmendment.Eitherof thosesolutionswouldmean hatHawaii's 1960vote was constitutional.


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2001] Bush v. Gore 1423

interpretations f Florida aw took Florida'selection out of the federalsafeharbor.Rehnquistthoughtthe safe harborwas no longer availablebecausethe Florida Supreme Court had substantiallychanged Florida law as itexisted on November 7, for the reasons discussed previously. Even if theFlorida Supreme Court had not changed the law but only interpretedandclarified it, however, Rehnquistbelieved that the court-orderedrecountswould takeFloridaout of the federalsafe harborbecausethey mightextendpast December 12.There are four problems with this objection. First, the text of theFlorida Election Code is completely silent about the safe harbordeadline.The only Florida lawmakingbody that had said anything about the safeharborwas the FloridaSupremeCourt,which Rehnquisthadjust accusedofreading things into the text that were not there.59 econd, December 12 isnot the real deadline; December 18 is. Ensuring that Florida's vote is"conclusive" is surelya valid purpose,but it is not the only purposebehindthe election code. Given changed circumstances,one has to decide whichpurpose is more important-meeting the safe harbordeadline or countingevery legal vote and attempting to discern which candidate actuallyreceivedthe most votes. Choosing betweenvalid butcompetingpurposes sa fairlystandardob of courtsin interpreting tatutes.The text of the FloridaElectionCode does not decide this question,and Rehnquistandthe FloridaSupremeCourtsimply disagreedabout which was moreimportant.But thatdisagreement does not by itself constitute a violation of Article LI,Section 1. Third,at the very moment thatRehnquistwrotehis opinion, theFloridalegislaturewas planningto endorse a Republican slate of electorsthat would directly violate the safe harbor requirement because theendorsementwas a change in Floridaelectoral law that would occur afterthe November7 election. This is essentially the same cast of charactershatcreated the 1999 Florida Election Code, and thus offers fairly strongevidence that the 1999 Floridalegislature was willing to forsake the safeharbor if something more important was at stake.60Fourth, the majorimpediment to completing the recounts by December 12 was the U.S.SupremeCourt's stay of the recountson December 9. The recounts werewell on their way to completion when the Court stopped them. It thenissued its opinion (along with Rehnquist's complaint about tardiness) atten P.M. on December12. It hardlyseems fairto blame the FloridaSupreme

59. Thus, there is something deeply ironic about Rehnquist's statement that "the text of theelection law itself, and not just its interpretationby the courts of the States, takes on independentsignificance" under Article II, Section 1. Bush v. Gore (Bush HI), 121 S. Ct. 525, 534 (2000)(Rehnquist, C.J., concurring). If the Florida Supreme Court had not mentioned the safe harbor,Rehnquist would have had no Article II argument at all.60. In any case, it is also likely that the 2000 legislature's act would not only violate the safeharbor provisions of 3 U.S.C. ? 5, but would also be in violation of Article II, Section 1 underRehnquist's theory.


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Courtfor going past the safe harbordeadline when the U.S. SupremeCourtheld it up untilthe deadlinewas almostpast.It is interestingthatChief JusticeRehnquistdoes not directlyobject tothe most obvious way that the FloridaSupremeCourtcould be said to havechanged Florida law. On November 21, the Florida Supreme Courtextended the deadline for recounts in the protestphase almost two weeksand held that theSecretaryof Statelacked discretionto refuseto includetheresults of manualrecounts conductedduringthatperiodin her certificationof the vote totals.6' Rehnquist does not directly assert that this changeviolated Article II, Section 1. Rather, he uses it to underminethe FloridaSupreme Court's interpretationof the appropriatestandard of review ofcanvassing boarddecisions not to recount ballots. He argues that movingthe deadline demonstrated that the Florida Supreme Court must havebelieved thatcertificationgave "presumptivevalidity" to canvassingboarddecisions;62otherwise it would not have shortenedthe contest period bylengtheningthe protestperiod.63Why doesn't Rehnquistmake more of the November 21 decision? Theanswer is simple. Even if the change in the certificationdeadlineviolatedArticle II, Section 1, the proper remedy would be to return to thecertification totals that would have existed as of the statutorydate ofNovember 14. This would not prevent the Florida Supreme Court fromorderingfull manualrecountsduring the contest phase.f' In order to justifystopping therecountscompletely,Rehnquisthad to arguethat otherfeaturesof the FloridaSupreme Court'sdecision also violated Article II, Section 1.That is why he challenged the FloridaSupremeCourt's interpretations fthe meaningof "legal votes," the standardof review, andthe importanceofmeetingthe safe harbordeadline.I have recounted Rehnquist's objections and the relevant features ofFlorida law in some detail so thatthe readercanjudge whetherthe FloridaSupreme Court's interpretations of the Florida Election Code werereasonableor unreasonable,or in Chief JusticeRehnquist'swords,"markeda significantchange" or "impermissiblydistorted hem beyond what a fairreading required."65t is hard to argue that this test is met. The FloridaSupremeCourt'sinterpretations f "legal votes" andthe standardof reviewhave a clear basis in the text of the statute, even if there are plausiblecontrary nterpretations.Given thatthis was a case of first impression,onecould argue that both Rehnquist's and the Florida court's interpretations

