(for the electionlaw listserve)
As Rick Pildes notes, I have pressed the "procedural"
interpretation of Bush v. Gore. In my book Understanding the 2000
Election (published two years ago) I argued that we should apply a long
line of speech/press cases in the voting setting. Those cases (going
back to Lovell v. Griffin) forbid statutes from delegating to political
officials the unfettered discretion to make decisions about citizens'
political rights (e.g. parade permits, meeting licenses, etc.) The
constitutional right here is of the prophylactic sort -- the Court is
concerned about warding off the risk that political officials with such
delegated standardless discretion will help their friends and hurt their
enemies. Importantly, this line of cases has not deemed it sufficient
that courts sit in review of these local officials' decisions.
The application to the Florida recount system in 2000 is fairly
straightforward: the statute said the recounters had to determine voter
intent, but gave no further instructions on how to do so, and the state
courts refused to further specify. This left, as we all remember, the
specter of different counties counting chads differently. It's not
immediately apparent how that could lead to cronyism, but imagine a
highly Democratic county with Democratic election officials who decide
to apply a "liberal" chad-counting rule, on the expectation they'd
recover more Democratic votes. Etc.
Last week I communicated this view to one of the state's attorneys
in the California recall case. The state could, it seems to me, both
(a) be committed to future elimination of punch-card voting and (b)
defend this election by arguing for the narrow, first-amendment, reading
of Bush v. Gore. Since the problem in California is differential error
rate of voting mechanisms, and not standardless discretion placed in the
hands of local officials, the state should press the 9th Circuit to read
Bush v. Gore to fit the Florida facts.
regards,
Abner Greene, Fordham Univ. School of Law
"Lowenstein, Daniel" <lowenstein@law.ucla.edu> 09/19/03 6:03 PM >>>
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.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
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