Rick Pildes raises some excellent questions. I am also curious why
there has been so little discussion on this listserv on the merits of the
present litigation. Is it that all the major points are being well-covered
in the press so there is not a lot to add? Or perhaps everyone is busy this
week.
Another question Rick raises is, why did the state not contest the
merits? Although I have no inside information, the answer may be that the
state had already decided to abandon use of the punchcard machines. In
2001, the previous Secy of State, Jones, decertified punchcard machines
effective 2006. A law suit was filed to require their abandonment effective
2002. Rather than litigate the merits, the parties settled on abandonment
effective 2004. Obviously, no one anticipated a statewide election in 2003.
Given that history, the state may have thought for some combination of
political and legal reasons that it was not wise to litigate the substantive
constitutional question. The defendant-intervenor did contest that
question.
Whether the state's strategy was wise I can't say, but it does seem
to me correct in one sense. The disruptiveness of what the Ninth Circuit
panel did seems to me so extreme that it vastly transcends the substantive
constitutional question. We had excellent discussion on this listserv
earlier this year, when the many questions about the recall procedures were
up in the air. Five cases were filed in the California Supreme Court, and
anyone who was paying attention here knows that some of those cases raised
very substantial legal questions. Nevertheless, the state court
peremptorily dismissed all the cases. I think it was right to do so. If it
had scheduled any of those cases for argument, it would have sown confusion
and jeopardized the ability of election officials to hold the election on
the scheduled date. That would have been far worse than enduring whatever
administrative rulings the court might have overturned, had it considered
them. The disruption caused by the Ninth Circuit panel is even worse,
because it comes so close to the election date.
Rick also raises the question of the merits. Obviously, there are
very different opinions on what Bush v. Gore means. There is no mystery as
to why that is the case. Section II.B. of the majority opinion begins with
some very broad statements about the right to cast equal votes. The opinion
then focuses on the specific problems in Florida and then contains
paragraphs explaining why these problems constitute a constitutional
violation. Those, like the 3-judge panel and Chemerinsky, Hasen, and Tribe
(each of whom has appeared as an attorney supporting the plaintiffs in the
case), who take an expansive view of the case rely on the broad language at
the beginning of Section II.B. Those of us who take a narrower view of B v.
G regard that as a perverse way of reading a case. Generally, one
interprets the language of the case in the context of the factual situation
before the court. Here, the Supreme Court was very explicit:
"The recount process, in its features here described [i.e., the
Florida inconsistencies the Court had delineated in detail], is inconsistent
with the minimum procedures necessary to protect the fundamental right of
each voter in the special instance of a statewide recount under the
authority of a single state judicial officer. Our consideration is limited
to the present circumstances, for the problem of equal protection in
election processes generally presents many difficulties.
"The question before the Court is not whether local entities, in the
exercise of their expertise, may develop different systems for implementing
the elections. Instead, we are presented with a situation where a state
court with the power to assure uniformity has ordered a statewide recount
with minimum procedural safeguards."
It would therefore seem that the California case presents exactly
the question that B v. G specifically said was NOT what the Court was
deciding, and does NOT present anything resembling the question that the
Court said it WAS deciding, namely whether minimum procedural safeguards are
required when a single state judicial officer is in charge of a statewide
recount. That in that situation, the single judicial officer should be
required to interpret identical evidence consistently, does not seem like a
remarkable proposition. I therefore agree with Rick Pildes that what he
calls the procedural view is the best justification for B v. G.
Thanks for posting your message, Rick.
ΚΚΚΚΚΚΚΚΚΚΚ Best,
ΚΚΚΚΚΚΚΚΚΚΚ Daniel Lowenstein
ΚΚΚΚΚΚΚΚΚΚΚ UCLA Law School
ΚΚΚΚΚΚΚΚΚΚΚ 405 Hilgard
ΚΚΚΚΚΚΚΚΚΚΚ Los Angeles, California 90095-1476
ΚΚΚΚΚΚΚΚΚΚΚ 310-825-5148
-----Original Message-----
From: Rick Pildes [mailto:rpildes@UMICH.EDU]
Sent: Friday, September 19, 2003 12:54 PM
To: election-law@majordomo.lls.edu
Subject:
Now that the CA 9 has announced a rehearing en banc, perhaps list members
can provide insight on the following: Bush v. Gore can be read as either a
substantive equal protection decision that requires equal statewide
outcomes in the effective weight given each vote or as a procedural
decision that requires vote counting rules specified ex ante and
objectively enough to reduce the risk of partisan manipulation of the
counting process to a tolerable level. Einer Elhauge, in the Wall Street
Journal and in Policy Review, as well as Abner Greene, have pressed for the
procedural interpretation of Bush v. Gore. Yet so far, that reading of
Bush v. Gore has appeared nowhere in the State's briefs, nor has it been
discussed on the list at all. My own view is the text of the Bush v. Gore
can be read to support either view; I also think the procedural view is
probably the better justification for the decision, whichever reading the
text supports; but that a majority of judges are likely to read Bush v.
Gore for the outcome-oriented substantive principle of equally-weighted
votes. Why has the State not pressed the alternative view? And if my
assessment of likely judicial responses is right, why would that be, given
the textual and functional plausibility of the Elhauge position?
Rick Pildes
Professor of Law, New York University School of Law
40 Washington Sq. South
Room 322-B
New York, NY 10012-1099
also reachable at: rick.pildes@nyu.edu
o: 212 998-6377
fax: 212 995-4341
http://www.law.nyu.edu/faculty/profiles/bios/pildesr_bio.html