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Pretending That Bush v. Gore Is Constitutional Law


6 CA has ruled that Ohio’s 2000 election procedures violated the equal protection clause, based (among other arguments) on the Supreme Court’s innovations in equal protection doctrine. As some of you may remember, this is not the first time that a court has applied Bush v. Gore is if actually constituted a legal opinion; a 9CA panel did so during the California recall, although it was later reversed by an en banc. As the 6CA majority noted, the district court logically held that in light of Bush v. Gore‘s claim that the fundamental nature of the right to vote “lies in the equal weight accorded to each vote and the equal dignity owed to each voter,” that the arbitrary vote dilution of Ohio’s procedures violation of the equal protection clause.

This opinion, and the dissent which all but concedes that Bush v. Gore should not be taken as articulating a legal principle at all, reminds me of Mark Tushnet’s essay “Renormalizing Bush v. Gore: An Anticipatory Intellectual History” (Georgetown Law Journal, 90: 133 (2001)). After discussing some of the strategies that future legal scholars would use to rationalize the transparent lawlessness of Bush v. Gore into legal doctrine, Tushnet concludes:

A final technique of renormalization is in some ways the most interesting. It involves the generalized invocation of rule-of-law norms, typically in the form of assertions that the Supreme Court’s decision, while perhaps incorrect, nonetheless deserves respect because the Court is our nation’s voice of the law. The qualification in the preceding sentence is important. A decision can be justified by the rule of law standing alone only if there are no other reasons justifying the decision. That is, rule-of-law ideas have force only when someone who disagrees with a decision is asked to accept it nonetheless. Not surprisingly, this creates something of a psychological difficulty, related to, but not quite the same as, the phenomenon of cognitive dissonance. People find it hard to think that decisions with which they disagree are nevertheless justified. People also find it hard to give up on the ideal of the rule of law. The outcome is predictable. As time passes, people come to think that the decisions with which they initially disagreed were actually not wrong. I think we can expect to see, and I think reasonably soon, progressives asserting that, as a matter of fact, Bush v. Gore was correctly decided.

As indeed it was. After all, the equal protection doctrine the case articulated can certainly be turned to progressive uses. We can, and should, take the case as another in a long line of decisions by political actors–a category that includes judges–expanding and protecting the expansion of the franchise. Some of us may retain a lurking, or even overt, sense that the Justices who joined the majority opinion in Bush v. Gore did not see the case in those terms and that those Justices were motivated by narrow partisan concerns. Still, the case is there to be used by progressives in the future. And that, to conclude, would be another vindication of a different critical legal studies claim, this one about the indeterminacy of legal doctrine.

Absolutely right, and so is the Sixth Circuit. The Supreme Court has announced that there is a fundamental right not to have one’s vote diluted, a right clearly violated by Ohio’s 2000 election procedures, as well as those of all states that allow some individuals to have their votes diluted by less reliable voting machines or arbitrary recount procedures. Whether or not this decision was right in the first instance, lower courts should apply the principle. There is no reason, conversely, to be bound by the B. v. G 5’s lawless “minimalist” dictum that “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”; it is the responsibility of lower courts to sort through these complexities, and faithfully apply the precedent to cases in which there is vote dilution inherent in state election procedures. The rule of law demands no less. To paraphrase Michael McConnell, is the bottom of the slippery slope so bad? Reforming the country’s egregiously irrational electoral system would certainly be a good outcome.

There is another upside to taking Bush v. Gore seriously, in that it would put the 5 justices [well, yes, actually only 3, although it will be fun to see Bush’s appointments squirm too–ed.] who disgraced themselves in 2000 into a delicious bind, like George Costanza driving Susan’s parents to his fictional house in the Hamptons. Either they can allow lower courts to apply the precedent with some measure of logic, or they can take a case and admit that the case was not constitutional law in any relevant sense at all. I say we get to it…

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