# Bush v. Gore -- Constitutional Principle? **URL:** \ **Category:** Factual Questions\ **Created:** [January 18, 2003, 4:28pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486 "2003-01-18T16:28:09Z")\ **Posts on this page:** 16\ **Page:** 2
**Author:** ![brianmelendez](https://avatars.discourse-cdn.com/v4/letter/b/65b543/32.png) [@brianmelendez](https://boards.straightdope.com/u/brianmelendez)\ **Post date:** [January 19, 2003, 8:00pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/21 "2003-01-19T20:00:48Z")
> [@](#): > > \*Originally posted by brianmelendez \* > \*\*Not even a state constitution can deprive a legislature of a right that the Federal Constitution explicitly confers. This principle was established during the Progressive movement, when some states passed laws providing that their ratification of a constitutional amendment–a right that the Federal Constitution reserves to the legislature–was not effective until confirmed by a popular referendum. \*\* The case that I was thinking of is Hawke v. Smith, 253 U.S. 221 (1920). The Supreme Court of the United States held that: “The only question really for determination is: What did the framers of the Constitution mean in requiring ratification by ‘legislatures’? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A Legislature was then the representative body which made the laws of the people. . . . There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the Legislatures of the states. When they intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose. . . . The Constitution of Ohio in its present form, although making provision for a referendum, vests the legislative power primarily in a General Assembly, consisting of a Senate and House of Representatives. Article 2, section 1, provides: ‘The legislative power of the state shall be vested in a General Assembly consisting of a Senate and House of Representatives, but the people reserve to themselves the power to propose to the General Assembly laws and amendments to the Constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.’ The argument to support the power of the state to require the approval by the people of the state of the ratification of amendments to the federal Constitution through the medium of a referendum rests upon the proposition that the federal Constitution requires ratification by the legislative action of the states through the medium provided at the time of the proposed approval of an amendment. This argument is fallacious in this–ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment. . . . It is true that the power to legislate in the enactment of the laws of a state is derived from the people of the state. But the power to ratify a proposed amendment to the federal Constitution has its source in the federal Constitution. The act of ratification by the state derives its authority from the federal Constitution to which the state and its people have alike assented.” ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 19, 2003, 8:14pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/22 "2003-01-19T20:14:56Z")
> [@](#): > > \*Originally posted by brianmelendez \* > Not even a state constitution can deprive a legislature of a right that the Federal Constitution explicitly confers. The US Constitution confers the right on the states, but _not_ specifically on the state _legislatures_. The way a state deals with it is up to the state. If a state in turn delegates the right to the people by vote, via the state constitution, that is not in violation of the US Consitution or the supremacy principle in particular. Your case cite seems to refer to amendments to the US Constitution, not Florida’s, btw, so does not address the point. The laws of Florida and their compliance with the _Florida_ Constitution is a matter for the _Florida_ Supreme Court to arbitrate, of course, not you or I or the US Supreme Court. Certainly if the legislature were to try to nullify the state laws establishing the voting process after the election, the court would most certainly have ruled on such an attempt to “change the rules after the game was over”, to use a popular phrase from the time. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 19, 2003, 8:18pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/23 "2003-01-19T20:18:08Z")
Might want to double-check your Constitution, Elvis: > [@](#): > > Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 19, 2003, 8:41pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/24 "2003-01-19T20:41:35Z")
And the Florida legislature directed, via various laws, that the manner would be by popular vote. So? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 19, 2003, 8:59pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/25 "2003-01-19T20:59:25Z")
So you were wrong when you stated “The US Constitution confers the right on the states, but _not_ specifically on the state _legislatures_.” ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 19, 2003, 10:17pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/26 "2003-01-19T22:17:50Z")
Yes, that was wrong because it was incomplete, not having extended the chain of command all the way. The right of the people to choose electors is guaranteed only by state law, not by state constitution. Happy? But to change that law after an election would violate the _ex post facto_ principle, binding on the states because it is binding on the US, and would also nullify the Florida Legislature’s attempt to repeal it. C’est vrai? If that was tried anyway, certainly the Florida Supreme Court would have had to rule on the matter. The folks arguing that the Florida Legislature would have acted partisanly also generally claim that the FSC would have done so (yes, I know this isn’t GD, can’t avoid it) - so the political-pragmatism argument regarding the Legislature also falls apart. I understand also (and request correction otherwise, thanks), from the “one man, one vote” cases the Warren Court decided in the Sixties, that the state legislatures _cannot_ revoke the people’s right to vote once it has been delegated to them by the legislatures. Bottom line: The argument that the FL Legislature could just have picked Bush anyway is bogus, as stated previously. ---
