The Long Shadow of Bush v. Gore:
Are Its Lessons Relevant to the Decision Whether to Seat Florida and Michigan Democratic Delegates?

By EDWARD LAZARUS

Monday, Mar. 17, 2008

The long shadow of Bush v. Gore continues to haunt American politics. Most recently, Senator Hillary Clinton's presidential campaign has invoked the "lessons" of Bush v. Gore in an attempt to get the Michigan and Florida delegations - currently disqualified under Democratic National Committee rules -- seated at the Democratic Convention this summer.

In this column, I'll discuss the long-term ramifications of Bush v. Gore, and consider how it applies to the Michigan/Florida debate in particular.

While the Bush v. Gore Majority Proclaimed The Case to Be Unique and Exceptional, Will It Nevertheless Have Long-Term Effects?

When the Supreme Court first issued the Bush v. Gore decision, the immediate consequences were clear enough. A narrow five-Justice majority, deploying a transparently inadequate legal theory, had hijacked the constitutionally-mandated process for deciding contested elections and had declared George W. Bush, that majority's favored candidate, to be the winner. In what many viewed as a nakedly partisan act, the Court majority had erased the sometimes hazy but always essential line separating law from politics, and did real damage to the Supreme Court's moral standing as a neutral guardian of the rule of law.

One potential silver lining to the decision, however, was the majority's self-conscious attempt to limit the precedential value of its shoddy handiwork. Although the main purpose of Supreme Court opinions is to enunciate generally applicable legal rules, the opinion in Bush v. Gore, in sharp contrast, declared itself to be "limited to present circumstances" - that is, the Court tried to make it good for one day, and one day only.

Conservative defenders of the result in Bush v. Gore (if not the opinion's reasoning) have picked up on this exceptionalism to justify the decision. They have recast the entire episode as a unique, one-time-only judicial intervention that, they say, was urgently necessary to avert a national political crisis.

Leaving aside the merits of this view, it was always too much to hope that Bush v. Gore would be without long-term ramifications, both legal and political. To the contrary, ever since the Court issued the decision, people have tried to invoke our national Bush v. Gore experience in service of one agenda or another, both in court and outside it.

A new chapter is now unfolding in this saga, with the controversy over the Florida and Michigan Democratic delegates.

The Facts Regarding the Fight Over the Florida and Michigan Delegates' Status

The seed of the conflict was planted when Michigan and Florida decided to violate Democratic National Committee (DNC) rules and hold their primaries prior to February 5, 2008. The Democratic National Committee had declared in advance that if states violated the rules, their primary results would not be recognized and their respective delegations would not be seated at the Democratic National Convention. For this reason, all the Democratic candidates mutually agreed that they would not (and did not) campaign in either Michigan or Florida. Clinton, however, held fundraisers in Florida.

Indeed, the Democratic candidates so distanced themselves from these primaries that, in Michigan, Hillary Clinton was the only candidate whose name even appeared on the ballot. She received 55 percent of the vote; 40 percent of voters chose "uncommitted." Meanwhile, in Florida, Clinton won 50 percent, while Barack Obama garnered 33 percent.

Now, the Clinton campaign is insisting that the Party must seat the delegates already selected in the Michigan and Florida primaries, on the theory that what Bush v. Gore taught us is that "every vote must count." Is that argument correct?

Absolutely not. The lessons of Bush v. Gore actually cut precisely the other way - in favor of either not seating the delegates, or of choosing new delegations through new caucuses or primaries.

The First True Lesson of Bush v. Gore: The Value of Consistency and Integrity

To change the rules now - after the fact - would be to adopt some of the very worst aspects of the Bush v. Gore debacle. Indeed, to invoke the Bush v. Gore experience to support such a rule change is a cynical ploy that would only further erode the integrity of our governmental processes.

One of the most infuriating and integrity-destroying aspects of Bush v. Gore was the charge of hypocrisy that was so easily (and, I think, accurately) leveled against the Justices in the majority. Here were five conservative Justices who previously had championed extreme deference to state court judges. Now, suddenly, these five were invoking a previously-unheard-of approach to the Equal Protection Clause to override the Florida Supreme Court's interpretation of the state's own election laws. In the case of Chief Justice William Rehnquist and Justice Sandra Day O'Connor, the hypocrisy was especially acute. Both suddenly were calling the election for Bush on equal protection grounds, yet both had specifically argued in a prior case, Anderson v. Celebrezze, against applying equal protection principles to presidential elections because election procedures were a matter of state law.

