How Bush v Gore from 2000 can Haunt 2012 — the Dissent — Part 3

In Part 1 of this series, I looked at the per curiam opinion in Bush v Gore, and how the Equal Protection argument, advanced and prevailed on by Bush, persuaded the US Supreme Court to, in effect, decide the outcome of the 2000 Presidential election.  In part 2, I examined how the other arguments raised by Bush won the approval of only a minority of the Court's Justices, two of whom are still on the Court today.

In this Part 3, I will take a quick look at the dissenters -- those who completely or largely rejected Bush's arguments on all federal issues in the case -- and identify which ones remain on the Court in 2012.

Speaking generally, the dissenters believed either that Bush had failed to raise any genuine federal questions or that the questions raised were simply not substantial enough to warrant the Court's intervening in what was, historically, a matter for each state to decide based upon its own internal laws.

(Please note the irony here: it was Gore, the Democratic candidate, who stood firmly on the side of  state sovereignty and in favor of a strong federalism, and Bush, the Republican candidate, who insisted that only an activist federal judiciary could make things right.  More on this later.)

Now to the dissents:

Three Justices -- two of whom, Ginsburg and Breyer, are still sitting -- vehemently objcted to the Court's interference with Florida's internal resolution of the voting controversy:

"The Constitution assigns to the States the primary responsibility for determining the manner of selecting the President electors.... When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers.  On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections.  This is not such an occasion."

They went on to describe the federal questions in this case as "not substantial." In particular the Article II issue does not constitute a legitimate problem but rather a false question: in carrying out its Article II responsibility to establish methods for choosing Presidential electors through the adoption of state election statutes, a state legislature must -- as with any lawmaking -- conform its proposed statutes to the higher authority contained in its state constitution, and if the state supreme court rules that the statute enacted by the legislature does not conform with the state constitution, then the legislation must be set aside; the Florida Supreme Court  determined that operation of the state election laws in this instance would contradict the higher imperative of the constitution's fundamental right to vote, and therefore the election scheme adopted by the legislature must be in effect reformed to satisfy the constitution which is the standard against which such legislation must be measured.   That a statewide recount would not be made under objective standards for evaluation of ballots, but under the common and subjective "intent of the voter" standard, these Justices didn't not find especially troubling, as "we have never before called into question the substantive standard by which a State determines that a vote has been legally cast."  Foreshadowing the mischief the Court's decision here would lead to, they wrote that constitutional principles ought not be applied too literally because:

"the machinery of government would not work if it were not allowed a little play in its joints. [citation omitted]  If it were otherwise, Florida's decision to leave to each county the determination of what balloting system to employ -- despite enormous differences in accuracy -- might run afoul of equal protection.  So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design."

In another dissent authored by Justice Souter (now retired) but joined in by Justice Breyer (still on the Court) and in part by Justices Stevens and Ginsburg (the latter is still on the Court), the majority was attacked for agreeing to hear the Bush petition in this case or in the prior case of Bush v Palm Beach, instead of leaving all of these contested matters in the hands of Florida state authorities for resolution.  Unlike Stevens and Ginsburg, Souter agreed that the Equal Protection claim did present a "meritorious" argument and that the majority correctly concluded that objective uniform standards for ballot evaluation should be established, but that the Florida judiciary should be instructed to develop those standards.  He made it clear that the reach of the Equal Protection Clause in weighing state mandated voting procedures is, or should be, limited:

"It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on."

It fell to Justices Ginsburg (still sitting), Stevens (retired) and Breyer (still on the Court) to deliver the bluntest criticism against the majority, insisting that the US Supreme Court was wrong not to defer entirely to the statutory interpretation of Florida statutes by the Florida Supreme Court.  They wrote [another irony alert, especially that we now know how they voted on Obamacare] to complain about the majority's disregard for a basic principle: "Federal courts defer to a state high court's interpretations of the State's own law.  This principle reflects the core of federalism, on which we all agree."  Breyer wrote a separate dissent, in which he insisted that the "Court was wrong to take this case," while admitting that an Equal Protection Clause issue may apply "in these very special circumstances" where "basic principles of fairness" suggest uniform standards of ballot review should have been adopted.  Nevertheless, he found that the US Constitution and federal statutes set out a "roadmap" for resolving disputes about electors and that roadmap "foresees resolution of electoral disputes by state courts .... it nowhere provides for involvement by the United States Supreme Court." And if a state cannot resolved an electoral dispute, then the matter passes into the hands of the US Congress, pursuant to the 12th Amendment and the Electoral Count Act.

In closing his dissent, the last part of the Court's complex set of opinions in Gore v Bush, Breyer, perhaps with great foresight and anxiety, wrote simply:

"What it does today, the Court should have left undone."

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