Election Law

• Author: Edward B. Foley
• Pages: 41-48

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Election Law

EDWARD B. FOLEY

The author is theEbersold Chair in Constitutional Law at The Ohio State University, where he also directs its election law program.

It’s been nearly 20 years and a lot has happened since then.

On Tuesday, December 12, 2000—exactly five weeks after that

year’s Election Day—the U.S. Supreme Court issued its decision

in Bush v. Gore, transforming election law and ushering in two

decades of intense litigation over the voting process that shows

no signs of abating. Ironic, perhaps, for a decision explicit that

its “consideration” was “limited to the present circumstances”

and thus intended to have only narrow, if any, precedential effect.

But no opinion gets to control how it is used by subsequent

courts and litigators. Lawyers for candidates in campaigns ever

since Bush v. Gore have been exploiting that case as an illustration

of what judges can do if they are willing to intervene in an elec-

tion dispute and settle the rules for casting and counting ballots.

Many lawyers were surprised when the Court granted the

first cert petition presented to it in the litigation over the Florida

recount in the 2000 presidential election. The case seemed to

involve only issues of state law—the timing of deadlines for local

election boards to complete their certification of vote totals and

whether manual recounts of ballots were mandatory or optional

as part of this certification process. But the Florida Supreme

Court’s handling of those state law issues was, to put it charitably,

so creative or, to put it less charitably, so at odds with a straight-

forward reading of the relevant statutory language.

At least four justices of the U.S. Supreme Court felt compelled

to look at whether the state court may have violated the federal

Constitution. Article II says that state legislatures have the power

to choose how to appoint presidential electors. George W. Bush’s

lawyers were arguing that by its bizarre interpretation of the

state’s statutes, the Florida Supreme Court had essentially robbed

the state legislature of that power.

That the Florida Supreme Court was populated with elected

Democrats and its unusual interpretation favored Al Gore didn’t

help to give the federal justices, or at least four of them, confi-

dence that the state judiciary was deciding the case impartially.

Thus, the high court took on the case, to keep the state judiciary

in line. When it first sent the case back on December 4, 2000, it

was with a unanimous signal that the state courts should make

sure to appear nonpartisan when handling such a high-stakes

election dispute.

But the Florida Supreme Court wouldn’t take the hint. In a

new phase of the recount proceedings, it continued to interpret

the relevant state statutes in ways that were at odds with natural

readings of their texts, and it continued to require the trial court

to invent a special statewide proceeding for which there were

no statutory provisions or guidance.

That judicial inventiveness, especially after the previous warn-

ing, was too much for the U.S. Supreme Court majority to tolerate.

In a dramatic Saturday order responding to Bush’s emergency

request for a stay, it immediately put a stop to the state court

proceedings. Although it held an oral argument on the following