The following observations are offered about the action and opinions of the Supreme Court of the United States in Bush, et al. v. Gore, et al., here (2000):
- All reference to the statutory interpretation by the Florida Supreme Court is irrelevant and should be ignored, except as an example of a pissing match between justices who have substantially differing opinions.
The Court was presented with two possible reasons the decision of the Supreme Court of Florida (FSC) should be reversed. One was an assertion that the order of the FSC was unconstitutional because it violated the equal protection clause of the Fourteenth Amendment to the US Constitution. The other was an assertion that the interpretation of Florida law by the FSC, upon which it based its determination that a further review and tabulation of ballots and votes on them was allowed, was unconstitutional because it violated the requirement that the scheme for selecting a state’s electors be set by the legislature of that state. Either reason, if agreed to by the Court, was sufficient to result in a reversal.
In general, the Court will avoid addressing issues that are unnecessary to the decision of a case. This isn’t a precise rule (it often gets broken by the Court as a whole and individual justices in particular). But when the Court can rely on an analysis that is uniquely up to the Court to apply, it tries to restrict itself to such an analysis.
Here, there is a 7-2 majority in favor of holding that the order of the FSC to review ballots for those with a ‘clear indication of intent to vote’ and then count those ‘votes’, combined with the decision to accept the already ‘reported’ totals of Dade County and Broward County, violated the equal protection clause. Such determinations are the primary purpose of the Court. For it to then attempt to determine the other issue is unnecessary, and also injects it into a question of interpretation of state law, which it is NOT uniquely constituted to handle. Indeed, a considerable portion of the various individual opinions ends up engaging in a written slugfest over what deference should be given the FSC on the issue.
Fortunately, Justices Kennedy and O’Connor avoided the whole thing in the majority opinion. We should ignore the petty dispute of the remaining justices, which reflects the ongoing tension between those who want courts to stay out of legislation and those who think courts have a duty to interpret often imprecise laws drafted by legislatures. And by the way, please note that the FSC’s interpretation was approved of by four to three (of those expressing an opinion; draw for yourself your own conclusions as to how J’s Kennedy and O’Connor felt about the issue given that the opinion of the C.J. didn’t become the majority opinion…)
- The equal protection issue is very poorly addressed by ALL the justices.
If I had offered any of these opinions as a law school exam answer, I would have seen a speed limit sign written in red when I got the answer back (and I’m NOT talking about those wonderful speed limits in places like Nebraska and Montana…). A good review of equal protection law identifies the classification which is allegedly treated differently, reminds everyone of the appropriate standard of review, reviews applicable case law, especially cases which are most analogous, then applies the relevant principles of law to the facts of the case. I defy anyone to find such an analysis in the opinions published in this case.
The majority opinion falis to analyze how the supposedly ‘disparate’ treatment from county to county actually results in a violation of the equal protection clause. Prior cases cited by the Court involve efforts either to reduce the value of votes (e.g., by diluting voting strength) or to restrict the ability to vote (e.g., putting a poll tax in place), none of which is really applicable directly. Yet, after the Court’s analysis, one is left wondering if a statewide election must be conducted by uniform processes with no variation in application in order to meet the ‘one person - one vote’ standard ennunciated in Gray v. Sanders, 372 U.S. 368 (1963) (cited with approval by the Court).
The opinion of Justice Souter assumes there is a violation based on the ‘arbitrary’ differences between standards used county by county; he draws a distinction from differing methods of voting for which there are at least understandable reasons for allowing, such as cost. But he fails to note the appropriate standard of review, so we don’t know if the Court needs to find a compelling state interest, or some lesser level of justification. He also accepts that there are differing standards without much evidence that such standards actually resulted in significatly different results in any given county, which certainly would be necessary for a finding that there was a violation of the clause in this case.
The opinion of Justice Breyer is even more full of milquetoast. Justice Breyer is only willing to say that, in these special circumstances, “fundamental fairness may well have counselled” adoption of some standard applying the concept of ‘clear indication’ to the system in question, i.e. punch-cards without a fully removed chad. How is THIS even close to adequate analysis??
