A WELL-REASONED "RIGHT TO VOTE" RULING IN THE EYE OF THE STORM: Why the Supreme Court's Election Opinion Was Neither Partisan Nor Political

I hate to pour cold water on the hopes of those who wish to inhabit a world full of election intrigue forever, but the Supreme Court's per curiam decision, issued Tuesday evening, in Gore v. Bush was neither partisan nor political. Rather, it was a constructive, restrained, and important advance in the jurisprudence of the Equal Protection Clause with respect to the fundamental right to vote.

The press and my colleagues in the law schools have sounded a persistent drumbeat of "5-4," claiming an ideological split on the Court. Accordingly, many commentators have indulged in name calling, labeling the Supreme Court "partisan." It is a falsifying oversimplification to claim that the Republicans gave the election to the Republican candidate while the Democrats would have given it to the Democrat. Indeed, it is an insult to the remarkable integrity and professionalism of these dedicated public servants.

In fact, while the collection of opinions issued by the Court does evidence some internal disagreement on the proper remedy, it also — and more significantly — provides evidence of general agreement among most of the Justices (7, to be exact) on the substantive, Equal Protection Clause issue the Court addressed.

To reach this brighter interpretation of the Court's decision, one must start at the beginning. The actual blame for the election scenario that resulted, and that prompted the Court to act, must lie with the defective machines and badly constructed voting processes in Florida. Although Florida does not stand alone with this problem, the razor-thin margin happened to roost there.

The Supreme Court, in its recent opinion, agreed that the cause of the dispute was plain, and lay with the Florida voting process: "This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter." And the Court strongly suggested the preventive measure that could save us from a future Presidential stand-off like this one, in 2004 or afterwards: "After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting." Indeed, Congress is already looking into a solution to the disparity in voting practices in Presidential elections, and debating what constructive action should be taken.

These machines and processes could, however, have been changed earlier — and the fault that they were not lies squarely at the doors of the people of Florida, and of the American people generally. As I discussed in a previous column, the blame for the inadequate voting systems ultimately lies with the people, who have taken their right to vote for granted to dangerous lengths. And with their voting officials who never fully informed the people how unreliable certain voting machines and ballots are.

In Palm Beach, for example, the citizens were fully aware that the ballot design had led to thousands of discarded votes in the last election. There was some discussion about how to address this problem, but the consensus was not, as one might think, to finance a more reliable system that would have been more protective of each individual's vote. Rather, the consensus was to send out instructions on how to use a confusing and unreliable system.

Unreliable voting machines are directly attributable to a citizenry too unconcerned about their right to vote to demand better systems, and to elected representatives who have assumed (falsely) that accurate voting machines should not be a high financial priority in the people's budget. The Court's per curiam opinion rests on this factual premise.

In Florida, the people's and their representatives' cavalier attitude toward the right to vote was compounded by the attitude of a State Supreme Court that apparently was convinced that state law is insulated from federal law — and even from federal constitutional law.

Some have accused the pro-federalism, "states' rights" Justices (who include Chief Justice Rehnquist, and Justices O'Connor, Scalia, Thomas, and Kennedy) all of whom were in the majority in Gore v. Bush) of hypocrisy — contending that in the past that they too, like the Florida court, have held the view that a state court's interpretation of state law is inherently sacrosanct from any federal control. But in fact, that is a caricature of their view.

These Justices' federalism is much more nuanced than that. The Court's renewed interest in federalism has been grounded in a fundamental belief in the superiority of the United States Constitution over state law — not in the bare notion that states have rights that automatically trump all other legal requirements, regardless of the state law's object. This federalism is entirely consistent with — and indeed, counsels in favor of — close federal court oversight of state elections for the most important federal office, the Presidency.

The 5-member per curiam opinion (joined by Chief Justice Rehnquist and Justices O'Connor, Kennedy, Scalia, and Thomas) identified three violations of the Equal Protection Clause in this dispute.

First, the Court held it was a violation for different standards of counting the voter's intent to be used, between and within counties that had the very same voting machinery. Second, the Court held that it was a violation for the Florida Supreme Court to treat "undervotes" (punch cards that were inadequately penetrated, so that their marks were ignored by the voting machine) differently from "overvotes" (punch cards whose marks were incorrectly read by the machine as votes for two candidates, and therefore ignored). Third, and finally, the Court held that it was a violation for only a portion of a recount to be included in the numbers for Miami-Dade county.

Five Justices, then, held in their majority opinion that the Florida Supreme Court's mandated recount violated the Equal Protection Clause. And two other Justices expressed very similar opinions— for a total of seven. Specifically, Justices Souter and Breyer agreed that there were clear Equal Protection violations involved in the recount, because different standards were applied to "identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics." The two Justices could "conceive of no legitimate state interest served by these differing treatments of the expressions of voter's fundamental rights. The differences appear wholly arbitrary."