61. PalmBeachCountyCanvassingBd. v. Harris, 72 So. 2d. 1220 (Fla.2000).62. Bush II, 121 S. Ct.at 537.63. Id. at536-37.64. It would not evenpreventrecountsonlyof undervotes.TheFloridacourtswouldsimplyhavetoexcise anyovervotes ncluded n thecertification.65. Bush II, 121S. Ct.at535.


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2001] Bushv. Gore 1425

changedthe law by glossing it. Withrespectto the remedy,the statutewassimply silent on how to balance competing purposes given changedcircumstances, and the Florida Supreme Court's balance of competingconsiderations is perfectly understandableeven if Rehnquist would nothave chosen it.When one actuallyworksthrough he complaintsthatRehnquistmakesabout the Florida Supreme Court, it becomes clear that his owninterpretationsare not superiorto theirs; in some cases his readings aremarkedly worse. Thus, one is left wondering: Why is Rehnquist'sinterpretationof Florida law more worthy of deference than the FloridaSupreme Court's, especially in a case of first impression?Does he havesome special expertise in Florida law that the Florida Supreme Courtsomehow lacks? Perhapsmost importantly, why is the Florida SupremeCourt's interpretationof Florida state law wrong as a matter of federalconstitutional aw? PerhapsRehnquistmight objectthatthree Justices of theFlorida Supreme Courtagreedwith him to some extent aboutwhat Floridalaw means, butclearlya majoritydid not. (He wouldcertainlynot think thatfour dissenting United States Supreme Court Justices conclusivelydeterminewhat federal law means when a five-Justicemajoritydisagrees).After carefullyexaminingFloridalaw, one must conclude that the ArticleII, Section 1 arguments simplynot verypersuasive.B. TheEqualProtectionArgument

The Bush forces originally rested their hopes on the Article IIargument.Because that argument s so difficult and convoluted, however,Chief JusticeRehnquistwas unable to get JusticesKennedyandO'Connorto join his opinion. Instead,they formedpartof a five-personmajoritythatdecided the case on differentgrounds. The per curiam opinion in Bush v.Gore held that the Florida Supreme Court violated the Equal ProtectionClause of the FourteenthAmendmentbecause it failed to impose a uniformstandard or counting votes in election contests. The Floridadoctrine thatstate officials shouldbase theirdecisions on the intent of the voterwas not asufficiently clear rule. The intentof the voter test might result in differentstandardsbeing invoked in differentcounties, or indeed, at differentplaceswithinthe samecounty. Furthermore,he certificationprocessdemonstratedthat different standardsactually had been used in different places. In itsDecember 8 opinion in Gore v. Harris, the FloridaSupreme Courtdid notcorrect for these discrepancies when it orderedthe inclusion of differentcounties' manual recounttotals in the official certification. In addition, inthree counties, overvotes-ballots with more than one presidentialchoicemarked-were counted in the certification totals if the intent of the votercould be determined.Yet the Florida SupremeCourt's December 8 order


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for manualrecountsincludedonly those undervotes n which no choice wasreadableby the machines.66Failure to have a single uniformstandardmeant that some votes wouldbe counted thatwould notbe countedif they hadbeen inspectedin differentplaces or by different officials. The majoritybelieved thatthis violated theguaranteeof equalprotection o the fundamental ightto vote. In supportofthis argument,the majoritycited two WarrenCourt precedentsfrom the1960s: Reynolds v. Sims,67 which established the "one person, one vote"principle,andHarperv. VirginiaBoardof Elections,68which prohibited heuse of poll taxes in state elections.The majority's equal protection argumentis novel, but not entirelycrazy. It extends the principleof "oneperson, one vote" from the questionof how districts are apportionedbefore the election to the questionof howthe votes are tabulatedafter the election. Justas Harper says thatthe statesare bound by the Equal Protection Clause in establishing votingqualifications,Bush v. Gore says that states are now bound by the EqualProtection Clause in counting the votes of qualified voters. It is a largestretch in the doctrine, but it is not an impossible stretch. Of course,traditionally, states were given almost complete discretion in how theyhandled their electoral systems. In Colegrove v. Green,69for example, theCourt held that how the state drew its voting districts was a nonjusticiablepolitical question. The WarrenCourt revolution in the 1960s changed allthat. And so one could see Bush v. Gore as a furtherextension of federalconstitutionalprinciples nto a once-sovereign prerogativeof the states. It isironic thatthe extensionis being carriedout by the Justices most committedto protecting state sovereign prerogativesagainst federal intrusion.70Butthat speaks to the Justices' possible motives and not to the intellectualcoherence of the doctrine.

