Dan asks a good question: why so little analysis on the list of the
substantive merits of the claim? I have detected one reason among
opponents of the recall (and I am one of those who detest this recall):
genuine uneasiness over the question of whether the merits had much to do
with the panel's decision.
The dilemma for those opposed to the recall, who typically
count themselves among the severe critics of Bush v. Gore, is that 1)
the panel's interpretation of the case, as it applies in California, is
very difficult to defend; and 2) in any event, those who dislike Bush v.
Gore are hardly comfortable with resurrecting it for any purpose as
legitimate precedent of broad application. And to the extent that the
panel was--to put it politely--deciding the case on the political facts
and not the substantive law, this too places Bush v. Gore critics in an
awkward position, since it is precisely this result orientation that
many attribute to the Supremes.
These are problems that will not go away: as constitutional and
statutory laws controlling the political process become ever more
elaborate, the specialists will debate theory while the courts will use the
theoretical scaffolding to extend judicial dominion over the democratic
process-- ruling on political "facts" in accordance with raw political
preferences.
I am not suggesting that the panel thought this was what it was doing, but
even those sympathetic to result suspect that this more than anything else
was at work in the decision.
It for this reason that I was struck by Rick Hasen's defense of the use of
BusH v. Gore--a defense both commendably candid and also troubling. He
writes:
"[w]hen the Supreme Court creates a wholly new equal protection standard
that does not stem from broad social consensus (as it has in cases like
Reynolds, Shaw v. Reno, and Bush v. Gore), it should do so initially using a
murky standard. That allows lower courts to experiment with the contours of
the new equal protection right allowing the Supreme Court to gain valuable
information about how to ultimately shape the new right. That is how to read
the current dispute over Bush v. Gore. This is an entirely good thing."
It is?? A Supreme Court claimed by many to be acting on political
preferences creates a new equal protection standard that is conceded to be
opaque but somehow suited to experimentation by lower courts (many of which
are being stacked with other judges with, er, political interests). Some
would not sleep all that comfortably when confronted with this prospect. In
any event, setting aside political suspicions, it will trouble anyone who
fears the extent to which courts are being invited to design political
processes and settle political disputes.
-----Original Message-----
From: Lowenstein, Daniel
To: Election-law Listserver (election-law@majordomo.lls.edu)
Sent: 9/19/2003 3:03 PM
Subject: How to read B v. G
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