When Elections Go Bad: The Law of Democracy and the Presidential Election of 2000.

• Author: Dorf, Michael C.
• Position: Review

WHEN ELECTIONS GO BAD: THE LAW OF DEMOCRACY AND THE PRESIDENTIAL ELECTION OF 2000. By Samuel Issacharoff, Pamela S. Karlan and Richard H. Pildes. New York: Foundation Press. 2001. Pp. iv, 172. Paper. $9.95.

1. INTRODUCTION

   The day after the Supreme Court's decision in Bush v. Gore, (1) a colleague who specializes in tax law approached me with mock sympathy. "It must be very discouraging trying to teach constitutional law," he said, "when it's so obviously made up." This view of the Court's decision remains widely held, at least within the academy and among those who did not vote for President Bush. Unlike many of my fellow Democrats and academic colleagues, however, I see no reason to question the motives of the majority (or dissenting) Justices in Bush v. Gore. I certainly do not think that the case casts doubt upon the very possibility of principled constitutional adjudication. Nonetheless, I share the widespread view that the justifications the Court offered for its decision were quite unconvincing, and for that reason I have difficulty believing that the case will, as it were, have legs. Bush v. Gore is an important case because of the stakes of the controversy it resolved, not because of the legal principles it announced.

   By contrast, Samuel Issacharoff, (2) Pamela Karlan, (3) and Richard Pildes (4) take the case seriously as a source of legal doctrine. They use it as the centerpiece of a legal primer on the difficulties surrounding after-the-fact judicial review of election procedures. In its fair and balanced exposition of prior precedent and the legislative history of the key provisions upon which the Supreme Court purported to rely in Bush v. Gore, When Elections Go Bad provides the Court with all the rope it needs to hang itself. (5)

   Yet the book's very structure implies that Bush v. Gore reflects the dilemmas that generally and inevitably arise when courts are asked to adjudicate election disputes. It does not. Bush v. Gore is sui generis. Because of its remarkable role in deciding a remarkable election, however, the case is clearly worth studying closely, apart from any general lessons one might choose to draw from it. Although When Elections Go Bad presents the courts as struggling with recurring dilemmas, its real strength is the light it sheds on the performance of the U.S. Supreme Court in the Presidential election of 2000.

   In Bush v. Gore, the Court's most conservative Justices announced an interpretation of the Equal Protection Clause so broad that, if generally applied, it would sweep aside election procedures in a majority of American states. A manual recount of punch card ballots was held unconstitutional because the statutory phrase "intent of the voter" was deemed insufficiently precise to constrain the discretion of vote counters. (6) Yet three fundamental errors marred the Court's analysis.

   First, the majority Justices apparently assumed that the alternative to an imperfect manual recount was a perfect measure of the will of the Florida electorate. Yet intercounty variations in the accuracy with which different forms of balloting recorded voters' intent dwarfed the variations introduced by the ambiguity of the recount standard. (7) The Court brushed aside this concern through pure ipse dixit. (8)

   Second, the Justices themselves bore substantial responsibility for the Florida Supreme Court's failure to specify substandards for gauging "intent of the voter." In its first foray into the 2000 Presidential election, the U.S. Supreme Court cautioned the Florida Supreme Court that the latter should hew closely to the letter of Florida statutes, lest it be found to usurp the role of the Florida legislature under Article II, section 1, clause 2 of the Constitution and 3 U.S.C. [section] 5. (9) By the time the case made it back to the U.S. Supreme Court less than a week later, only three Justices were willing to endorse this view, (10) but by then the damage had been done. The Florida Supreme Court had been intimidated into ordering a recount under the unembellished statutory standard of "intent of the voter." This time the Florida court was reversed for failing to gloss the statute. Heads Bush wins; tails Gore loses -- or so it appeared.

