Friday, November 12, 2010

Bush v. Gore - partisan paradigm and still dividing

A week or two ago I read a commentary by David Limbaugh, Rush's big brother and a successful conservative author himself. He started his article by remembering how the Democrats tried to steal the 2000 election. I commented on the website that this was the usual partisanship; that both sides had behaved  hypocritically and that Mr. Limbaugh was no different than Keith Olbermann, one a conservative and one a  liberal, but both tribal in nature. That set a bunch of commenters off who left angry responses to me (this was a conservative site, so you guess what they thought) but I had to go somewhere that day and couldn't respond right away. By the time I got back hours later hundreds of opinions had buried my comment and there was no point in replying. Just as well, because there is only so much I will right write in a comment but here, on America's most popular anti-partisan site beginning with the letters d-h-e, I can write as much as I like about Bush v. Gore. I do have lots to say about it, even if partisans of all stripes will probably object.

My problem usually is, not ideology, but that people who have never read the cases or studied it will have firm opinions simply based on the fact that they are on one side or the other. But, even if they read deeply, it wouldn't matter. I presume David Limbaugh read the cases, but, if I could bet heavily on what his position would be on any given political issue, I would make a lot of money. Or, Keith Olbermann, for that matter.

This 2000 Presidential election provided a fascinating battle in the courts between two candidates, President George W. Bush and former Vice President Al Gore, which highlights exactly this point. It was one of the high points of partisan behavior in our country where nothing mattered but which side won and which lost the presidency.

Actually, it did not take a genius to know who was going to win. With a conservative majority in the Florida legislature and the United States Supreme Court, the Democrats, with only the largely Democrat Florida Supreme Court in their pocket was outflanked and outranked. In all honesty, despite the media's insistence that the country couldn't take the dispute, most people I spoke with handled it very well and knew it would be resolved sooner or later Only the most partisan people I knew were deeply troubled.

Although often portrayed otherwise in the media, it must be stated that it became quite difficult to argue that the Supreme Court decided the election as of about a year after their decision. An unofficial manual recount of all Florida votes at the behest of a consortium of media outlets including The New York Times revealed that in almost any set of conditions used, Bush won the election by a few votes, out of millions cast. Although a recount of all votes in Florida would have made Gore the winner by a different small amount, he did not request that happen. He only requested that four counties be manually recounted. That was his fatal error.

Gore supporters do point to other factors: the famous butterfly ballot mistake which gave a couple of thousand likely Gore voters to conservative Pat Buchanan (ironically, the badly designed ballot was the creation of a Democrat); the controversial deletion of numerous eligible voters incorrectly deemed “felons” as eligible voters (which I have never written about, but may well have been deliberate), and the counting of late ballots from overseas military personnel (to which, ultimately, Gore did not object). It is impossible to precisely determine how changing these factors would have affected the counting, but there is good reason to believe it would have put Gore safely ahead. However, Bush supporters also argued that the early incorrect call by the television media for Gore caused many likely Bush voters in the western “panhandle” of Florida not to vote. All these concerns are speculative, and do not concern the cases discussed here, but they are worth mentioning.

These cases are also controversial for other reasons, not least because of the court’s temporary injunction, staying the recount on December 9 while time was running out on Gore. The purported reason according to Justice Scalia was to prevent irreparable harm so that the Supreme Court could make a decision. Others argue, of course, that with time running out, staying the counting did precisely the opposite, making certain that there could be no other decision but for Bush (well, Bush has said that Scalia is one of his favorite Justices). That would be my opinion. A few years ago, the author of a hagiography on Scalia entitled Scalia Dissents, who argued that Scalia was the only Justice suitable for the chief justice position once Rehnquist retired, conceded in a question and answer session after a speech that this had been in fact Scalia’s lowest moment as a judge, and was not justifiable. Numerous other Republican or conservative scholars, authors, and law professors have agreed. It is fair to wonder, of course, what they would have said, had the unofficial “media” recount come out differently, and Gore had “won”.

In the first case that came up, Bush v. Palm Beach County Canvassing Board (2000), the Supreme Court’s role was to determine whether to undo the decision that the Florida Supreme Court had made which appeared to favor Gore. Florida’s high court had permitted a recount after the deadline set by law and had set aside Florida’s Republican Secretary of State, Kathleen Harris’ decision not to permit late returns to be counted. As you probably know, this was all complicated by the fact that Florida’s Governor was none other than George Bush’s brother, Jeb Bush. He formally stepped out of any decision making role. Of course, it cannot be determined what, if any, behind the scene’s role he may have played, intentionally or otherwise, or, if the mere fact that he was governor consciously or unconsciously affected those beholden to him.