66. See 772 So. 2d 1247; id. at 1264(Wells, J., dissenting) objecting o the refusal o countovervotes).67. 377 U.S. 533, 555 (1964) ("[T]herightof suffragecan be deniedby a debasement rdilutionof the weightof a citizen's votejust as effectively as by wholly prohibiting he freeexerciseof thefranchise.").68. 383 U.S. 663,665 (1966)("[O]nce hefranchises grantedo theelectorate,inesmaynotbe drawn which are inconsistent with the Equal ProtectionClause of the FourteenthAmendment.").69. 328 U.S.549 (1946).70. See, e.g., UnitedStatesv. Morrison, 29 U.S. 598 (2000) (holding hatrespect or statecriminaland domestic law requires he invalidation f a federalcivil rightsstatute);Alden v.Maine, 527 U.S. 706 (1999) (findingthat respect for dignity of state governments equiresimmunity romfederal rightsclaims against the statebrought n statecourt);Printzv. UnitedStates, 521 U.S. 898 (1997) (noting that respect for states as sovereignsrequiresa TenthAmendmentprohibitionon federalcommandeering f state executive officials); Gregory v.Ashcroft,501 U.S. 452, 460 (1991) (requiring clearstatement eforeCongresswill havebeenjudged o interferewithstategovernmentalnstitutions).


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2001] Bush v. Gore 1427

The equalprotectionargument aces a few problems,however. First, itis inconsistent with previous precedents that suggest that in counting,qualifying, and tabulating votes, states and localities must be given greatdiscretion.In fact, in most equal protectioncases of this nature,the Courtapplies only a test of rationalbasis; that is, it asks whetherthe challengedlaw is rationallyrelated to a legitimate governmentalpurpose.71 This isespecially so given that the Courtdid not claim that invidious motivationentered into the recount procedures. Without some proof of invidiouspurpose, it is difficult to see how the Florida Supreme Court's decisionwould have failed this test of rational basis.72 t is quite possible that theU.S. Supreme Court actually did not trust the Democratic canvassingboards and trusted recounts by Democraticjudges even less, even if thelatterrecounts were held using a single standard.The Court did not makethese accusationsdirectlyin its opinion,however.73Perhaps he best way tosolve this problemis to argue that, as in Reynolds v. Sims, the Court isinterested in representativefairness as opposed to bad intent. Thus, theEqualProtectionClause demands that states must have objective standardsfor counting votes beyond a simple intent-of-the-voterstandardbecause acitizen's vote should not be counted or rejected based on procedures orcriteria hatarearbitrary.A more serious problemwith the Court'sequal protectionargument sthat it proves too much. Each stateuses differentprocedures o conduct itselections, and, within states, counties, municipalities, and even precinctsoften use different methods of counting votes. Some use lever systems,some use paper ballots, some use punch cards, some use ATM-stylemachines, and some use optical scanners. The effect of all of thesedifferencesmeans thatballots are always treateddifferently at the countingphase of an election. In fact, as Justice Breyer explained, "the ballots ofvoters in counties that use punch-card systems are more likely to bedisqualifiedthan those in counties using optical-scanningsystems."74Thismeans that "ina systemthat allows counties to use differenttypes of votingsystems, votersalready arriveat the polls with an unequalchancethat their

