The Supreme Court's ruling in Bush v. Gore could have implications well beyond this year's presidential election, expanding the constitutional guarantee of equal protection of the laws in a way that--if the court sticks to its analysis--could significantly increase the federal role in state election law disputes.
By holding that the equal protection clause can be applied to the way votes are counted, the court has potentially opened the door to new litigation that would test the constitutionality of many currently accepted state voting procedures.
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"It's a potentially momentous decision," says attorney John P. Elwood, a former law clerk to Justice Anthony M. Kennedy. This could be "the voting rights equivalent" of the Warren Court's famous rulings in defendants' rights cases of the 1960s, which opened up the previously state-controlled world of police stations and county courts to federal court scrutiny, Elwood said.
To be sure, the Warren Court had already brought the federal courts into parts of the electoral arena that had previously been considered pure state matters, especially in a 1964 decision, Reynolds v. Sims, that subjected state legislative apportionment plans to scrutiny under the equal protection clause. Election laws in many states continue to be subject to challenge in federal court under the 1965 Voting Rights Act, which was designed to eliminate racial discrimination in elections.
However, noted John Yoo, a professor of law at the University of California's Boalt Hall Law School, that type of federal intervention concerns what happens "before the votes are cast. This is the first time the Supreme Court has said we'll get into what happens after the vote."
The ultimate impact of the court's ruling will depend on a number of variables, starting with the Supreme Court's own future decisions explaining the true scope of its holding Tuesday.
The unsigned "per curiam" ("for the court") opinion included language suggesting that the court was ruling as narrowly as possible. It said, for example, that "our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," and added that "[n]one are more conscious of the vital limits on judicial authority than are the members of this Court."
Still, one example of a possible new federal legal issue to grow out of the case, legal analysts said, might be a suit challenging state laws that permit poor counties to use voting equipment that generates larger numbers of uncounted ballots while wealthier counties can afford to use modern, more sensitive voting equipment.
The plaintiffs in any such actions might be lower-income minorities--the very segment of the electorate that seems least accepting of the Supreme Court's decision denying Vice President Gore's request for manual recounts--because they are more likely to vote in areas with antiquated machinery that produces a disproportionate number of "undervote" ballots.
Apparently sensing that such a case might grow out of the Bush v. Gore holding, the court noted that it was not directly deciding whether "local entities . . . may develop different systems for implementing elections."
Another important factor shaping the ultimate scope of Tuesday's holding will be the capacity of states to modify their election laws to take it into account. As Justice John Paul Stevens noted in his dissenting opinion, many states already have a relatively loose "intent of the voter" standard for evaluating ballots in manual recounts. They may now move to revise those.
"One obvious effect of the decision," said Trevor Potter, a former chairman of the Federal Election Commission, "is that a statute requiring merely that you look at the intent of the voter will be too vague to meet equal protection. All states are going to have to have more specific standards for recount and contest provisions that apply statewide."
The equal protection claim that ultimately won the recount case for Texas Gov. George W. Bush was not, initially, considered a likely candidate for federal court review, much less victory at the Supreme Court.
The Bush attorneys first raised it in federal district court in Miami on Nov. 11. At that time, the Bush argument was that Florida's law providing for manual recounts was, on its face, unconstitutional, because it included no standards for judging voter intent.
Lower courts rebuffed Bush's efforts to halt the recounts on those grounds, and the U.S. Supreme Court refused to include the issue in the subjects to be considered when the justices granted Bush his first appeal, which the court heard Dec. 1.
The Bush team's equal protection claim made it into the Supreme Court this time around on a slightly different basis. Bush's lawyers did not directly challenge the constitutionality of Florida election law, but rather argued that the Florida Supreme Court's Dec. 8 opinion ordering a manual recount of the statewide "undervotes" should be stopped because it lacked any consistent guidance for determining voter intent.
The court's opinion Tuesday night suggested that it was too late to remedy the equal protection violations inherent in the manual recount procedures prescribed by the Florida court, and thus the recounts had to be halted. However, the court might have had time to rule definitively on the equal protection problems in Florida's recount law, and implement a remedy, if it had agreed to hear Bush's appeal when he first brought it.
Meanwhile, because its per curiam opinion reached a result in the case solely on the basis of the equal protection issue, the court ending up leaving no clear controlling precedent on the questions that had consumed so much of its time: whether the Florida court had changed the law in violation of Article II, Section 1, which grants full authority over the selection of presidential electors to state legislatures; and whether the Florida court had "violated" the 1887 electoral law.
The concurring opinion of Chief Justice William H. Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas implied strongly that the answers to both questions would be yes--that state courts should have little latitude to interpret statutes bearing on the selection of presidential electors, and that the time frames set out in the 1887 law are meant as actual deadlines for the conclusion of a state's election contest procedures.
But Justices Sandra Day O'Connor and Anthony M. Kennedy apparently balked at such a set of holdings, and these points were basically omitted from the unsigned opinion that ultimately commanded a majority of the justices.