Of course, when folks who are supposed to be operating according to a set of neutral principles toss those principles aside for reasons of expedience, the judicial process gets seriously degraded. And, thus, one key lesson of Bush v. Gore is the importance of consistency to the concept of integrity.

The application of this concept to the Democratic primary fight is clear-cut. Originally, when her own interest had yet to be implicated, Clinton was fully supportive of the DNC's decision not to recognize the results of the then-still-to-be-held Michigan and Florida primaries. Indeed, Clinton remarked about the Michigan primary earlier in the race "It's clear this election [Michigan is] having isn't going to count for anything."

For Clinton to sing the opposite tune now - after the uncontested primaries came out her way - is a close cousin to what the conservative Justices did in Bush v. Gore. And this opportunistic about-face merits the same derision those Justices' reversal deserved.

The Second True Lesson of Bush v. Gore: Set the Rules Clearly, Then Stick to Them

Another important lesson from Bush v. Gore is the value of having a clear set of rules established up front - and then sticking to them. At every stage of the Florida vote counting, one side or the other felt that rules were being manipulated in a way that was results-driven. Each side felt the rules - rather than being applied according to any neutral or logical principle - were being twisted simply to reach a desired outcome.

Thus, Republicans thought the Florida Supreme Court, dominated by Democrats, was playing fast and loose with the rules for recounting, in order to tilt the election to Al Gore because they preferred him. And by the same token, many Democrats now think that the five ardent Bush supporters on the Supreme Court changed the traditional rules for overseeing elections and deciding contested elections, in order to hand the presidency to Bush because they preferred him.

In a perfect world, the judges called upon to oversee the Florida recount would have been completely ignorant of which counting rules would benefit which candidate when they made their decision. That way, no partisan sympathies could have swayed them from principle - nor would they have been susceptible to this charge from supporters of the losing side. But, of course, we don't live in that perfect world - and that is why, when possible, individual decisionmakers must set strong rules in advance, before they are certain of their precise impact, and then stick to them.

Here again, the application of this experience to the current primary campaign is straightforward. The DNC did, in fact, establish a clear set of rules at a time when it was far from clear who would benefit from disqualifying the Michigan and Florida delegations. Absent the consent of both candidates, there is arguably no way to change the rules now in a way that can rightly be called fair.

Understandably, some observers are nevertheless concerned about what they see as the disenfranchisement, by the rule-breaking of state party leaders, of Florida and Michigan voters. Yet even from this perspective, Clinton's solution is by far the least fair of those proposed. New primaries in which both Obama and Clinton are on the ballot is a reasonable proposal. But honoring a Michigan primary in which Obama was not even on the ballot would be nothing less than appalling.

Honoring a Florida primary would be only a little less offensive. There, Clinton had a significant advantage simply due to her last name and the popularity of her husband, and Obama had no chance to remedy that by campaigning there. Moreover, she chose to do fundraisers there and he - with integrity - did not, and the fundraisers doubtless boosted her image in the eyes of Florida voters.

A Third-World Election for a Country That Is Supposed to Be a Beacon of Freedom and Fairness?

Seen in this light, Clinton's insistence on an after-the-fact rules reversal - one in which the Michigan and Florida delegates simply would be seated as if no rule had ever been broken -- that can only benefit her must be seen as pure chutzpah.

Imagine a somewhat different scenario: In a former Eastern bloc country struggling to establish a democracy, the wife of the nation's former leader is running for the presidency. After a series of campaign setbacks, the candidate tries to change the nation's election rules to increase her odds of beating an opponent who is ahead in the voting, and who otherwise looks very likely to beat her. As part of this campaign, this candidate describes as "fair" a primary contest in which her name alone appeared on the ballot.

Under these circumstances, wouldn't our State Department be decrying this threat to the integrity of this fictional country's democratic processes? Wouldn't Jimmy Carter be on the next plane to safeguard the free and fair nature of this country's elections?

A country is measured by the lessons it takes from its most trying moments. We are being measured now.


Edward Lazarus, a FindLaw columnist, 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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