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The Article II Defense of Bush v. Gore

[ 9 ] November 29, 2010 |

On the Twitter today, Jacob Levy made the half-defense of Bush v. Gore perhaps most commonly made by smart people: the majority opinion was indefensible, but the outcome is not, because the Rehnquist concurrence (arguing that the Florida courts violated the provision of Article II that the “State shall appoint [electors] in such Manner as the Legislature thereof may direct”) was persuasive.*

I actually think something like the opposite is true. In the abstract, the holding that the arbitrary differences in ballot-counting found in the Florida system violated the equal protection clause is not entirely unreasonable. There’s no real precedent for it, it’s especially inconsistent with the typical conservative interpretations of the 14th Amendment, and the way in which the majority applied the alleged holding was so flagrantly unprincipled it approached lawlessness, but the holding itself is not inconsistent with the text, structure, or purpose of the 14th Amendment.

The Rehnquist concurrence, though, is just specious on its face. As Ginsburg pointed out in her dissent, the fact that Article II gives state legislatures (as opposed to courts) the authority to regulate presidential elections doesn’t in itself say anything about the legitimacy of the actions of the Florida Court — “The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature’s enactments.” (Indeed, the majority opinion did just that when it assumed that the Florida legislature intended to take advantage of the “safe harbor” provision to justify shutting down the recount.) So if the argument is to hold water, Rehnquist has to show that the Florida Supreme Court’s decision distorted Florida law to such an extent that it was not engaging in jurisprudence at all. This is a radical argument that places a very high burden of proof on the United States Supreme Court.

Given the law that is being construed, however, this is a frankly ridiculous claim. The statute governing contested elections specifically gave the courts the authority to “provide any relief appropriate under such circumstances.” There may be extreme circumstances in which a state court might distort state law to such an extent that it could be usurping the will of the legislature. But surely a case in which the legislature broadly delegated the ability to provide remedies to the courts cannot be one of them.

There are many things one can criticize O’Connor and Kennedy for when it comes to this case, but the failure to join the Rehnquist concurrence isn’t one of them. It did not constitute a remotely adequate defense of a federal intervention into the electoral dispute in Florida.

*In comments, Jacob notes that “My claims were more modest: “colorable” and “credible”– not “correct” or “persuasive” or “adequate.””  Point taken, although I think “credible” and “adequate” are essentially the same thing.

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  1. My claims were more modest: “colorable” and “credible”– not “correct” or “persuasive” or “adequate.”

    If the court hadn’t given up on the republican guarantee clause a century and change ago, we might by 2000 have had some jurisprudence sorting out the meaning of constitutional references to state governments. But there is at least a prima facie difference between a textual reference to a state government and a textual reference to a state legislature.

    And I do think that difference is enough to say that the Rehnquist does *not* have “to show that the Florida Supreme Court’s decision distorted Florida law to such an extent that it was not engaging in jurisprudence at all.” If Article II mandates a different-from-constitutionally-usual relationship between the state legislature and the state courts in the eyes of the federal courts (colorable), then there might be a lower bar for the federal courts to reach their own reading of state legislative intent than usual. Again: not saying finally persuasive, just saying that it’s more plausible than the majority opinion which, if taken seriously, would mean that effectively every statewide election in the US is unconstitutional.

    Finally: the conservative 3 were somewhat deferential to state legislatures, tending to side with them against Congress, against federal courts, and against private parties; this was the modest “Rehnquist Revolution” in federalism. The concurrence in Bush v Gore thus had at least some basic connection to their various constitutional visions. The majority opinion is so transparently at odds with those three justices’ other jurisprudential views that you can just about hear them shouting “we don’t mean it!” and “we’re lying” as you read their names on the opinion.

    • Scott Lemieux says:

      But the fundamental problem is that there can’t be “deference” to the state legislatures when the legislature didn’t actually establish a policy. Actually, it’s worse than that: the policy established by the legislature was to let the courts sort it out. Hence, Ginsburg’s argument is considerably more deferential. And I just don’t see how applying the procedures established by the legislature can violate constitutional provisions requiring election policy to be set by state legislatures. (By the way, how does Katherine Harris’ crucial decision-making role fit in here? Doesn’t your logic also apply to the executive branch? If so, how could she have been permitted to have the discretion to certify the results?)

      If I understand your argument on Twitter, a counterargument is that Article II actually prohibits this delegation. The first response is that this isn’t what Rehnquist argued — he didn’t say the state’s contest phase was unconstitutional, he said that the court distorted it. This isn’t dispositive — as Posner says, most defenders of Roe don’t believe that they have to endorse Blackmun’s specific opinion. But this kind of nondelegation route would create a lot of the problems a more honest application of the equal protection holding would have — litigation in many future disputed elections, and obvious problems with the remedy. (If the legislature’s contest procedures are invalid, what are the contest procedures? How can the pre-contest vote be valid when initial challenges were based on assumptions made by all concerned parties that there would be a contest.) If you’re going to go down that road, you might as well just go with the 14th Amendment argument, which is more clearly rooted in the text anyway.

  2. wengler says:

    No matter what arguments the majority used in their unsigned opinion, the framing was based on a highly cynical and UNTRUE claim that there needed to be a resolution of the Florida counting by an arbitrary date in the middle of December.

    I don’t think they were particularly concerned by what legal principle there were basing it on, as noted at the end of the unsigned opinion, the ruling in Bush v. Gore does not create precedent for future rulings. Anyone arguing particular points of the opinion are on a fool’s errand.

  3. Part of my claim is that the Article II view wouldn’t have come with that “we’re committing fraud here” disclaimer, which attached only to the majority opinion.

    That said: Scott, I do think that you’re right that ultimately legislative-executive issues would have made the nondelegation view unworkable, and if it doesn’t work there, it can’t be carried over to the judiciary either.

    • L2P says:

      My takeaway is that you’re saying the Article II argument is wrong, but not laughably wrong. A judge would have to regretfully deny the Rule 11 request and say that the lawyer made a good-faith argument, despite the lack of any meaningful support for the position.

  4. gocart mozart says:

    If the Florida recount violated Article II then logically would not every presidential election (and most every statewide election) since G. Washington also be unconstitutional? Different states have always had different methods of counting votes. A few years ago CT had the new laser scanner voting in some places while other counties had the old mechanical flip switch system. OMG! Lieberman’s re-election was a fraud!

    • Scott Lemieux says:

      This actually applies more to the majority ruling. Every presidential election has violated the 14th Amendment if one takes the majority reasoning seriously, whereas Article II has only been violated when another branch has been involved in resolving a disputed election.

  5. rea says:

    If Article II really makes the state legislature the sole and final decision-maker with respect to the state’s electoral votes, and bars the courts from any involvement in the matter, then WTF was Rehnquist doing issuing an opinion in this case?

  6. Joe says:

    Red flag in the concurrence:

    “Surely when the Florida Legislature empowered the courts of the State”

    “Surely” in this context means “not really, but to assume so, we will use a strong adverb.”

    And, stop calling me Shirley!

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