**Author:** ![Amok](https://avatars.discourse-cdn.com/v4/letter/a/f17d59/32.png) [@Amok](https://boards.straightdope.com/u/Amok)\ **Post date:** [January 20, 2003, 1:18am UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/27 "2003-01-20T01:18:56Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > > But to change that law after an election would violate the _ex post facto_ principle, binding on the states because it is binding on the US, and would also nullify the Florida Legislature’s attempt to repeal it. [According to Cecil](http://www.straightdope.com/classics/a5_127.html), from a column on the validity of the 16th Admendment, “[t]he ban on ex post facto laws refers only to criminal matters”. ---
**Author:** ![brianmelendez](https://avatars.discourse-cdn.com/v4/letter/b/65b543/32.png) [@brianmelendez](https://boards.straightdope.com/u/brianmelendez)\ **Post date:** [January 20, 2003, 3:00am UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/28 "2003-01-20T03:00:02Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > \*\*Yes, that was wrong because it was incomplete, not having extended the chain of command all the way. The right of the people to choose electors is guaranteed only by state law, not by state constitution. \*\* This subthread has now worked its way back to the point that Elvis was trying to rebut: “The suggestion during the disputed count in Florida in 2000 was that the Florida Legislature (both houses of which were under Republican control) could simply pass a new law appointing the Republican electors–regardless of what the courts concluded about the outcome of the popular vote–which would override the earlier law providing for a popular vote.” But there is a world of difference between a constitutional guarantee and a mere statute, which can be amended at any time, and can hardly be described as a “guarantee” at all. The Florida law providing for appointment of the state’s presidential electors by popular vote was even more vulnerable after the November 2000 election because one political party controlled the entire machinery for amending the statute. > [@](#): > > **But to change that law after an election would violate the _ex post facto_ principle, binding on the states because it is binding on the US, and would also nullify the Florida Legislature’s attempt to repeal it. C’est vrai?** The prohibition in the United States Constitution against bills of attainder and ex post facto laws applies only to criminal statutes. The Ex Post Facto Clause prevents the government from imposing criminal liability after the fact (“ex post facto”) for conduct that was lawful at the time. Other kinds of legislation can, and often do, operate retroactively; the Congress or a state legislature can establish a new right or remedy, or impose a new duty or liability, with retroactive effect. For example, the Congress can pass a law tomorrow amending the tax code with respect to income earned last week. Such a law is nevertheless constitutional. Likewise, the Florida Legislature passing a new law appointing the Republican electors, and thereby overriding the earlier law providing for a popular vote, would not have violated the Ex Post Facto Clause. It may be subject to other constitutional objections, but the Ex Post Facto Clause is not one of them. > [@](#): > > **I understand also (and request correction otherwise, thanks), from the “one man, one vote” cases the Warren Court decided in the Sixties, that the state legislatures _cannot_ revoke the people’s right to vote once it has been delegated to them by the legislatures.** Untrue. The one-person-one-vote cases involve legislative and congressional apportionment. They stand for the proposition that, under any districting scheme, each voter must enjoy a share of the franchise equal to that enjoyed by each other voter. Some cases do imply that a state legislature must be elected, but no such case has ever suggested that a state’s presidential electors must be appointed in any particular manner, let alone that a law providing for their appointment by popular vote becomes irrevocable. > [@](#): > > \*\*Bottom line: The argument that the FL Legislature could just have picked Bush anyway is bogus, as stated previously. \*\* Q.E.D. This point still has not been supported by any constitutional, statutory, or judicial authority on this thread. There are theoretical constitutional objections available to a state legislature intervening in the appointment of Presidential electors by popular vote. But those objections are untested at best. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 20, 2003, 3:43am UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/29 "2003-01-20T03:43:55Z")
Sheesh, people really ought to look stuff up instead of just depending on 2-year-old memories. First, the state legislature DOES have authority to appoint its own presidential electors . . . IF the electors have not managed to be chosen through the manner prescribed by statute and by the statutory deadline. [3 U.S.C. § 2](http://caselaw.lp.findlaw.com/casecode/uscodes/3/chapters/1/sections/section_2.html). Second, as the Rhenquist concurrence helpfully points out, [3 U.S.C. § 5](http://caselaw.lp.findlaw.com/casecode/uscodes/3/chapters/1/sections/section_5.html) provides a “safe harbor” for electors determined according to pre-existing law. While this does not prohibit the state legislature from choosing its own electors, doing so would permit Congress to reject those electors, if it so chose. (Where Rhenquist et al. went of the track was in concluding–contrary to hundreds of years of legal theory and judicial determinations–that a court’s de novo _interpretation_ of a statute amounted to “changing” a statue.) ---
**Author:** ![kniz](https://avatars.discourse-cdn.com/v4/letter/k/c37758/32.png) [@kniz](https://boards.straightdope.com/u/kniz)\ **Post date:** [January 20, 2003, 4:05am UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/30 "2003-01-20T04:05:30Z")
In case some of you don’t know, **Minty Green** is a lawyer. I say that just in case it may factor into your decision to argue with him on legal matters. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 20, 2003, 4:09am UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/31 "2003-01-20T04:09:12Z")