The day following the Presidential election (November 8th), the Division of Elections reported that Bush received 1,784 more votes than Gore. An automatic recount occurred pursuant to law due to the small margin of victory, and a smaller victory was still had by Bush after it was completed. Also pursuant to law, Gore submitted written requests for manual recounts to the canvassing board of four counties: Volusia, Palm Beach, Broward, and Miami-Dade -- all Democrat heavy counties.

A battle ensued as to whether the Secretary of State could reject amended returns from the four counties, after she determined that they did not meet the criteria previously published by her in order to do so. Gore sought an injunction so that she could not certify the results. The lower court determined that she had acted reasonably within her discretion. The Florida Supreme Court accepted jurisdiction and entered an order enjoining the Secretary and the Elections Canvassing Commission from finally certifying the results of the election and declaring a winner until further order of that court.

They then quickly issued a more final decision (November 21). They interpreted the Florida Election Law’s technical discrepancy between a machine return and a sample manual recount as justifying a manual recount. They also reconciled conflicts in Florida's election law language which alternately mandated that the secretary “shall ignor[e]" late election returns or "may ... ignor[e]" such returns, as meaning she “may” ignore them. Relying on Florida’s statutory “right to vote,” the court used its equitable powers and directed the Secretary to count returns made prior to November 26, five days later than statutorily required. Both holdings favored Gore.

When the Bush team sought to have it reviewed by the Supreme Court, their opponents argued that it was not proper for the high court to hear them, as the issues concerned only state law. In a per curium decision (meaning it was issued by the court as a unit as opposed to by an individual or several justices) the United States Supreme Court determined that although normally it would defer to a state court decision concerning state rules, it was appropriate for them to step in here as this case involved presidential electors, which was a national issue.

Further, the meaning of the Florida Supreme Court holding was unclear to the Court. There was an issue as to whether a court could circumscribe the legislature’s right to determine how electors are chosen, including time deadlines, and another issue as to whether the Florida Supreme Court could issue an order which prevented the election from being completed prior to the time the Florida legislature had ordained in order for it to comply with a federal law which provided a “safe harbor” date for State election results to be counted.

The Supreme Court vacated the Florida Supreme Court decision and sent it back for another decision “not inconsistent with this opinion”. Of course, time was quickly running out for Gore.

The matter was soon again before the Supreme Court in Bush v. Gore (2000) after the Florida Supreme Court reconsidered and then reinstated its extended time deadline. This time the issues were whether the Florida Supreme Court violated Article II, Section 1 of the U.S. Constitution by essentially making new election law, and whether the Equal Protection and Due Process Clauses of the Constitution were being violated.

Here the case mostly concerned whether the four counties’ use of different standards to do manual recounts, or no standards at all, violated equal protection. It should be noted that the court stated that this case was one of a kind and should not be used as a precedent for deciding future cases.

In Florida, the public had voted by punching little cutouts, called “chads”, with a sharp object. Sometimes though, the punch out was not completed and new terms entered our vocabulary: “hanging chads,” where two corners of the chad remained attached to the punch card, “dangling chads,” where only one corner remained intact, and even “dimpled chads,” where only a dent was made in the chad and all four corners were intact. Which of these should count as a vote and which discarded?

The evidence was quite clear that the counties each used a different standard to count these votes, and sometimes switched their standard during the recounting. It was reported that in one district three board members applied three different standards.

The Supreme Court’s decision points out that there technically is no right of citizens to vote in presidential elections (shocking, isn’t it?). The Constitution clearly leaves that up to each State’s legislature (Article II, section 1), upon which authority legislatures may even select the electors themselves. However, once the right is given, then equal protection applies, and similarly situated persons (voters) must be treated the same under the the law. Although the States could take back the right if they wanted to by legislation, I wouldn’t count on it, as the politicians involved would soon be looking for other jobs.

Under Florida law, an official counting votes is charged with trying to determine the voter’s intent. The majority of the Supreme Court had no problem with that concept as long as there was no equal protection problem.

In rendering its decision, the court relied on prior cases from the 1960s which had held that a State cannot have a voting system which gives more weight to voters in one area (usually less populous) of the jurisdiction than another. That seems only reasonable.

The controversy began to arise with the fact that the majority did not have a problem with different local municipalities using different standards from each other on its initial count, but they did when there was a statewide recount. In that case, they held, there must be only one standard way to count. It is certainly fair to ask - if there is an equal protection problem with a recount, why isn't it there with the original count? Pragmatically speaking, it is possible that the majority carved out this exception, because, had it not, every single state might have had to redo its system to make its procedure’s statewide. It would also mean that all presidential elections ever held would have likely violated equal protection.

