I suppose I should respond to Fred's posting immediately below. In 2000
I spent time (as did many of those on this list) as a talking head. My
role was to explain what the heck was going on. I was a Gore supporter,
and hated much of what the GOP was up to, but it was still rewarding to
be the "law professor explains what's happening" person rather than the
"Gore-supporter" talking head. After the election ended, I had compiled
a lot of information in my head and in folders, and I wrote a book,
mostly of explanation, for a general audience, called "Understanding the
2000 Election," which NYU Press published in 2001. The book does
critique arguments and holdings from Florida 2000; most of my critiques
favor the Gore side; but I do devote a few pages laying down the basic
proposition that the vagueness of the Florida "voter intent" standard
and the absence of substandards raises a plausible Lovell v. Griffin
type concern.
Since then, I have read virtually all of the Bush v. Gore
literature, and although some have talked a bit about this argument,
only Daniel Tokaji has developed it, and I decided there was room for
further development. So I did, in the forthcoming article I mention
below.
With that preface, here's an answer to Fred's implicit question: I
have no idea what the motivation was of the Bush v. Gore majority. I
have my guesses, as do we all. But that's not the way I teach and it's
not the way I do scholarship. I leave that to Dershowitz et al. It's
not that I'm naive about the issue of judicial motivation, it's just
that I'm more interested in reading what judges write, examining the
law/facts they were addressing, and seeing whether there's something to
be said about that. If that involves "normalizing" difficult-to-swallow
cases, then that's what it is, but I'm certainly neither the first nor
the last to attempt such scholarship.
The Bush v. Gore merits holding either can or can't be squared with
constitutional doctrine, regardless of the judicial motivation and
regardless of the stupid line in the opinion about "good-for-this-case"
only. Many have no interest in addressing this, because of their deep
skepticism about what happened throughout Florida 2000 and their outrage
over W's Administration. I share the skepticism and the anger, but for
whatever psychological/intellectual reason (!) I'm still interested in
the doctrinal inquiry.
I should add two things: (a) from the very start of the
hand-counting in Florida 2000, I was concerned about the lurking Lovell
v. Griffin type issue involving county discretion to determine "voter
intent," (b) the argument I make, about providing objective ex ante
substandards for constraining official discretion in matters involving
political rights, would, I hope, be seen as a liberty-loving rather than
liberty-constraining argument.
Continue to fight for our country, y'all!
Abner Greene, Fordham Univ. School of Law
***
I preface the following comment with a plea that no one take it the
wrong way
or be offended by any implicit implication that there is a lack of worth
to
the continuing academic and intellectual efforts to analyze the Bush v.
Gore
decision. But, having said that, I truly am curious why anyone --
especially a
devastated Kerry supporter who still believes that there were serious
problems
with Florida's recount in 2000 -- can spend time attempting to construct
a
neat theoretical framework to explain or criticize the Supreme Court's
decision
after the recent Vanity Fair article made it quite clear that the
decision was
utterly political, with its "good-for-this-case-only" holding and
analysis
apparently just a pretext to reach a foregone conclusion. I have seen
criticisms that the clerks who spoke to the authors of that article
breached their
confidentiality pledges and should not have done so, but I don't believe
I have
read anything that casts doubt upon the truth of what the article said.
Fred Woocher
<FredWooch@aol.com> 11/05/04 10:55 PM >>>
In a message dated 11/5/2004 1:01:18 PM Pacific Standard Time,
agreene@law.fordham.edu writes:
Although it might make sense to construe the Equal Protection Clause as
requiring rough equality in error rate and voters-per-hour, I doubt that
Bush v. Gore can be profitably read to this effect. The majority says
it wasn't talking about voting system disparity (dicta, granted, but
with a clear signal) and Souter says voting system disparity isn't
unconstitutional.
I continue to think that the best reading of Bush v. Gore is a concern
with nonuniform counting standards and the potential for local official
discrimination, i.e., an analogy to the first amendment Lovell v.
Griffin line of cases. In an article called "Is There a First Amendment
Defense for Bush v. Gore?", forthcoming next spring in the Notre Dame
Law Review, I make this argument in an extended format. I address in
detail what the first amendment caselaw holds, and what it doesn't; why
analytically the analogy between the first amendment setting and vote
counting setting is sound; respond to various objections about extending
the Lovell line to vote counting; and discuss in detail whether Justice
Stevens was right in saying that a single, impartial arbiter would have
cured any nonuniformity problem, and whether the US Supreme Court should
have remanded for the Florida Supreme Court to "impose" uniform
standards.
I'll get the piece up on SSRN soon and send an e-mail here when I do.
regards,
Abner Greene, Fordham Univ. School of Law (a devastated Kerry supporter
who still believes that there were serious problems with Florida's
recount in 2000)