The opinion of Justice Stevens asserts that the petitioners (Bush, et alia) fail to show that there was a constitutional violation here. To support this assertion, he notes that the issue has never been decided before (oh, wow, how novel, a case of first impression; like y’all don’t see that about 20 times a year…). He then analogizes the ‘clear indication’ standard with the ‘beyond reasonable doubt standard’ used by juries to determine guilt in criminal trials; apparently he thinks that looking at a ballot should be equated to deciding if, on the basis of testimony and other evidence, a person should be found guilty of a crime (you will note that the majority takes a swipe at this reasoning in its opinion). Finally, he notes that the trial judge could always adjudicate claims of disparate application of the standard. This ignores the fact that multiple judges might be handling contests filed in different courts over the results in different counties. It also ignores the fact that no one is saying that this standard is constitutionally defective per se; all those who find it impermissible do so on the basis of its application in this particular case, and the judge can’t remedy the trouble presented by Broward and Dade Counties. Excellen analysis, Justice Stevens. :rolleyes:
The opinion of Justice Ginsburg is even worse. First of all, she doesn’t say that the claimed application of the standard isn’t a violation of the equal protection clause, merely that it isn’t a ‘substantial’ violation of the clause. I wonder what she would think of an insubstantial violation of the clause as applied to, oh, say, blacks (which makes me wonder why the hell the Democrats didn’t assert the obvious; the Florida election scheme discriminates against minorites because it relegates heavily minority laden counties to imprecise methods of voting, diluting the minority vote, resulting in the whole Florida result getting tossed and possibly allowing the Senate to refuse the counting of any electors from Florida…). Then she simply notes that the imprecision of the applied standard is no different than the imprecision of the machine counts (this is acually a good argument for rejecting the remedy arrived upon by the majority, but says nothing about the constitutionality of the FSC’s order). Finally, she quotes an inapposite Supreme Court case for the proposition that states shouldn’t be required to have addressed all constitutional infirmities; let them deal with them as they come up. This from a liberal justice?
- The system contemplated by the Florida Supreme Court probably violates the equal protection clause in this case.
I reach this conclusion by application of the appropriate constitutional review, the principles ennunciated in prior cases, and some common sense.
Voting is a “fundamental right” (Reynolds v. Sims, 377 U.S. 533, 561-62 (1964)). Fundamental rights are protected by the Court applying a ‘strict scrutiny’ to any classification resulting from state action (citations way too numerable to mention). To be allowed, a state action that results in infringement on a fundamental right through disparate treatment of similarly situated groups must be necessary to solve a compelling state interest (Kramer v. Union Free School Dist., 395 U.S. 621, 626-28
(1969)).
Here, the claimed disparate treatment is the rejection of some ballots on the basis that they don’t contain ‘legal’ votes because there is no ‘clear indication’ of voter intent, when other ballots with essentially the same physical characteristics are found to show such ‘clear indication’ and are counted. If, for example, as there is some evidence actually was true, a ballot has a deep indentation in one chad, no other apparent vote for the same office exists on it, and one county will consider that ‘clear indication’ and another county won’t, that is disparate treatment of similarly situated voters. To be valid, then, there must be some compelling state interest in allowing individual counties to apply their own interpretations of this standard.
As noted by Justice Souter, this is hard to find. Indeed, the differences in application of the standard from county to county seem wholly arbitrary, that is, based not on any state interest but instead on the personal preference of the people counting the votes. One might argue that, in order to make certain that all attempts to vote legally are counted, no uniform requirements that are not in some way subjective can be formulated, so the compelling state interest is the need to identify all attempts to vote, the remedy is necessary, otherwise some such votes will be ignored. But this is a tail chasing arguement; we don’t justify disparate treatment otherwise unconstitutional by asserting we need to treat people in disparate fashion to remedy another constitutional need (or, at least, we don’t unless we are a court who is asserting that affirmative action is a valid remedy for past discrimination, but I digress). Besides, there is no reason that the standard for determining ‘clear indication’ can’t be some list of acceptable indications, such as perforations, detached corners, etc., that don’t rely upon on person’s opinion arbitrarily applied. As was shown to be the case, the actual application of the standard varied from county to county, and indeed from moment to moment in at least one county.
