The Kabuki mask of Bush v. Gore.

• Author: Levin, Nick
• Position: Case Note

Bush v. Gore, 531 U.S. 98 (2000).

Is law merely Kabuki politics?(1) Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore,(2) as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics point to flaws in the equal protection argument,(3) the "conservative" Justices' decision not to remand the case to determine appropriate vote-counting standards,(4) and the irony of the pro-federalism Rehnquist Court's intervention in a state supreme court's interpretation of state law.(5) They conclude that political animus must explain the result.

In this Case Note, I assume arguendo that the equal protection critiques are valid (even though some disagree(6)). I nevertheless seek to justify the Court's equal protection holding, not as correct on its own terms, but as a vehicle through which the Court addressed a likely First Amendment freedom of association violation. The real problem was not that the difference between standards was inherently too large but rather that political partisanship (i.e., viewpoint discrimination) may have caused it.(7)

In particular, I focus on how the absence of specific standards guiding permissible legal votes--when the instrumental effect of a county's choice of recount standard was immediately apparent--provided counties with an opportunity to try to manipulate the election results.(8) The risk of viewpoint discrimination arose because the county canvassing boards in predominantly Democratic counties, such as Broward (on which I focus in this Case Note), knew that Gore would lose if the pre-recount vote held. There was a substantial possibility that Broward's Democratic agenda may have caused it to choose a more lenient vote-counting standard in order "to maximize the number of recovered votes." (9) Even if the resulting standard were applied equally to Bush and Gore votes (which I presume to be true), this partisan choice of standards would--for reasons that I explain--unconstitutionally restrict Bush voters' freedom of association by intentionally providing Gore with a relative gain.

Part I explains the bare-bones facts pertinent to this Case Note and briefly restates the Court's equal protection holding.(10) Part II discusses the doctrinal underpinnings of freedom of association analysis. Part III describes how Bush v. Gore would have presented a unique but cognizable--and potentially meritorious--relative restriction of association.

I

On November 8, 2000, Republican Governor George W. Bush narrowly led Democratic Vice President Al Gore in Florida's presidential vote. As part of protest and contest proceedings, various county canvassing boards decided to conduct manual recounts. The touchstone for determining a legal vote was "the intent of the voter," (11) but each county interpreted the "intent of the voter" differently. Both Palm Beach County and Broward County, for instance, counted dimpled chads(12) as demonstrating "the intent of the voter," but Palm Beach County would only do so when all of the chads on that ballot were dimpled,(13) while "Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties." (14) This led to a net gain of 567 Gore votes in Broward County and 215 Gore votes in Palm Beach County--also a result markedly disproportionate to the difference in population between the counties.

The Court's per curiam decision explained that "[t]he problem inheres in the absence of specific standards to ensure... equal application [of 'the intent of the voter' standard]," (15) as "the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another." (16) The Court deemed this recount process "inconsistent with the minimum procedures necessary to protect the fundamental fight of each voter" under the Equal Protection Clause.(17)

II

The right to vote has traditionally implicated both freedom of association and equal protection:

[S]tate laws place burdens on two different, although overlapping, kinds of rights--the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively .... We have repeatedly held that freedom of association is protected by the First Amendment.(18)

This right to associate freely is primarily a group right,(19) derived from the "nexus between the freedoms of speech and assembly," (20) for group members to express their shared beliefs collectively.(21)

The Court's scrutiny of regulations that burden a group's "collective effort on behalf of [its] shared goals" (22) varies according to the extent of the burden on association.(23) States are permitted a fair degree of leniency in enacting electoral restrictions,(24) and, in most cases, the states' "important regulatory interests" in conducting free, fair, and efficient elections are "generally sufficient to justify reasonable, nondiscriminatory restrictions." (25) Discriminatory restrictions are suspect even when the burden is minimal, as they compromise the "integrity and reliability of the electoral process itself";(26) and the level of corresponding scrutiny would be much higher(27)--almost certainly strict scrutiny.(28)

III

Bush v. Gore presents a different sort of restriction of association than the Court's previous election cases recognize: a relative restriction of association. Unlike the previous election cases, in which a governmental restriction made it harder to associate with a candidate,(29) Broward's use of a lenient recount standard made it easier for people to associate with a candidate--possibly too easy, converting potential nonvotes into votes.(30) The problem ensues because Gore gained disproportionately more votes. To show that this relative gain poses a freedom of association problem (if one concedes vote-machine failure and equal application of the standard(31)), I must...