How Bush v Gore from 2000 can Haunt 2012 — the “Equal Protection” Standard — Part 1

In 2000 the US confronted its closest Presidential election since 1876, and the outcome was in doubt for a month -- until Gore (D) withdrew from the contested race after the US Supreme Court, in the infamous Bush v Gore decision, made his continued challenge of the Florida electoral result hopeless for all practical purposes.

As the court announced at the beginning of its written opinion, Bush (R) asked (1) whether the Florida Supreme Court's order for a statewide manual recount of ballots created "new standards for resolving Presidential election contests" and thereby violated Article II of the US Constitution and failed to comply with the statutory provisions of 3 USC 5 and (2) whether Florida's use of "standardless manual recounts" violated the 14th Amendment.  While the first question resulted in split conclusions by various groups of Justices and several concurring and dissenting opinion, and no clear answer from the Court, seven of the nine Justices agreed on the answer to the second question and determined that the post-election recount ordered by the Florida Supreme Court did violate the Equal Protection Clause of the 14th Amendment to the US Constitution (the Florida Supreme Court's order was reversed and the case remanded to it for further action, but with 5 of the Justices indicating that they considered any further recount ordered by the Florida court could not possibly comply with the US Supreme Court's decision  within the time deadline set by Florida statute for the selection of electors to be finalized by December 12 , the outcome inevitably would be that the recount would be permanently halted).

The per curiam part of the opinion  (that is, the Court's official decision, not attributed to any particular Justice) expressed the Court's reluctance to participate in a Presidential election, respecting "the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere .... [But because Bush and Gore had petitioned the courts] it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

The Court's discussion of the first question may become important in November 2012, but I won't mention it further in this blog, because it is just that in Bush v Gore -- dictum and dictum that didn't clearly receive support from a majority of the Court.

But the second question -- Equal Protection -- did yield a momentous decision.

In its companion decision Bush v Palm Beach County Canvassing Board  rendered eight days earlier (which must be recalled if Bush v Gore is to be understood), the Court (also per curiam but with NO separate dissenting or concurring opinions) had written that the right of a state's citizens to vote for Presidential electors originates not so much from its state constitution but from a direct grant of authority under Article II of the US Constitution, and so it is necessary to determine whether a state, in a national election, has satisfied that Article II standard.  That standard grants to each state legislature -- not its people nor its executive nor its courts -- the authority and power to determine the method by which that state appoints Presidential electors.

Returning to that basic proposition in Bush v Gore, the US Supreme Court wrote: "When the statue legislature vests the right to vote for president in its people [as every state now does], the right to vote  as the legislature has prescribed [emphasis added] is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter."

The per curiam opinion went on to say that "Equal Protection" of the fundamental right to vote goes beyond one man-one vote: "Equal protection applies as well to the manner of ... exercise [of the vote].  Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."

And while both sides before the court agreed with that proposition in the abstract -- and each contended that it was the true guardian of that value -- the Court concluded that the recount procedures adopted by the Florida Supreme Court were inconsistent with the obligation to avoid arbitrary and disparate treatment of different voters because there were no statewide specific standards to ensure that a a ballot cast in one county would be evaluated in the same manner as a ballot cast in another county.  For example, in Dade County, the people performing the recount might count a "dimpled" but unperforated paper ballot as a legal ballot because it appeared to clearly show the voter's intent, but the recounters in Palm Beach County might discard an identical "dimpled" ballot after concluding that it did not show the voter's intent.  "The problem inheres in the absence of specific standards to ensure ... equal application [of the intent of the voter standard].  The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary."

Other Equal Protection problems were cited by the Court, which observed that "The press of time [to conclude Florida's electors by December 12, a statutory deadline] does not diminish the constitutional concern.  A desire for speed is not a general excuse for ignoring equal protection guarantees."

And so the Court concluded that the recount process ordered by the Florida Supreme Court failed to meet the "minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authortiy of a single state judicial officer...." [emphasis added]  Noting, however, that "the problem of equal protection in election processes generally presents many complexities,"  the Court insisted that its decision in this case rested upon the necessity for rudimentary requirements of equal treatment and fundamental fairness "[when] a court orders a statewide remedy" and that the Court was NOT addressing any question as to "whether local entities ... may develop different systems for implementing elections."

Part 2 of this blog series will wrap up discussion of what Bush v Gore said, and set the stage for applying it and its interpretation by the different political parties and by other courts to several issues which may arise in 2012 IF the electoral vote turns out to be as close as current polls suggest it may be.

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