71. See, e.g., McDonaldv. Bd. of ElectionComm'rs,394 U.S. 802, 809 (1969) (stating hateven in the context of the rightto vote, the stateis permittedo reform"'onestep at a time"'(quotingWilliamson . LeeOptical,348 U.S.483, 489 (1955))).72. See, e.g., Lyng v. Int'lUnion,485 U.S. 360 (1988) (upholding s rationally elated o alegitimategovernmentnteresta congressionaldecision to deny eligibilityfor food stampstohouseholdsn which a memberwas currently n strike);TransitAuth. v. Beazer,440 U.S. 568(1979) (upholdingas rationally elatedto a legitimategovernmentnteresta municipal ransitauthority'sefusal o employformerheroinaddictswhousedmethadone).Conversely, heCourthas sometimes oundviolationsof therationalbasis test where t held thatinvidiousmotivationwas present.Romerv. Evans,517 U.S. 620 (1996);Cleburne . CleburneLivingCtr.,473 U.S.432 (1985); U.S. Dep't of Agric.v. Moreno, 13 U.S. 528 (1973).73. JusticeStevens,however,readingbetween helines,understoodhemto be implying ustsuchaccusations.Bushv. Gore BushII), 121S. Ct.525, 542 (2000)(Stevens,J.,dissenting).74. Id.at552 (Breyer, .,dissenting).


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votes will be counted."75And those differences in treatmentswamp anydifferences that might accrue from slightly different standards used inmanual recounts. Indeed, even when there are no manual recounts-andtherefore no opportunityto apply different standards-the discrepanciescreated by technology are always there. So the puzzle that the SupremeCourt's decision creates is why the Equal Protection Clause does notrequire that states create uniform technologies for counting votes ratherthanjust uniform standards or manualrecounts.The per curiamorderdoesnot say. Indeed, it specifically does not hold thattechnologicaldifferencesamong counties can give rise to an equal protectionviolation. Yet this isprobably the greatest source of unequal treatment, particularlybetweenmore affluentcounties and less affluent ones. And the ironyis that when theFloridaSupremeCourt tried to step in to remedy the problemscaused bydifferences in technology, the U.S. SupremeCourt held thatthis-and notthe more serious technological differences-constituted a violation of theEqualProtectionClause.Of course, if Bush v. Gore is really a case about invidious motivation,one might be able to justify a narrowerholding. Machines do not haveinvidious motivations;people engagedin counting ballots do. But if Bushv.Gore really is in the same honored line of cases as the ones the Courtcited-Reynolds and Harper-then invidious motivation cannot be thewhole story. The point of equal protection is to guarantee fairness andrepresentativeness, nd then differences in technology should matter.The question, then, is not whether this newly crafted doctrine mightmake sense. The question is whether the Court is at all serious aboutapplying it and living with its potentiallyrevolutionary mplications. If theCourt were truly committed to the principle that voters should not besubjected to arbitrary procedures that decide whether their votes getcounted or not, the Court would be obligated to investigate a number ofdifferentaspectsof state voting practices, including technology. But the percuriam opinion deliberately shied away from these conclusions: "Ourconsideration is limited to the present circumstances, for the problem ofequal protection in election processes generally presents manycomplexities."76This strongly suggests that the opinion in Bush v. Goreannouncesprinciples that are good for this case only. The Court in effectsignaledthat it hadno intention of expanding the principle past the facts ofthis particular lection contest. Nor is this surprising.The five conservativeJustices who adoptedthe argument n the per curiam opinion are amongthose least likely to want to interferewith internal operations of the states

75. Id.76. Id. at 532.


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on the groundsthatthey violate equal protectionof the laws.77Whetherornot Justices Souter andBreyerwould vote to extend the reasoningof Bushv. Gore to new situations, it remainsto be seen whetherany of the otherJustices will.78And if the Courtdoes not take its newly announcedequalprotectionprincipleseriously in futurecases, this will cast grave doubt onhow important hatprinciplereally was, other than as a means to decide theelection in favor of George W. Bush. In short, what underminedbelief inthe Court's ability to put principle above raw partisanshipwas not thecontent of its new doctrine,but the context in which it was packagedanddelivered,and the vanishinglysmall scope promisedfor the new rule.C. TheRemedy

The final problem with the per curiam opinion is the remedy. If theCourtreally thoughtthat the equal protectionviolationwas so serious,whydidn't it simplyremand he case to the FloridaSupremeCourtto establish asingle standard or the manualrecountsandthen continue with the processas described under Florida law? The answer the Court gives is that thiswould violate another eature of the Floridastatutoryscheme as interpretedby the FloridaSupremeCourt.The Florida SupremeCourtbelieved thattheFlorida legislature wanted to "participatefully in the federal electoralprocess," which the U.S. SupremeCourtinterpretedas a desire to meet thesafe harbordeadlineof December 12.7 The U.S. SupremeCourtopinion israthersloppy at this point. The above-quotedlanguage does not actually