Piffle. I have to look this stuff up too, **kniz**. I just know where to look. 😉 ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [January 20, 2003, 4:26pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/32 "2003-01-20T16:26:29Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > The ruling ignored the initial inequities, and declared that differing corrective actions were inequitable in themselves. Actually the ruling did address that issue. And what it said, IIRC, was that a _State_ entity had to apply its ruling equitably for all in the state. A local entity would similarly have to be equitable within the area of its jurisdiction. But if different local entities chose different standards that would not be a problem. So the initial inequities - arising out of the disparate actions and decisions of local election boards - were OK. But the subsequent attempt by the Florida SC to enact a statewide recount with differing local standards was not. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 20, 2003, 5:46pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/33 "2003-01-20T17:46:20Z")
**IzzyR** , the FSC was, IIRC too, heading toward using _uniform_ standards statewide, as I said, not “differing local standards” as you said. Differing local standards are the source of the problem. I hold by the assessment that The Five used the language of equal protection to affirm unequal protection. Thanks for the enlightenment, **minty green** - you’re not only a lawyer, but you’re one of the good ones :). Funny you mentioned the “safe harbor” clause - that was used to create the false impression that electors had to be chosen by 12/12, preventing any possibility of the statewide recount being performed in time. So even though Rehnquist was right in mentioning it, he was wrong in applying it, no? **kniz** , IMHO just as war is too important to be left to the generals, so is the law too important to be left to the lawyers, and so is democracy too important to be left to the politicians. **brianmelendez** , the OP thread is about the basis of the SCOTUS ruling. You and I have been discussing what-ifs, and perhaps we’d better steer clear of Manny while in GQ. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 20, 2003, 6:18pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/34 "2003-01-20T18:18:38Z")
> [@](#): > > Thanks for the enlightenment, minty green - you’re not only a lawyer, but you’re one of the good ones . Funny you mentioned the “safe harbor” clause - that was used to create the false impression that electors had to be chosen by 12/12, preventing any possibility of the statewide recount being performed in time. So even though Rehnquist was right in mentioning it, he was wrong in applying it, no? First, let me add that I too appreciate the elucidation as to what the law actually _is_ regularly contributed to threads here and in GD by **minty** , and by **Sua Sponte, Bricker, Dewey, Jodi** and several other Dopers-at-the-bar. No, Rehnquist was not “wrong in applying it” for the very good reason that he’s a Justice of the Supreme Court rendering his opinion on the law – his privilege and duty, and if he can get four other justices to agree with him, his opinion becomes the law of the land until and unless overturned by a later SCOTUS decision or a constitutional amendment. Whether or not his legal reasoning was _sound_ is a quite different question that belongs in GD (I tend to agree with what you imply, **Elvis** , FWIW – but unfortunately WJC and GWB have not seen fit to nominate me to a SCOTUS seat, so my opinion does not count.;)) However, I for one would appreciate explication of how Rehnquist factored in the 12/12 deadline for unchallengeable certification, since the issue has come up. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [January 20, 2003, 6:25pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/35 "2003-01-20T18:25:14Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > the FSC was, IIRC too, heading toward using _uniform_ standards statewide, as I said, not “differing local standards” as you said. Well the USSC disagreed with this. Read the opinion, beginning page 6 (15). > [@](#): > > Differing local standards are the source of the problem. As I mentioned earlier, the opinion addressed this, on page 12 (21) of the [opinion](http://www.counselpress.com/pdfs/cp_brief_presidential_election.pdf). > [@](#): > > ]The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide re-count with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 20, 2003, 6:45pm UTC](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486/36 "2003-01-20T18:45:26Z")
> [@](#): > > \*Originally posted by ElvisL1ves \* > Funny you mentioned the “safe harbor” clause - that was used to create the false impression that electors had to be chosen by 12/12, preventing any possibility of the statewide recount being performed in time. So even though Rehnquist was right in mentioning it, he was wrong in applying it, no? Yes and no. The Florida SC had already stated that meeting the deadline was an important goal under the state’s statute for choosing presidential electors. Given that determination of state law, it was appropriate for Rhenquist to rely on that determination. However, the FSC had not stated _how_ important it was for the electors to be chosen before the 12/12 safe harbor deadline. In fact, it’s quite possible that Florida law might be that it is _more_ important to have an accurate vote count than it is to meet the federal safe harbor deadline. The majority–with no basis in any established Florida law-- implicitly decided that the deadline trumped obtaining an accurate count. That decision, IMHO, was incorrect. It should have been remanded to Florida for determination of that question. [Previous page](https://boards.straightdope.com/t/bush-v-gore-constitutional-principle/149486.md?page=1)