How Bush v Gore from 2000 can Haunt 2012 — the “Other Question” — Part 2

In Part 1 of this blog series, I explained:

"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."

"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."

Part 1 dealt with the Equal Protection claim, on which Bush did prevail, and the result was a (bad, in my judgment) US Supreme Court decision that, in effect, appointed George W. Bush President of the United State of America.

Will 2012 reap the whirlwind set in motion in 2000?

It seems likely, IF tomorrow's Presidential election does turn out to be as close as most pollsters are predicting.  Already litigation over extended voting hours, absentee ballots, and voter identification laws has been commenced in a number of courts, including the "battleground states" of Ohio and Florida.

But what else -- beyond the Equal Protection claim -- occurred in Bush v Gore that might become significant in the days ahead?

Three justices -- two of whom (Scalia and Thomas) are still on the Court -- wrote a concurrence to the Court's per curiam opinion, to add other grounds for reversing the Florida Supreme Court's order.  These justices agreed that that the state court violated the US Constitution's 14th Amendment (the second question before the Court) but they would also have held that that court violated Article II (the first question).

Starting with the premise that authority for selecting Presidential electors is rooted in that part of Article II which provides each State shall appoint Presidential electors "in such Manner as the Legislature thereof may direct...." these Justices pointed to a decision of the Court from 1892 which concluded that authority to fix the method of appointing electors was "exclusively" granted to the respective state legislatures by Article II and therefore any "significant departure from the legislative scheme" always raises a federal constitutional issue.  In interpreting Florida's legislative scheme, these Justices found critical the fact that the legislature clearly intended (see Bush v Palm Beach) for Florida's procedure to come within the ambit of the safe harbor created by 3 USC 5; that statute establishes a rule of finality for a state's slate of electors, putting it beyond challenge, provided the electors "are chosen under laws enacted prior to election day, and if the selection process is completed six days prior to the meeting of the electoral college."  Understood from that perspective, any construction or interpretation of Florida election laws that might constitute a change in the election laws enacted by the legislature before election day must be rejected by a federal court, as a proper "respect" for the state legislature's "Article II powers" requires that "post election state-court actions do not frustrate the legislative scheme" and thereby render the safe harbor untenable.

Looking at the order of the Florida Supreme Court, these Justices concluded that the Florida Supreme Court had in effect modified the Florida legislature's scheme that delegated to the proper election officials in the various counties (members of the executive branch of state government) responsibility to certify popular vote tabulations; furthermore, the state court had moved the deadlines set by the legislature under which those counties were to conduct and conclude their certifications.

Consequently there existed a federal constitutional violation, not only of the Equal Protection Clause, but also of Article II.



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