Common sense and constitutional doctrine tell us that these seven Justices must be right — and the two holdouts, Justices Stevens and Ginsburg, must be wrong. The Florida Supreme Court opinion never provided any justification for permitting the differing standards that ultimately troubled the seven Justices. Instead, the Florida Court simply accepted these arbitrary, irrational differences in the treatment of identical ballots, allowed these differences to remain, and papered over their differences by placing them all under the umbrella of indications of "voter intent." Then it moved on to order a recount, knowing it would be tainted by these arbitrary differences in treatment of different ballots — and thus of different voters, even though all these voters had the very same constitutional right to vote.

Once this point is made clear, and the seven-Justice agreement is understood, it is easy to see that the Supreme Court's Gore v. Bush opinion, in fact, is not — as many have claimed — an instance of a politically divided Court differing on the identification of a fundamental right under the Equal Protection Clause. Instead, the charge of partisan bias melts away. Particularly fatal to the claim of partisanship is the identity of the two Justices who did not join the near-consensus. Justice Stevens was appointed by a Republican; Justice Ginsburg, by a Democrat. Without question, the press and commentators disagree with me on this point, but they are operating from a false factual base.

After basically agreeing on the proposition that the Equal Protection Clause, and the fundamental right to vote had been violated, the Court turned to the issue of what remedy was proper. Here judicial philosophy did seem to make a difference, and did divide the Court. But still, here, the charge of political partisanship is unwarranted.

The per curiam opinion, joined by the five Justices most devoted to federalism, simply deferred to the intent of the Florida state legislature and the holding of the Florida Supreme Court, regarding the final deadline for contests. The Florida Supreme Court had determined that the Florida legislature intended to take advantage of the "safe harbor" provision in the federal statute, 3 U.S.C. section 5.

That statute makes Florida's (and every other state's) electors immune to congressional challenge, but only as long as they are selected by December 12. Accordingly, the five Justices who joined the per curiam opinion held that it was too late, when the Gore v. Bush decision was handed down, to conduct a recount that fulfilled the Constitution's equal protection guarantees — a recount which would have required much more care and process than the defective recount originally mandated by the Florida Supreme Court.

The majority's holding that there was no time for a recount was entirely reasonable. When the decision came down, there were only two hours left of the day of December 12 — hardly enough time to recount votes in a high school election, let alone a Presidential one.

Moreover, for a recount to be constitutionally proper, according to the majority of the Court, it would not only have had to include manual review, under neutral principles, of every erroneous vote (whether over- or under-) in the state of Florida. It would also have required that judicial review again be available, by courts up through the Florida Supreme Court, and perhaps even again the U.S. Supreme Court — and there is little doubt, based on past practice, that the candidates would have sought that court review, perhaps repeatedly.

With these stringent requirements, it would not only have been impossible to recount on the day of December 12 itself, it would also have likely been impossible to recount before December 18, when electors are to vote — even if the Court were to have added back into the calculation the time period during which it stayed the Florida court's judgment.

In contrast, Justices Souter and Breyer — who are less inclined than the majority, as a general matter, to take federalism principles as seriously to heart — gave short shrift to the Florida legislature's intent to meet the December 12 deadline. They would have permitted the recount to go forward, under neutral principles to be devised by the Florida Supreme Court, until December 18. And of course, Justices Stevens and Ginsburg, believing there was no constitutional violation at all in the Florida recounting scheme, would simply have remanded to let the recount go forward as originally ordered.

Justice Stevens' strong words in dissent received most of the early press attention, but the more interesting paragraph lies at the end of the per curiam opinion. There, the Court stated that

"[n]one are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, though their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

These are words of comfort to remember and repeat. When this country finds itself in turmoil in the political arena — and in a situation in which other countries might take the muscular way out, with violence and even a coup — we have the courts, and especially the Supreme Court, to resolve legal disputes consistent with the Constitution and the rule of the law. This is so even when the courts might be reluctant to step in (because they understand the dangers in political waters) — as this Supreme Court plainly demonstrated a week ago. After one reads these opinions carefully and attentively, the two charges that cannot stand are those of political partisan bias and of judicial activism.

As this case works its way through the years, and as it is interpreted within a broader historical context, rather than the punditry of the day, governments and the people will be forced to better protect the people's right to vote — through fair counting procedures guaranteed by the Equal Protection Clause, and through ever-better machines that are mandated in the political process. But for this close election, we never might have so fully understood how precarious our voting rights were, and how carelessly they were being guarded on Election Day. Now we know.