Vote-dilution analysis in Bush v. Gore.

• Author: Bopp, James, Jr.
• Position: The Legacy of Bush v. Gore in Public Opinion and American Law

"I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this--who will count the votes, and how. "--Joseph Stalin (1)

1. How the Vote-Dilution Claim Arose A. A Vote-Dilution Claim Is Recommended B. A Draft Complaint Is Sent C. The First Vote-Dilution Claims Are Made II. How the Vote-Dilution Claim Developed A. Vote-Dilution Is Argued in Siegel v. LePore B. Vote-Dilution Is Argued in Touchston v. McDermott C. Vote-Dilution Gets Minimal Attention Before the Florida Supreme Court D. Vote-Dilution Gets More Attention Before the United States Supreme Court III. Why the Vote-Dilution Claim Prevailed A. Gore's Selective Manual Recount Was Legal, Unfair, and a Strategic Error B. The Florida Supreme Court Failed to Understand Its Probationary Status After the United States Supreme Court's Initial Deference IV. Conclusion **********

   After the November 7, 2000 presidential election, the electoral-college vote hinged on whether Governor George W. Bush or Vice President Albert Gore, Jr. had won Florida. Candidates, officials, and voters battled in Florida and federal courts. (2) This article is about the equal-protection, vote-dilution constitutional analysis that would ultimately decide the matter.

   On December 12, the United States Supreme Court held that "[t]he recount process in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter ..." (3) In its analysis, the Court noted that "'[f]or purposes of resolving the equal protection challenge,' it was enough that '[t]he recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirements for nonarbitrary treatment of voters necessary to secure the fundamental right."' (4) "Upon due consideration of the difficulties identified to this point," the Court later noted, "it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work." (5) Consequently, the Court held: "With respect to the equal protection question, we find a violation of the Equal Protection Clause." (6) Four problems were identified: (1) "unequal evaluation of ballots"; (7) (2) failure to evaluate voter intent in "overvotes" (8) as was done with "undervotes" (9) in the manual recounts; (10) (3) including totals from a partial recount of Miami-Dade County; (11) and (4) "concerns" about the counting process, including ad hoc, untrained counting teams and observers prohibited from objecting. (12) None of these problems was identified as conclusive. But the sum of them was held to fall short of what equal protection required in order to avoid the vote-dilution problem recognized in the Court's "one-person, one-vote jurisprudence" as applied to "arbitrary and disparate treatment to voters in ... different counties." (13) The Court cited Moore v. Ogilvie (14) for the vote-dilution principle as applied to counties--"[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." (15) The Supreme Court remanded the case to the Florida Supreme Court, which decided on December 22, that there was no remedy to be offered to Gore. (16)

   Was the equal-protection claim properly before the United States Supreme Court? At the St. Thomas Law Review Symposium, Bush v. Gore: A Decade Later, Florida Supreme Court Justice R. Fred Lewis claimed the equal-protection argument was not properly before the United States Supreme Court:

   [T]alking about the equal protection arguments.... I don't think that those were really preserved ... as a basis for the U.S. Supreme Court's ruling. I'm sorry.... I've gone through those briefs. I've understood the arguments.... You go through here, and I will challenge you to find the argument that was the ultimate decision in this case, other than in one lone dissenting opinion in the Florida Supreme Court that was based on things that were never presented to us. That's my view. (17) And Professor Tribe earlier described the difficulty of success in representing Gore based in part on "the perverse audacity of the Bush assault" to assert a vote-dilution argument "against the Florida Supreme Court for permitting the counting of those ballots." (18) In Tribe's opinion, it was the United States Supreme Court's decision that "would violate the one-person, one-vote principle by arbitrarily distinguishing between ballots counted for a candidate and those tossed out as not machine-readable despite the clarity of the voter's intent...." (19) Wrote Tribe:

   It was as though the Bush lawyers had the foresight to imagine the strongest possible arguments that could be made against the kind of Supreme Court victory they ultimately obtained, then reflected those arguments in a diabolical mirror capable of displaying what looked like legal propositions even though they were in fact nonsensical or at least logically inverted, and then put those pseudo-arguments--those--forth, without embarrassment and indeed with genuine conviction, as arguments against the Florida courts' construction of the state's election code in a manner that favored counting every legal vote, that is, every ballot cast by an eligible voter that clearly manifested the voter's intent. (20) Where did that "audaci[ous]" vote-dilution claim come from, and was it before the Florida Supreme Court and the United States Supreme Court? Part I of this article explains how that successful vote-dilution claim arose. Part II explains how the claim was argued. Part III explains who prevailed on the claim. The article is written from the practical perspective of litigators who were early advisors to Bush's lawyers and litigated Touchston v. McDermott, (21) which argued the vote-dilution claim on behalf of voters. Given the topic, the article is necessarily somewhat autobiographical, as was the lengthy article on Bush H by Professor Tribe, (22) who served on Gore's legal team. (23)

   Touchston was important for raising the vote-dilution claim early, providing much of the vote-dilution briefing before the Eleventh Circuit and United States Supreme Court, and obtaining the only injunction forbidding election officials to change the election results until the United States Supreme Court resolved the matter. On December 9, an injunction pending certiorari consideration was issued in Touchston preventing Florida officials from "changing ... any previously certified results of the presidential election based upon any manual recounts after the existing certification." (24) Also on December 9, the United States Supreme Court granted a stay of the mandate of the Florida Supreme Court in Gore v. Harris, (25) which had ordered "commence[ment of] the tabulation of the Miami-Dade ballots immediately" (and similar expedition as to "any further statewide relief"), (26) and accepted that case for expedited review. (27) After Bush II decided that vote-dilution was occurring in the Florida recount in violation of the equal-protection guarantee, certiorari was denied in Touchston on January 5. (28)

1. HOW THE VOTE-DILUTION CLAIM AROSE.

   How did the vote-dilution claim originate? What was its nature?

   Some context will be helpful. The election was on Tuesday, November 7, 2000. On Wednesday, November 8, Florida election officials reported that machine-counted (29) tallies showed that Bush had received 1,784 more votes than Gore. (30) The close result triggered a statutory machine recount, which left Bush ahead by a reduced margin. (31) In the final official tally, Bush would be certified the winner by 537 votes, a hundredth of a percent. (32) Given this statistical tie, a variation in standards for counting ballots might put Gore ahead if manual recounts could be done only in populous counties favoring Gore.

   On Thursday, November 9, Gore, through the Florida Democratic Party, as permitted by statute, requested manual recounts, under statutory authority, in Broward, Miami-Dade, Palm Beach, and Volusia Counties. (33) Gore's selected counties were populous and had heavily favored Gore in earlier tallies. (34)

   Many, ourselves included, perceived Gore's actions (though legal under Florida law) as fishing for votes, not just making sure all votes were counted (as the slogan put it). (35) As we argued to the Eleventh Circuit in Touchston:

   Twenty-six Florida Counties used the punch ballot. Punch ballot systems have a predictable error rate of 2% to 5% that was well-known to Florida's election officials for the 2000 election. Thus, anyone motivated by a sincere desire to see that all ballots be counted would not focus only on four counties. Thus, the Manual Recount Statute has created the unconstitutional "effect of treating voters differently depending on what county they voted in." Significantly, the [Florida Democratic] Party has never denied that the statute may be exploited in this fashion. Nor has it denied that it intended to create a partisan advantage by carefully targeting only counties where its candidate stands to gain a significant advantage. The Party has simply asserted that it followed the rules. (36) A. A VOTE-DILUTION CLAIM IS RECOMMENDED.

   Late afternoon on Thursday, November 9, James Bopp, Jr., received a call from Charles T. Canady, then legal counsel to Florida Governor Jeb Bush, and George J. Terwilliger III, a member of Bush's campaign legal team. (37) They asked for ideas and research on potential federal claims in planned litigation in federal court. (38) Their initial ideas were possible claims under the Due Process Clause of the Fourteenth Amendment and under the Voting Rights Act. A conference of lawyers in Bopp's law firm was promptly called to consider possible claims. An equal-protection, vote-dilution claim was recommended. Research was assigned. Later in the evening, Bopp conferred...