77. See cases cited in note 70 supra.One mightwonderwhy JusticesSouterandBreyerjoined in theequalprotectionpartof theopinion.This seemsto be a relic of failednegotiationsamongthe Justices.See Biskupic, supra note 17, at IA; Greenhouse, upra note 17, at Al.JusticesSouterandBreyerappearo have beenengaging n a statesmanlikeormof compromise.Theyweretrying o forma coalitionof Justices n the centerof theCourt hatwouldrecognizethatthere was an equalprotectionproblembut then wouldsend the case backto continuetherecountsundera single uniform tandard o be establishedby the FloridaSupremeCourtor bysomeotherFloridaofficial,perhaps venby theFloridaSecretary f State.TheywereunabletopersuadeJusticesO'ConnorandKennedy o join them.By thatpoint,however,JusticesSouterandBreyerwerealready ommittedo holding hat herewas anequalprotection roblem.78. JusticesSouterandBreyerargue hat"theEqualProtectionClausedoesnotforbid he useof a varietyof votingmechanismswithina jurisdiction, ven thoughdifferentmechanismswillhavedifferentevels of effectivenessn recording oters's ntentions." ushII, 121 S. Ct.at545.The question s why this shouldbe so, since as JusticeBreyerpointsout in his dissent,theseeffectsaremoresignificant han heeffects of different tandards sed in manual ecounts. d. at552 (Breyer, .,dissenting).79. Id. at 533 (citing " So. 2d, at 2000 WL 1800752 (slip op. at 27)" and "PalmBeach Canvassing Bd. v. Harris ... 2000 WL 1725434, *13 (Fla. 2000)"). The Court cites thewrongFloridaSupremeCourtopinion.2000 WL 1800752is the December8 opinion n Gore v.Harris,772 So. 2d 1243(2000).Thequotedwordsneverappearn thatopinion.Theydo appearin the November 21 opinion in Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1220,1237-38, 1239 (Fla.2000), and in the December11 opinion n PalmBeachCountyCanvassingBoardv.Harris,772 So. 2d 1273,1289,1290 (Fla.2000),whichtheCourtdoesnotcite.


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appear n one of the two FloridaSupremeCourt cases cited,80 ndthe othercase never mentions the December 12 deadline.The FloridaSupremeCourtdid, however, mention the December 12 date twice in a December 11opinionhandeddown after the oralargument n Bush v. Gore.8" n anycase,the U.S. Supreme Court majority seized on the language of the FloridaSupremeCourt'sopinionsas ajustificationforendingthe recounts:The SupremeCourt of Floridahas said thatthe legislature ntendedthe State's electors to participatej] fully in the federal electoralprocess," as providedin 3 U.S.C. ? 5. Thatstatute, n turn,requiresthat any controversy or contest that is designed to lead to aconclusive selection of electors be completed by December 12.That date is upon us, and there is no recount procedurein placeunder the State Supreme Court'sorder thatcomports with minimalconstitutional standards.Because it is evident that any recountseeking to meet the December 12 date will be unconstitutional orthe reasons we have discussed, we reverse the judgment of theSupreme Court of Florida ordering a recount to proceed.Seven Justices of the Court agree that there are constitutionalproblemswith the recount ordered by the Florida SupremeCourtthatdemand a remedy. The only disagreement s as to the remedy.Because the Florida Supreme Court has said that the FloridaLegislatureintendedto obtain the safe-harborbenefits of 3 U.S.C.? 5, JUSTICE BREYER's proposed remedy-remanding to theFloridaSupremeCourt for its orderingof a constitutionallypropercontest until December 18-contemplates actionin violationof theFlorida election code, and hence could not be part of an"appropriate"rderauthorizedby Fla. Stat. ? 102.168(8) (2000).82This passage is one of the most deeply puzzling in the entire opinion.And it is the portion of the opinion where the Court's attemptto giveimpartial easonsfor its actionsfails most miserably.If the choice trulywasbetween counting the votes the right way-that is, consistent with the

80. Supra note 79.81. Palm Beach CountyCanvassingBd., 772 So. 2d at 1286 n.17 (notingthat 3 U.S.C.? 5"setsDecember12, 2000, as thedatefor finaldeterminationf any state'sdisputeconcerning tselectors n order or thatdeterminationo be given conclusiveeffect in Congress");d. at 1290n.22(noting heimportance f preservingufficient imefor anelectioncontestgiven theneed "toaccommodateheoutsidedeadline et forth n 3 U.S.C.? 5 of December12,2000").Why didtheU.S. SupremeCourt miss this language,which is muchmore relevant?In the Bush v. Goreopinion,the Justice(or clerk) who wrotethe opinionaccidentally ited boththe December11case, Palm Beach County Canvassing Board v. Harris, and the December 8 case, Gore v. Harris,as 2000WL 1800752,which s theproperWestlawcite forGorev. Harris.Compare121S. Ct. at528, with id. at 530, 533. Perhaps he Courtwas actuallytrying to referto the December11opinion n its discussionof theremedyandsimplygot confusedabout heproper itation. f so, itis simplyfurther videnceof howrushed heCourtwas in deliberating verthecase andwritingits opinion.

