Subject: some thoughts on the recall, Bush v. Gore, and filibustering judges
From: Rick Hasen
Date: 9/20/2003, 11:35 AM
To: election-law@majordomo.lls.edu

The meaning of Bush v. Gore and its application to the recall decision There's a very interesting thread now on the election law listserv, beginning with Rick Pildes's post including the following question:


Further discussion has focused both on what the Supreme Court meant and which rule would be a better rule if one were choosing one.
But I'd take issue with Rick's definition of the substantive point. I do read the opinion as a substantive decision, but not one that requires "equal statewide outcomes in the effective weight given to each vote." Rather, in my view, the best read of the substantive standard in Bush is one that prevents the state from allowing systematic disparities in the nuts and bolts of election administration that deprives an identifiable group of people of the same chance to have their votes counted. Thus, assuming punch cards have a much greater error rate than other voting systems in the state, it is an equal protection violation to use such a system in some parts of the state but not others---but it would not be an equal protection violation to use punch cards throughout the entire state. I develop my argument for this interpretation in my FSU article, which depends in part upon the Bush v. Gore Court's reliance on the 1960s voting rights cases (such as Reynolds and Harper), as well as the flat holding early in the Bush opinion that it is unconstitutional to value one person's vote over that of another.
No doubt, this language is exceptionally murky, and there are indeed other ways to read the opinion. As Dan Lowenstein's post points out, those who disagree with these interpretations point to limiting language in the opinion itself, language which I think the Supreme Court majority put there precisely so that it could limit the Bush holding in a subsequent case. (Indeed, I predict in the FSU article that the Supreme Court will ultimately limit Bush to its facts, but that in the meantime the lower courts should be applying the holding as though the Court were not writing a one day only ticket.)
I also believe that one of the best things one can say about Bush v. Gore is that it is a murky opinion. In earlier articles (sorry, I don't have citations with me) Issacharoff and Dorf called the Bush holding "perfectly opaque." Overton noted the lack of "judicially manageable standards" in the opinion. As I explain in detail in my book, when 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 entirely a good thing.
How much do we want courts interfering in the nuts and bolts of elections to insure that there is no systematic inequality that can affect electoral outcomes? No one seemed to object when I argued in my FSU piece that non-uniform use of punch cards violated Bush v. Gore, or when the Black v. McGuffage district court so held in the Illinois litigation over punch card votes. Maybe the reason is that no one was paying attention earlier. I actually think that some of the reason is that the argument is generally unobjectionable---what good reason does the state have for selective use of punch cards? If it is a resource allocation decision, I am fairly comfortable saying that this is one decision that should not be left to localities. The better reason for objecting now in the recall context is not that Bush v. Gore is being unfairly stretched, but that the balance of the equities favors using the system in this election, because there is no time to do anything else. I disagree with that assessment, but I think that is much more defensible than arguing that it would be okay for California or any other state to indefinitely permit a voting rule that systematically undercounted the votes of Los Angeles residents and others. It will be a shame if the outcome of the en banc decision is to stall voting reform across the country.


Ted Costa wants time at the oral argument To the extent oral argument matters here, it will be interesting to see whether the court grants Costa any time. (See here on Costa's request.) At the three judge panel oral argument, Costa was the only one who argued the equal protection claim on the merits, with the state sticking only to res judicata and balance of the hardships. The latter was the sole focus of the state's en banc request as well. Bush v. Gore was not even cited.
. . .
The recall, Bush v. Gore, and Miguel Estrada What do these three topics have in common? The connection between the first to is obvious to readers of this blog, but what about the third? Miguel Estrada, of course, is a Washington lawyer who recently withdrew his nomination for a judgeship on the United States Court of Appeals for the D.C. Circuit. He did so in the face of a relentless filibuster by Democrats. Some of those who opposed the filibuster said that it was unfair, and among those who said that, some argued that the ideology of the judge should be irrelevant to the decision whether or not to confirm the judge---the only question should be one of judicial competence, at least on the Court of Appeals.
The recall litigation in the Ninth Circuit should end any serious discussion of the irrelevance of ideology to the confirmation process. How is it that most knowlelgeable observers were able to handicap the chances that the three judge panel would reverse the district court in the punch card recall suit? How is it that knowledgeable observers now predict that the three judge court decision will be overturned? Those knowledgeable observers know the ideological leanings of the appellate judges and therefore can extrapolate about how sympathetic these judges are likely to be to the equal protection claims of voters using punch cards, compared to state interests in a speedy recall election. Of course ideology matters, and of course it should be relevant in confirmation decisions of intermediate appellate court judges.