   Third, and perhaps least justifiably, the U.S. Supreme Court determined that the counting had to cease at midnight, December 12, 2000, barely two hours after it issued its decision. The Court located this deadline in what it termed the Florida Supreme Court's statement "that the [state] legislature intended the State's electors to `participat[e] fully in the federal electoral process,'" (11) by taking advantage of the safe harbor 3 U.S.C. [section] 5 provides against challenges in Congress. Yet Florida's statutes nowhere stated a preference for the safe harbor deadline over an accurate count, nor did the Florida Supreme Court ever attribute such a preference to it. (12) Even Florida Supreme Court Justice Shaw, who dissented from his court's December 8 decision ordering manual recounts, later opined that "December 12 was not a `drop-dead' date under Florida law." (13) Thus, on the question of recount standards, three of the Justices in the 5-4 Bush v. Gore majority were unwilling to accord the Florida Supreme Court anything like the deference state courts customarily receive as expositors of state law. On the critical deadline question, however, they were willing to defer to a decision the Florida Supreme Court never made, interpreting Florida statutory text that did not exist.

   The high stakes and the unpersuasiveness of the reasons given by the Supreme Court for its decision in Bush v. Gore have led many observers to conclude that the case cannot be understood in anything but political terms. (14) By "political," the Court's critics do not merely mean that the Justices voted on the basis of their values or ideologies rather than in accord with neutral principles. There are, after all, numerous instances of Justices adopting one principle in one set of cases and its opposite in another. Most prominently, the Court's conservatives attack judicial activism in the service of reproductive rights, (15) gay rights, (16) and church-state separation, (17) while practicing judicial activism in the service of states' rights, (18) colorblindness, (19) and associational freedom. (20) And the liberals practice judicial activism in cases involving the first set of issues while attacking it in cases involving the second set. (21) But it is at least possible to articulate a vision of the Constitution that sanctions greater judicial solicitude for one constellation of values than for another. By contrast, in Bush v. Gore, the Justices appeared to strain legal logic in the service of a particular candidate for office rather than in the service of a larger constitutional vision.

   Many difficult questions of constitutional law have no single, obviously correct answer. Should the limits on Congress's power be enforceable by courts, and if so, what are those limits? Do courts have the power to enforce rights not expressly spelled out in the Constitution's text, and if so, which rights? (The right to choose abortion? The right to exclude homosexuals from private associations?) Does affirmative action remedy violations of the Equal Protection Clause, or does it actually violate the Clause? In the wake of legal realism, it would be foolish to suggest that anyone could answer such questions without relying in some measure on his or her own somewhat subjective value judgments.

   Yet, as I often tell my students as they are studying for exams, the fact that a question has no single right answer does not mean that it has no wrong answers. Constitutional provisions, statutes, and precedents rule out certain results, even as they leave open a range of legitimate results. The constitutionality of some forms of affirmative action and school vouchers are open questions; the constitutionality of slavery and an official church of the United States are not. The problem with Bush v. Gore is not that the Court made a poor choice among a range of legitimate options. The problem is that the Court appeared to choose a result from almost completely outside that range. For this reason, the case is an awkward vehicle for exploring the general problem of judicial review of elections, or anything else.

   To reiterate, I am not adding my name to the list of those who have accused the Court of partisanship. Who can ever know another's true motives, or even his own? Intriguingly, two of the authors of When Elections Go Bad have written separate essays that locate Bush v. Gore in lines of cases with a less partisan bent, (22) and undoubtedly the Justices saw themselves as simply performing their duty. Yet the pure heart defense only goes so far. Ultimately, the Court must be judged by its deeds, not its motives.

2. ORGANIZATION

   When Elections Go Bad fills a gap in the authors' casebook, The Law of Democracy. (23) The latter "focused more on institutional arrangements than on the nuts-and-bolts of casting votes and having them counted" (p. 2). The organization of When Elections Go Bad suggests that it is intended either as an extended supplement for a course in election law or as a stand-alone work on the law of the casting, counting, and litigating of votes. But the book's content and its timing -- published less than a month after the Supreme Court's ruling in Bush v. Gore -- make the book especially useful as a tool for understanding the legal issues in the 2000 Presidential election.

   Nevertheless, the authors have followed the usual course for case-books, organizing the material thematically. The book consists of a short foreword followed by four chapters: (1) The Federal Interest in Election Procedures; (2) When Should Federal Courts Intervene?; (3) The State Interest in Federal Elections; and (4) Remedial Possibilities for Defective Elections.

   Throughout the book, the authors use the 2000...