Instead, the opinion they joined hinged on the assertion that the Florida court itself--responding to admonitions in an earlier U.S. Supreme Court opinion--had noted the legislature's wish to take advantage of the "safe harbor" benefit included in the 1887 law, which would kick in only if the state had a slate of electors certified by Dec. 12. For that reason, the court said, there would be no time to permit a manual recount under more uniform standards, as dissenting Justices Stephen G. Breyer and David H. Souter had suggested.
The dissenting opinions themselves are noteworthy for the amount of space they devote to attacking the arguments in the concurrence, rather than focusing on the unsigned opinion for the court.
Indeed, Justice Ruth Bader Ginsburg's opinion repeatedly addresses "the Chief Justice," almost as if he were the author of the opinion for the court.
To former Supreme Court clerks familiar with the inner workings of the court, this suggests that the concurring opinion signed by Rehnquist, Scalia, and Thomas started out as the opinion for the court, but that amid the court's hectic decisionmaking process Kennedy and O'Connor dropped out at the last minute to cobble together the narrower per curiam opinion.
Two former Supreme Court clerks noted that the per curiam opinion bore the hallmarks of what they recognized as Kennedy's writing style.
"That's what it looks like," said Yoo, a former clerk to Justice Clarence Thomas. "The dissents don't address the per curiam; they barely mention it at times. The per curiam was probably written later in the day, once the chief's opinion was not going to get five votes."
Majority opinion (per curiam)
Joined by Chief Justice William H. Rehnquist, Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas.
The majority said the recount ordered by the Florida court was so standardless and varying that it violated the constitutional guarantee of equal protection of the laws. "The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters, necessary to secure the fundamental right."
It also said it was too late to send the matter back to the Florida courts to be fixed. Federal law set a Dec. 12 deadline for the state to conclude any dispute over the electoral outcome in order for the slate of electors to be immune from any congressional challenge. The Florida Supreme Court, in its opinion, said the legislature wanted to take full advantage of that "safe harbor."
"Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed."
Concurring Opinion
Joined by Rehnquist, Scalia, and Thomas. Rehnquist, Scalia and Thomas joined the majority opinion but said there were additional reasons for reversing the Florida Supreme Court.
They noted that the U.S. Constitution grants full authority to state legislatures to set the methods for picking members of the electoral college. "If we are to respect the legislature's Article II powers, therefore, we must ensure that post-election state court actions do not frustrate the legislative desire to attain the 'safe harbor' provided by" federal law.
"The Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required," in violation of the Constitution and in contravention of the state's desire to have its slate of electors protected under the safe harbor law. In addition to the Dec. 12 deadline, that law requires that election disputes be decided under rules in place before Election Day.
Souter Dissent
Stephen G. Breyer joined full dissent. John Paul Stevens and Ruth Bader Ginsburg joined all but the equal protection analysis.
The court should not have taken either Florida election case. Rather, it should have let the proceedings continue, which might have avoided any need for Supreme Court review.
The "safe harbor" problem is "not serious" because the only sanction for failing to comply with the law is losing the guaranteed certification. In any event, "that determination is to be made, if made anywhere, in the Congress."
The Florida court's interpretations of its own state's election laws "raise no substantial question" under the Constitution in terms of whether the Florida court impermissibly intruded on the legislature's authority.
In the part joined by Breyer, Souter said that there is a "meritorious argument for relief" on the equal protection argument. However, "In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days [Dec. 18]. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments."
Stevens dissent
Joined by Ginsburg and Breyer.
The court's "settled practice" in resolving disputes about the meaning of state laws is to accept the opinions of the state's highest court. On "rare occasions" federal law or the Constitution "may require federal judicial intervention in state elections. This is not such an occasion."
Neither the "safe harbor" law nor the Constitution "grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law."
In addition, the Florida Supreme Court's failure to specify in detail the precise manner in which the intent of the voter is to be determined does not rise to the level of a constitutional violation. Even assuming there was an equal protection problem, it was wrong for the majority to cut off the recount. The federal safe harbor law gives Congress rules of decision to follow when picking among conflicting slates of electors. It does not "prohibit a state from counting what the majority concedes to be legal votes until a bona fide winner is determined."
Breyer Dissent
Joined by Stevens and Ginsburg, except the equal protection analysis, and by Souter in part.
"The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume."
On equal protection, the absence of uniform standards "does implicate principles of fundamental fairness."
"Nonetheless, there is no justification for the majority's remedy, which is simply to ... halt the recount entirely." Instead, the case should be sent back for recounting all undercounted votes in accordance with a single uniform standard.
"The selection of the president is of fundamental national importance. But that importance is political, not legal. And this court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election. ...
"What it does today, the court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards."
Ginsburg dissent
Joined by Stevens, and by Souter and Breyer on the court's failure to show proper deference to the Florida Supreme Court.
"This case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the state's election code. The court surely should not be bracketed with state high courts of the Jim Crow South."
Article II, granting state legislatures the power to determine methods of picking electors, "does not call for the scrutiny undertaken by this court. . . . Were the other members of this court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court."
Joined by Stevens, Ginsburg said there was no "substantial equal protection claim." She said, "I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount."