82. BushII, 121S. Ct.at 533 (alterationn original) citations mitted).


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requirements of the U.S. Constitution-and meeting the safe harbordeadline, why does it follow that the FloridaSupremeCourt would haveinterpretedFlorida law as requiring hatthe safe harbordeadlinewas moreimportant?Why not remandto the FloridaSupremeCourt and ask themwhat the best constructionof Florida aw was given what the U.S. SupremeCourt hadjust done in Bush v. Gore? Why does the U.S. SupremeCourtthink it knows the meaningof Florida law better than the FloridaSupremeCourt?And why is it deferringto one partof the FloridaSupreme Court'sjudgment about the true meaning of Florida law-the importance ofmeeting the December 12 deadline-but not to any other?It is hard not tonotice that certainparts of the FloridaSupremeCourt'sdecisions have beenpicked out and deferred to as gospel while other parts are treated withcomplete disregard. But again, what justifies the U.S. Supreme Court'sinterpretation f Florida aw on these grounds?Given that the safe harbor rule is merely a convenience and not arequirement, it is hard to see why it should be more importantthanremedying what the Court claims to be a very serious equal protectionviolation. Indeed,weighing the two considerations he way the Courtdoestends to undermine he Court'sclaim thatthe violation was all that serious,and it makes the equal protection argument seem like a makeweightdesigned primarily o stop the recounts.Add the Court'soffhandstatementthat its decision is limited to the facts before it-so that one should notexpect the equal protection principle announced in Bush v. Gore to beappliedto anyfuturecases-and the suspicionbecomes inescapable.It is also at this point in the opinion that the spirit of the Article II,Section 1 argument-which O'Connor and Kennedy pointedly refused tojoin-seems to reemerge. The majorityappearsto believe that it would bewrong to "change" the law by creating a uniformstandardbecause the safeharbordeadlinewould not be met. But it is not clear what the problemis.The best argument,one supposes, is thatthe FloridaSupremeCourtthoughtthat the safe harborwas important.But that was before the U.S. SupremeCourtmade it impossible to meet the December 12 deadline. It is hardlyclear that the FloridaSupremeCourtwould have given the same weight tomeeting the safe harbor ollowing the U.S. SupremeCourt'sintervention.

Finally, there is the cursory claim thatJusticesBreyer andSouter reallyagree with the five-personmajority,but simply disagreeaboutthe remedy.This is somewhatakin to sayingthat two doctorsagreethat a patient s sick,butone wantsto use leeches andthe otherwantsto prescribeantibiotics.II. BUSH v. GOREAND THECOURT'S INSTITUTIONALROLE

Quite apart from the internal problems of legal reasoning in theopinion, Bush v. Gore seems troubling because of the way the Court


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performed its institutional role. The Court's intervention was notparticularly necessary, despite the Court's insistence to the contrary.Although there are prudentialargumentsfor interveningand stopping therecounts on December 12, they make sense only if the Courtwas alreadycommitted to the view thatGeorgeW. Bush should have won the election.If the results of the election were in genuine doubt, and neither candidatehad a stronger claim to legitimacy, then the argumentfor interventionbecomes unpersuasive. And if one thought that Gore was the rightfulwinner, the argumentsfor intervention are perverse. Finally, and perhapsmost importantly,the manner in which the Courtjumped into the frayplaced it in a very serious conflict of interest.It was effectively decidingwho would nominate future Supreme Court Justices at a time when theCourt was strongly divided between conservatives and liberals and thebalanceof power between themhung by a single vote.The greatYale constitutional heoristAlexander Bickel argued that theSupreme Court should use its power of judicial review prudently,preserving ts political capital for the momentsin Americanhistorywhen itwas most needed.83Bickel thus preached what he called the "passivevirtues":The Supreme Court should use proceduraldevices like the denialof certiorari o avoid deciding cases when the political branchesmight beable to work things out, especially when deciding a controversyprematurelymight endanger he Court'sreputation.There are good reasons to think that Congress could have settled thisdispute. Quite apartfrom the fact that this is Congress's constitutionallyassignedjob underArticleII andthe TwelfthAmendment,Congress passedtwo acts, one in 1845 and one in 1887, to deal with just suchcontingencies.84Moreover,one greatadvantageof having Congressdecidethe matter s thatCongressis politicallyaccountable o thepeople. If peopledo not like how members of Congress handle the matter,they can votethose members out of office. The same cannot be said for members of theSupremeCourt.Even if judicial interventionwould eventuallyhave been necessary, theCourt seemed altogethertoo eager to get involved. As noted previously, itjumped in the first time at the end of Novemberand quickly discoveredto

83. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT ATTHE BAR OF POLITICS 173, 235, 264 (2d ed. 1986); ALEXANDER M. BICKEL, THE SUPREMECOURT AND THE IDEA OF PROGRESS 94-95 (1978) [hereinafterBICKEL, PROGRESS] ("[TWheres anatural quantitative limit to the number of major, principled interventions the Court can permititself.... A Court unmindful of this limit will find that more and more of its pronouncements areunfulfilled promises, which will ultimately discredit and denude the function of constitutionaladjudication."); Alexander M. Bickel, The Supreme Court, 1960 Term-Foreword: The PassiveVirtues, 75 HARV. L. REV. 40, 75 (1961).84. Act of Jan. 23, 1845, 28 Cong. ch. 1; 5 Stat. 721; Act of Feb. 3, 1887, 49 Cong. ch. 90, 24Stat. 373. These are now codified at 3 U.S.C. ??1-15 (1994).


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its chagrin that its decision would be irrelevant.85ts December 9 stayessentially decided the election and strongly signaled that the Court hadmade up its mindaboutthe result andwas simply looking for a rationaleonwhich to rest its conclusions. And both of these interventions came notbecause of any directrightof appeal,but throughthe Court'sdiscretionarypower to grantor deny writsof certiorari.For this reason,the final wordsofthe per curiamopinionringparticularlyhollow:None are more conscious of the vital limits on judicial authoritythan are the members of this Court, and none stand more inadmirationof the Constitution'sdesign to leave the selection of thePresident to the people, through their legislatures, and to thepolitical sphere.When contendingpartiesinvoke the process of thecourts,however, it becomes our unsoughtresponsibility to resolvethe federal and constitutionalissues the judicial system has beenforced to confront.86Therewas simplynothing"unsought" boutthe Court'sactionsin Bushv. Gore. Indeed,Bush v. Gore is almost a parody of the Bickelian notion of

judicial restraint.In Bush v. Gore the SupremeCourtrestrainedvirtuallyeverything in sight: It restrainedthe Florida Supreme Court; it restrainedthe democraticprocess; and above all it restrained he counting of votes.Bickel taught that in controversial cases the Court should stay its hand,while Bush v. Gore held that in controversialcases the Courtshould hand87out a stay.The argument or restraint,however,depends on how grave a threat heconstitutionalorderfaces, and how seriouslyfundamentalrights have been

compromised.If the threat s seriousenough, the Courtshould get involved.Political capital shouldbe expended when somethingimportant s at stake.Moreover,as I arguein PartV, it is not at all clear that the Courtexpendedany political capital by deciding the case. Indeed, it may have increasedit,at least in the eyes of congressionalRepublicans.

85. DavidStrausshasargued hat the Courtwas so eager to hearthecase in late Novemberthat t misread he provisionsof 3 U.S.C. ? 5, assuming hattheyweremandatoryequirementsabouthowelectorsmustbe chosenrather hanmerelya "safeharbor."DavidA. Strauss,Bushv.Gore:WhatWereTheyThinking?,8 U. CHI.L. REV. forthcoming001) (manuscriptt 12-13,on file withauthor).Thismisunderstandings reflected n thegrantof certiorarin Bush v. PalmBeachCountyCanvassingBoard,121S. Ct.510 (2000).By thetimeof theoralargumentnBushv. Palm Beach County Canvassing Board, several Justices appearto have seen their mistake, andtheargumenthifted nstead o ArticleII, Section 1 as theconstitutionalbjection o the FloridaSupremeCourt'sdecisions.Strausssees this episode as evidencethat the more conservativeJusticeswerecastingabout ora way toend theelectionearlyon.Id.(manuscript t 13-14).86. Bush II, 121 S. Ct. at 533.87. Insteadof Bickel'spassivevirtues, heCourtadoptedwhatmightbe called the"passive-aggressive virtues." See Mark A. Graber, The Passive-Aggressive Virtues: Cohens v. Virginia andthe Problematic Establishment of Judicial Power, 12CONST.COMMENT.7, 67 (1995).


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The best prudentialdefense of the Court'sintervention s thatthe Courtsaw the election as a serious political crisis. It believed-or ratherfiveJustices believed-that the Florida Supreme Court was an out-of-controlactivist court that was trying to steal the election for Al Gore. The Courtknew that, whatever it did, it would be heavily criticized. So it decided tofall on its sword andexpend some of its politicalcapitalin orderto stabilizethe situationand save the nation.Was the Court'sdecision a statesmanlikedecision to preventan out-of-control partisan Florida Supreme Court, or was the decision itself theproductof partisanpolitics? In the previous discussion of the Article II,Section 1 argument,I showed at some length that the Florida SupremeCourt'sinterpretationswereeminentlyreasonable,even if they were not theonly possible interpretations. f so, it is hard to argue that the Court'sinterventionwas necessary.There simply was no lawless court for the U.S.SupremeCourt o counteract, ust a court thatconstrued ts own local law ina way that five Justices did not like.Moreover,if the FloridaSupremeCourt was truly a partisanbody thatwas out of control,anddetermined o handthe Presidencyto Al Gore at allcosts, several of its decisions seem puzzling. For example, it had theopportunity o throw out thousandsof absentee ballotsfrom Republicans nwhich the voters did not fill in all of the statutorilyrequired nformation.88Instead the Florida Supreme Court held that even though the statutoryrequirements isted in the FloridaElection Code were technicallynecessary,ballots that did not meet the statutoryrequirementswere not illegal. In fact,it specifically refused to adopt a straightforward eading of the ElectionCode that would have essentially guaranteeda Gore victory.89This seemslike a court devoted to the propositionthat recording voters' intentions is

88. Jacobsv. SeminoleCountyCanvassingBd.,773 So. 2d 519 (Fla.2000); Taylorv. MartinCountyCanvassingBd., 773 So. 2d 517 (Fla.2000). Voteridentification umberswere filled inbyRepublican artyworkersn violationof thestatutoryequirementhat"thepersonmaking herequest" rovide he information. LA.STAT.ANN. ? 101.62(West2000);Jacobs,773 So. 2d at521.89. SeeJacobs,773 So. 2d at 522. The Courtheldthat "[t]hestatutoryequirement"hatthepersonrequesting he absenteeballot "'must'disclose the nine items in [Fla. Stat.] Section101.62(b) (2000)]"was"simplynot a definitive tatement y theLegislaturehatrequestswhicharemissing hevoter'sregistrationumber re llegalorvoid." d.If theCourthadwanted o voidtheabsenteeballots,andsecurea victory orAl Gore,presumablyt could haveheld that heword"must"means "must."Instead, it read section101.62(b)againstanotherpart of the FloridaElectionCodewhichstated hatabsenteeballotswouldbe "illegal" f theyfailedto contain ertaininformation. ee FLA.STAT.ANN.? 101 68(2)(c)(1)(West2000). Since section 101.62(b)doesnotspecifically ay thatnonconformingbsenteeballotsare"illegal,"heycanstillbecounted. nthecourt'swords, herequirementsf section101.62(b)aredirective,butnotmandatory.d.Thatreadingmakes sense if the Court'sdrivingprinciplewas preserving he legality of as manyabsenteeballotsaspossible,eventhoughmost of thoseballotswereRepublican.


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the paramount oncern of the Florida election law. It does not sound like acourtwhose robustpartisanshiphas blinded it to all reason.90In any case, a simple thoughtexperiment, along the lines suggestedbyMichael Klarman,can help resolve the questionwhetherthe U.S. SupremeCourt's intervention is best explained by the Florida Supreme Court'spartisanshipor its own." Suppose for a moment that the positions of thepartieswere reversed.Suppose that the Floridavote had initially gone forGoreon November7, that Bush had called to concede but then retractedhisconcession, and had begun a protest and a contest of the Florida results.Suppose further that the Secretary of State was cochairman of Gore'spresidentialcampaign in Florida, and issued the same interpretationsofFlorida law as Katherine Harris did, although now to Gore's benefit.Suppose the Florida legislature, now controlled by Democrats, wasthreatening o appointits own slate of Democratelectors, egged on by theDemocratic governor of Florida, who just happened to be Al Gore'sbrother.Thensupposethat the FloridaSupremeCourtwas stockednot withDemocratsbut Republicans,and that they issued the exact same opinionswith the exact sameinterpretations f Florida aw, adoptingthe intentof thevoter standardandorderinga statewide manualrecountof ballots.Now imagine that Gore's attorney-the well-known liberal lawprofessor LaurenceTribe-appeared before the U.S. Supreme Court andargued (1) that the Court should not defer to the Republican-controlledFlorida Supreme Court because the interpretation f Florida election lawwas a federal,not a state question;(2) that the Court shouldextend liberalWa

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