Were there adequate state grounds in Bush v. Gore?

• Author: Wells, Michael L.
• Position: Supreme Court review of state court decisions

Few Supreme Court decisions provoke the immediate and intensely negative verdict that law professors passed on Bush v. Gore. (1) It usually takes some time for scholars to digest the opinions, reflect on the majority's reasoning, and render considered judgments. Not so in this case. Within a few days of the 5-4 ruling that halted the recounting of votes for presidential electors in Florida, the decision drew withering criticism from scholars across the ideological spectrum. Akhil Amar lamented in the Los Angeles Times that he must now tell his students not to put their trust in judges, even though he considers himself "a friend of the U.S. Supreme Court and of many of its current justices"; (2) Jeffrey Rosen called the decision a "disgrace" on the cover of the New Republic; (3) and Herman Schwartz accused the Court of "trampl[ing] on ... [b]asic principles of adjudication." (4)

Some of the criticism is deserved. (5) Professor Amar made a powerful case against the majority's ruling that the recount ordered by the Florida Supreme Court violated the equal protection clause for failure to use uniform standards throughout the state. Amar pointed out that vote counting standards vary from locality to locality all over the nation, that they always have, and that the Court could cite no precedent to support its equal protection theory. Others have questioned whether the ruling rests on any general principle at all, given the care the Court took to limit its reasoning to the extraordinary circumstances of the Florida presidential election. (6) Even Michael McConnell, a well-known conservative scholar, was troubled by the implications of the holding. By reaching the equal protection issue, the Court evidently accepted the notion that recounts were appropriate in connection with the election contest. Yet the Court put a stop to the recount that was underway. McConnell observed that "[t]he court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed." (7)

It is all too easy to leap from this well-founded critique of the Court's reasoning to the conclusion that the majority--all of whom were appointed by Republican presidents--were bent on installing George W. Bush in the White House by any means they could find, and that the holding rests not at all on law but solely on naked politics. (8) Putting aside the majority's reasoning, a better ground on which to defend Bush is that the Florida Supreme Court (the "Florida Court") violated article II, [section] 1, clause 2 of the Constitution, which provides that "[e]ach state shall appoint, in such manner as the legislature thereof may direct, [presidential] electors." (9) In a concurring opinion, Chief Justice Rehnquist, joined by Justices Scalia and Thomas (the "plurality"), advanced an argument along these lines, and the four dissenters devoted parts of their opinions to refuting it. Though the plurality grasped the basic issue in Bush, it did not make the best case for reversal. The dissenters understandably responded only to the plurality's weak arguments and not the stronger ones that should have been marshaled for reversal.

The Chief Justice was right to be concerned about article II, but committed a critical error in his treatment of the "adequate and independent state ground" doctrine. The plurality was confronted with a state court opinion that did not purport to rely on federal law. If we leave equal protection out of the analysis (as I do throughout the remainder of this article), the threshold question is how one justifies the Court's exercise of jurisdiction, for state courts are sovereign over matters of state law. The general rule is that the Supreme Court may review a case from a state court unless the state court judgment rests on an adequate and independent state ground. The plurality rightly found that, despite the Florida Court's failure to address federal article II issues, there was not an adequate state ground here.

But the plurality was right for the wrong reason. The "adequate state ground" doctrine is complex and sophisticated. It consists of not one but four principles for determining adequacy, with the choice among them depending on the relation between federal and state law in the case at hand. The plurality confused two of its branches and placed Bush in the wrong doctrinal category. Worse, the category in which the plurality put the case demands a stronger showing to justify Supreme Court review than the one to which Bush should have been assigned. The plurality cited cases which hold that the state ruling should stand unless the state court distorted state law in order to evade federal protections. The proper rule for Bush is that the state court's reasoning deserves no deference. The existence of a federal constraint on state court authority, such as article II, is sufficient to justify intervention. As a result of Rehnquist's miscue, the dissenters had little difficulty in rebutting the plurality's justifications for review. Had Rehnquist advanced the more compelling arguments for Supreme Court review that were available to him, the article II challenge could not have been rebuffed with such ease.

While my argument that the plurality and the dissents went astray in their treatment of the adequate state ground doctrine bolsters the result in Bush, it does not necessarily imply that the plurality was right on the merits. Whether the state grounds could withstand scrutiny under the proper test is a separate question from whether the Justices used the right test in the first place. My focus is on the latter issue. As far as the analysis in this paper is concerned, the Florida Court's judgment may still be defensible.

I

Chief Justice Rehnquist began by acknowledging that "[i]n most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law." (10) But that principle did not apply to Bush, because this was not an ordinary state law case. Federal law is also relevant to its disposition, for article II--with its command that "the Legislature ... direct[s]" (11) the manner of choosing electors--is one of "a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government." (12) Therefore, "the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance." (13) A "significant departure" from that text by the Florida courts "presents a federal constitutional question." (14)

Having identified a federal interest at stake in the case, the plurality proceeded to invoke the doctrine on Supreme Court review of the adequacy of state grounds. It cited a number of cases in which the state court relied on state law, yet the Supreme Court reviewed and overturned the judgments. The general principle underlying such cases is that, in the event a ruling on state law has adverse impact on a federal right, "the Constitution requires [the] Court to undertake an independent, if still deferential, analysis of state law." (15) The plurality identified two major problems with the decisions of the Florida Court. First, the Florida Court had taken away authority that the election statute assigned to other officers, including the Secretary of State and the local canvassing boards, to determine when and for what purpose hand recounts would be undertaken. (16) Second, the Florida Court justified its intervention by broadly reading the statutory term "legal vote" as imposing an obligation on election officials to count ballots that the voting machines could not read. Rehnquist countered that the Florida statutes place the responsibility upon the voters to ensure that the machines can read their votes. Hence, "[n]o reasonable person" could find that a contest should succeed "when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify." (17) In ruling differently, the Florida Court had rejected the Secretary of State's interpretation of the statutory provisions, though Florida law requires it to defer to her on such issues. (18)

Four members of the Court dissented from the judgment, and all of them took the time to address the plurality's theory of the case as well. The dissenters accepted the plurality's view that the key issue was the scope of Supreme Court review of the state law grounds on which the Florida judgment rested, but each of them found fault with Chief Justice Rehnquist's reasoning. Though they emphasized different aspects of the case, they all made the same point: While the Florida Court's reasoning could be faulted, it did nothing out of the ordinary. (19) The Florida Court engaged in the kind of legal reasoning that is typical of courts, (20) and the Supreme Court should not interfere with its rulings on issues of state law. (21)

All seven justices who addressed the relevance of article II took the wrong doctrinal path. As a result, none of them focused their attention on the constitutional issue that needed to be addressed in order to determine whether the Florida Court acted properly. In particular, the plurality's error in resorting to a particular group of "adequate state ground" cases deflected attention from the question of whether the Florida Court's ruling was compatible with article II, and enabled the dissenters to avoid that issue as well. The mistake is understandable, for all concerned were under tremendous time pressure, the Florida Court did focus on state law, and the case raises a novel constitutional issue. The Justices were dealing with an aspect of Supreme Court review doctrine that rarely arises in litigation and has never received sustained attention from the Court. Anyone can make a mistake about the...