Further, prior case law probably requires this conclusion. As was stated in Gray v. Sanders, 372 U.S. 368(1963), the right to vote means both the right to cast the vote AND the right to have that vote counted. The Court stated in that case that, once a geographical unit for which a representative is to be selected has been established, all the electorate in that unit must have an equal vote. This standard has resulted in the disapproval of schemes weighting the value of votes (Gray v. Sanders), preventing military members from voting in counties in which they are temporarily based (Carrington v. Rash, 380 U.S. 89 (1965)), apportioning districts to make them unequal in size, diluting the value of the votes therein (Hadley, et al. v. Junior College District, 397 U.S. 50 (1970)), and requiring candidate to collect disproportionately large percentages of signatures from rural counties as opposed to urban counties (Moore v. Ogilvie, 394 U.S. 814 (1969)).
Indeed, the Moore case, cited by the majority, is a very close parallel. In it, candidates who were applying to appear on the ballot as independent electors for president were required to obtain on petitions the signatures of 25,000 residents of Illinois, which signatures had to include at least 200 from 50 of the 102 counties in Illinois. The petitioners had the requisite total, but missed obtaining the needed signatures from 50 counties. The Court, in an opinion by Justice Douglas, held that this was an impermissible restriction, because it forced the petitioners to obtain 200 signatures each from 49 counties that contained 93.4% of the population of the state and also obtain 200 signatures each from 53 counties with only 6.6% of the population. This, in the opinion of the Court, made the value of the rural voter much greater, since a rural candidate could obtain 25,000 votes from rural counties and meet the requirement, but a candidate representing urban interests could be precluded from appearing on the ballot soley from the inability to obtain the required rural signatures.
As in Moore, this case deals with potentially disparate results county to county. Indeed, Broward County recaptured many more votes than did Palm Beach County, which used a substantially different method of reviewing what was ‘clear indication’. So, it is claimed, a voter in Broward County who failed to fully punch a ballot had a significantly smaller chance of being unidentified than a voter in Palm Beach County who did the same. By application of the strict sort of rule found in Moore, if these claims are born out in fact, there appears to be an in fact violation of the equal protection clause.
Finally, let’s apply some logic to butress our thoughts. If we had a situation where there was an actual attempt to treat ballots differently, say by applying a very liberal standard to the votes in a given county in order to maximize the result for a given candidate, where all other counties had much more rigorous standards, no one would assert there was not a violation of the clause (indeed, this was the fear of the Republican party, I think). If THAT is a violation, how can the same result arrived at without malice be any less a violation?
But, I offer on caveat. There have been a lot of numbers bandied about regarding this election. I am aware of no actual proof that there was indeed a disparate impact resulting from the differing standards. However, here the FSC shot itself in the foot; it should have forced ALL counties to recount the ballots in question, and having failed to do so, it enshrined the application of different standards actually testified to at trial. As I said of that opinion, the FSC should have shut the hell up after it said “Count the undervotes.”
- The majority’s remedy for the violation of the constitution is both unnecessary and irrational.
In much the same way the FSC couldn’t resist saying too much in its opinions, the Court couldn’t just say: you have a bad standard, fix it. The determination that the FSC’s order could not be revised and the recount continued in a constitutionally acceptable fashion is both an unnecessary determination, and an irrational one as well.
The majority incorrectly assumes that the Dec. 12 date is a date by which electors must be appointed for the state electorate to ‘fully participate in the process’ of selecting a president. First of all, let’s dispense with the transparent attempt to pin this concept on the Florida Supreme Court. The FSC, in its opinion in Palm Beach County Canvassing Board v. Harris, issued 11/21/00, said, “Ignoring the county’s returns is a drastic measure and is appropriate only if the returns are submitted to the Department so late that their inclusion will compromise the integrity of the electoral process in either of two ways: (1) by precluding a candidate, elector, or taxpayer from contesting the certification of an election pursuant to section 102.168; or (2) by precluding Florida voters from
participating fully in the federal electoral process. {citation to 3 U.S.C. §§1-10}” This is a FAR cry from the assertion by both the majority and the Chief Justice that the FSC was stating that the Florida legislature intended that the selection of electors be complete by Dec. 12. This bit of out-of-context quotation and intellectual dishonesty does the Court absolutely nothing positive for its image.
Further, it is inconceivable that the Florida legislature, in setting the statutory scheme for selecting electors, anticipated the extensive litigation, not to mention the selection of an apparently unconstitutional remedy, that has followed this election. To assert with a straight face that the legislature intended ANY result from the election to be final by Dec. 12 regardless of what might have happened after the election is absurd, nor is it supported by any citation to other authority than the supposed assertion of the FSC to that effect, which we have shown was not that at all.
Actually, the system in place, as interpreted by the FSC, would, in the future, likely result in completion of the process by the safe-harbor deadline. But even if it didn’t, that wouldn’t mean that the legislature didn’t intend that the system be used to establish SOME electors, as Hawaii did in 1960. Further, as we are seeing here, the legislature can always attempt to take back its duty to select electors, an attempt that would be resolved by political processes. So, the reversal in this case is not necessary, either under the statutes, or under application of reason.
The remedy decided upon by the majority also is irrational. In the absence of any review of the ballots with no previously recorded vote for president, the results of the election will be based upon the admittedly incomplete tally of votes that was certified on Nov. 26 by the Secretary of State for Florida. These totals do not include admittedly legal votes. Who admits they are legal? The COURT does, that’s who, since it refuses to overrule the FSC on its determination that the definition of ‘legal’ vote includes at least some votes not previously tallied in Dade County, among other counties. So, to remedy the unconstitutional problem presented by potentially counting votes using different standards from county to county, the Court returns the election to results that don’t include already positively identified but uncounted legal votes. This irrational result is justified only by the fact that the outcome hasn’t been ‘sullied’ by the application of differing standards; please ignore the fact that it totally disenfranchises legitimate votes without establishing that this is necessary to remedy a compelling state interest. And who among those on the Court would really be willing to assert with confidence that the Florida legislature intended that their election result be tainted by the premature truncation of the process simply to make sure Congress can’t challenge the electors eventually certified after a constitutionally valid method of resolving exactly who was selected?
- The result gives the appearance of being result-oriented.
In my opinion, there is no greater disservice an action by the Court, or any reviewing court, can do than creating a reason to reach a given result, rather than reaching a result after due consideration of the law, as interpreted by the justices. Yet, here, the lack of cogent, complete analysis of the constitutional question gives one the impression that the justices were making it up as they went along, unwilling to actually look at the law for fear of reaching a contrary conclusion. Hell, the dissenters to this determination are just as bad, since their weak legal analysis leaves one thinking that neither of them is really committed to the concept that the law actually DOES invalidate the order of the FSC. Then, the application by the majority, a bare majority of five justices, deserted by two justices who agreed a violation existed, of an irrational remedy, which is based on an unnecessary and irrational reading of the relevant statutes (after what was, at least, a reasonable decision to that point), weakens what might have been a very acceptable 7 - 2 or 6 - 3 result.
Finally, of course, the fact that the fault line dividing the Court on this issue turns out to run along the ideological division between the committed conservative justices, and the more liberally-oriented justices, reminds everyone of the result in 1876, when the 8-7 decisions of the Electoral Commission followed similar ideological lines. Ammunition for those who think that the result was ‘fixed’; grist for the Democratic mill for the next four years.
