The Federal Appellate Decision Delaying the Recall:
Bush v. Gore's Tragedy Repeats Itself as California's Farce

By EDWARD LAZARUS

Thursday, Sep. 18, 2003

Bush v. Gore was a tragedy. In one of the most nakedly partisan opinions in Court history, a narrow five-Justice conservative majority handed the presidency to a political compatriot. It did so by jerry-rigging an analytically indefensible argument that the Florida Supreme Court's approach to the hand recount of punch card ballots violated the Equal Protection Clause of the federal Constitution.

Now the farce is in full swing. Three quite liberal judges from the Ninth Circuit, the most liberal court of appeals in the country, have taken Bush v. Gore's much-criticized principles for judicial intervention into elections and applied them in the California recall.

More specifically, the three judges used these principles to change the date of the already bizarre California recall election to one far more favorable to Democratic and liberal interests. (Because the new election date will coincide with a Democratic presidential primary in March 2004, anti-recall and pro-Democratic forces will get a tremendous boost from increased turnout of their constituencies at that time.)

There is, of course, a delicious political irony in watching judicial liberals hoist the conservatives on their own petard. But the intellectual amusement just isn't worth the price. Our judicial branch is suffering an integrity meltdown. And that meltdown could not come at a worse time.

For the next decade or more, this country is likely to be engaged in a nasty tug-of-war between our interest in protecting national security (reflected in measures such as the Patriot Act) and our civil liberties. That is a struggle in which the judiciary must play a strong and difficult mediating role.

This job will be all the harder if the judicial branch continues to undermine its credibility by issuing a decision such as Bush v. Gore, and the recent recall decision. These decisions are plainly little more that political tit-for-tat, dressed up in supposedly august judicial robes, and the public will doubtless perceive them as such.

Bush v. Gore: The Court's Attempt to Limit the Decision to the Florida Recount Alone

Sadly, the general scenario, if not the particular case of the California recall, was entirely predictable. As soon as Bush v. Gore was issued, it was inevitable that future challenges would disrupt future elections, and that when they did, political bias on the part of the judiciary (whether apparent or actual) would be blamed.

In Bush v. Gore, the Supreme Court invoked a very broad view of the Equal Protection Clause to stop the Florida recount. This view placed great weight on the right of every individual voter to have his or her vote counted on an equal basis. This insistence on equal vote counting raised the obvious possibility that a host of Equal Protection-based challenges would be brought in subsequent state and federal elections.

To critics of Bush v. Gore - and specifically to those who viewed the decision as a purely political power play - this limiting disclaimer was among its most infuriating sentences. By so blatantly announcing that the decision was good for this case and this case only, the Bush v. Gore majority showed just how result oriented, politically-motivated, and unprincipled the whole enterprise was.

Nevertheless, whether the Court liked it or not, the principles it invoked were applicable far beyond the case in which they were proclaimed. They simply could not be limited to the underlying Florida recount facts, despite the Court's attempt to do just that. It would have been as if the Court had said Brown v. Board of Education was limited only to that particular school, or that particular State.

The Inevitable Use of Bush v. Gore to Challenge Antiquated Voting Technology

Thus, from the moment the Court handed down Bush v. Gore, liberal commentators and legal strategists starting talking about how to salvage something good from this nightmare of a ruling. They quickly seized on a strategy: Forget Bush v. Gore's self-declared limitation on its own precedential value and take seriously its vindication of the right to vote.

In particular, liberal strategists viewed Bush v. Gore as a vehicle for challenging antiquated voting technology that tended to undercount votes. Such technology was especially prevalent in minority neighborhoods that lean Democratic, meaning that the result of its use tends to be that minority, and Democratic, votes are the ones that are undercounted.

The Ninth Circuit decision regarding the California recall election followed exactly this approach. The reason the court delayed the recall election was that, if it had not, six counties in California would have had to use an antiquated punch-card ballot. The result, in aggregate, would have been to disenfranchise tens of thousands of voters.

Why the Ninth Circuit's Decision Is More Convincing Than Bush v. Gore

The Ninth Circuit's decision was not an unreasonable application of the principles on which Bush v. Gore was based. (At the same time, Bush v. Gore, as columnist Vikram Amar will discuss in his column tomorrow, by no means compels the Ninth Circuit's ruling).

Indeed, in at least one respect, the case for delaying the California recall vote was more compelling than the case for stopping the Florida recount was when the U.S. Supreme Court decided Bush v. Gore.

For this reason, unlike Bush v. Gore, the Ninth Circuit's decision is a pure attempt to vindicate the right of every individual to have his or her vote counted. It favors both tabulation accuracy (always reflecting the voters' intention) and consistency (all voters' votes are counted alike, rather than some being counted by old technology, and some by new).

Why the Ninth Circuit Decision Is, Though Reasonable, Ill-Advised

Despite this virtue, the Ninth Circuit's recall opinion remains ill-advised. The California recall election, strange animal that it may be, derives legitimately from the unique procedures of the state's election laws. Those laws, which reflect the state's commitment to progressive, democratic values (however imperfectly) are entitled to respect and deference - even from courts.

But rather than accord such deference, the Ninth Circuit has applied and extended a doctrine of judicial intervention in state elections that was born of politics, in Bush v. Gore, and was poorly conceived to begin with - as the Supreme Court's embarrassing attempt to limit that decision to its facts betrayed.

Moreover, the Ninth Circuit has done so in a setting that smacks of the same kind of partisanship that so fatally infected Bush v. Gore. As of the day its decision was issued, it appeared Gray Davis would be recalled. As of the day the election will now be held, the result may be very different, and more pro-Democrat, for the reasons of timing that I mentioned earlier. As a result, like Bush v. Gore, the recall decision offered the ugly specter of judges at least appearing to vote on party lines.

The Importance of Preserving the Judge/Legislator Distinction

If this decision were an isolated incident, perhaps it would not matter except to Californians. But it is not, and it should matter to every American - for it occurs at a time when ideological divisions have already seriously eroded the integrity of the judicial branch.

The problem starts at the top. At the U.S. Supreme Court, the conservative majority has consistently to undo what it perceives to be the unprincipled excesses of the Warren Court era by issuing its own set of unprincipled counter-rulings. In the U.S. Senate, Democrats turn the confirmation gridlock tables on the Republicans, who were just getting back at the Democrats, and so on.

As a result, at least in the lawyers' world I inhabit, cynicism abounds. And perhaps that is okay. Perhaps we have come so reflexively to follow judicial rulings that the equating of law with politics is irrelevant. Like Al Gore, we may obey and at the same time, respectfully disagree. And we may keep on doing so even when the decisions become more and more questionable, and apparently more and more political.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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