Although it was clearly impossible for Florida to resolve this problem before the “safe harbor” date of December 12, 2000, the court again reversed the Florida Supreme Court and sent it back down again for a new order consistent with their directives.

Chief Justice Rehnquist concurred with the majority decision, adding that due to the federal nature of the election and the Constitutional provision granting the power to determine the method of selecting the electors to the State legislatures, a State court could not change the structure, particularly if the State legislature chose to take advantage of the federal “safe harbor” statute. “Surely when the Florida Legislature empowered the courts of the State to grant ‘appropriate’ relief, it must have meant relief that would have become final by the cut-off date of [the safe harbor deadline]”.

This opinion was countered by Justice Stevens, in dissent, who argued that the Supreme Court improperly interfered with a state issue. He suggested that the federal safe harbor rules were merely to provide the federal government with a way to determine what slate of electors to utilize if a State had sent more than one (as has happened once, and votes were counted that were certified after the deadline). The safe harbor, he wrote, provided no limitations on the state as to when to certify results. Thus, if there was an equal protection problem, the courts could have merely ordered remedial proceedings as to how to count the votes.

Stevens saw no federal question and would not have had the court take the case at all. The Florida Supreme Court, he argued, made no substantive changes to the law, only procedural ones, and in doing so, followed the Florida legislature’s mandate to determine the intent of the voters and leave no vote uncounted.

He ended his dissent with this sad commentary:

“What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.”

Maybe Steven’s pained commentary was correct. The Court’s equal protection argument was immediately assailed from many quarters. In making an equal protection argument, certainly Rehnquist, Scalia and Thomas, who usually had a narrow view of that clause, seemed to have forgotten their own preferences, which would deny an equal protection claim where there was no intent to discriminate (how would the vote counters know which candidate would be favored by any particular standard - are Gore or Bush supporters more likely to improperly punch a card?) Moreover, it is difficult to see, as Stevens argued, how equal protection can apply here, when the same standardless voting is permitted throughout the country. Generally speaking, he might have also asked, aren’t local rules favored by conservatives?

Something more might be amiss. Harvard professor, Alan Dershowitz, wrote in Supreme Injustice: How the the High Court Hijacked Election 2000:

"The end result was that a large number of voters who cast proper votes under Florida law but whose votes were not counted were denied their ... right to vote for president in order to ensure that the votes of others would not be diluted by the improper inclusion of ballots that might be invalid... This is the most perverse misuse of the equal protection clause I have seen in my forty years as a lawyer."

Arguably, of course, the votes were counted. This was a hand recount, following the automatic recount.

Even the scholarly Court of Appeals Justice and author, Richard A. Posner, who concluded in his book, Breaking the Deadlock, that Bush should have won on Article II grounds (it was the legislature’s prerogative to decide how the electors were chosen, not the Court’s), could not justify the equal protection argument.

Again, it is no surprise that Bush won this contest. The Republican majority Florida legislature was poised to pass new laws which would have given Bush the electors if the Florida Supreme Court ruling was upheld. No one can doubt that Jeb Bush would have signed a law favorable to his brother. Kathleen Harris, the Florida Secretary of State, was Florida’s Republican campaign manager and her rulings clearly favored Bush.

However, the Democrats appeared to be equally partisan. Consider this. The Democratic majority Florida Supreme Court holdings “happened” to help the Democrat candidate. On the Supreme Court, the entire liberal block dissented. Even odder, the conservatives argued for federal intervention, normally anathema to them according to conservative philosophy and the liberals insisted on state sovereignty, contrary to their usual playbook. Could this case have been more partisan? It really isn’t that surprising, as the Terry Schiavo matter since should have persuaded you that both parties or political movements easily cross that line whenever it suits them. Partisanship almost always trumps ideology.

Perhaps this election farce’s best feature is underscoring why judicial appointments are so enormously important and hard fought. Cases are often decided for purely political reasons. One new judge on a panel can change the tenure of a court for decades. It may have happened with the ascension of the relatively conservative Sam Alito to the Bench, replacing the more moderate Justice O'Connor. 

Should this case convince us that Supreme Court decisions are always politically decided? I don’t think so. Most Supreme Court decisions are not. Controversial ones, however, often are. And, of course, however rare, sometimes the Justices will surprise us, just when we least expect it.

1 comment:

  1. Anonymous2:46 PM

    Thanks for good stuff


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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .