The New Republic

It's November 2, and the presidential election looks close in Ohio.
An army of lawyers are dispatched by the Bush and Kerry campaigns to
scour all 11,614 precincts in the state for any hint of voting
irregularities. Within hours, both sides have filed competing suits
in state courts challenging the standards for counting provisional,
absentee, and military ballots, as well as for the use of different
voting machines. Within days, Laurence Tribe and James Baker are
filing petitions to the Supreme Court, arguing that Bush v.
Gore--the case that decided the 2000 election--compels the justices
to intervene. The justices, who once confidently predicted that
Bush v. Gore would have no effect on future elections, are
horrified. Even the Bush v. Gore dissenters are shocked at the mess
the decision has created. After all, Justice Ruth Bader Ginsburg
called Bush v. Gore a "one-of-a-kind case" as recently as February
2003 in a speech to San Diego law students, adding optimistically,
"I doubt it will ever be cited as precedent by the court on
anything."Unfortunately, the hopes that Bush v. Gore would fade from memory
like an embarrassing dinner guest have proved to be wildly
mistaken. And, if the election is close, the nightmare scenario
described above seems all too likely to come to pass. During the
four years since Bush v. Gore, the case has emboldened political
candidates to file a tangle of litigation challenging election
procedures in federal and state races--from the recall of Governor
Gray Davis in California to the replacement of Senator Robert
Torricelli in New Jersey. Moreover, in response to the legalization
of politics that has followed Bush v. Gore, Democratic and
Republican legal swat teams have been assembled to challenge the
results of the 2004 presidential election if the vote in any state
proves close enough to provide the margin of victory in the
electoral college. And, even if the presidential election is not
close, Bush v. Gore will continue to haunt congressional and local
elections in November and beyond. "You could have dozens or even
hundreds of cases filed on the Wednesday morning after the
election," says Jack Goldsmith of Harvard Law School. "Given the
litigation opportunities in Bush v. Gore, you could have real, real
uncertainty for many weeks and months, not only about national
elections but about local elections. And it's likely to get
worse."

Bush v. Gore, you may recall, stopped the manual recounts in Florida
during the last presidential election for two reasons. Seven
justices held that Florida's failure to adopt uniform standards for
recounting "undervotes"--that is, ballots on which no vote was
clearly registered--violated a novel and previously unrecognized
constitutional right: the right of each ballot to be counted in
precisely the same way. Because five justices thought there was no
time to conduct a uniform recount, they said none could take place.
But, because they also failed to define precisely what kind of
equality they thought the Constitution required, their opinion
seemed to be tailored only to decide the 2000 presidential
election. Three justices also said that the decision by the Florida
Supreme Court to change the standards for recounting ballots
violated Article 2 of the Constitution, which assigns control over
presidential elections to the state legislatures.

Throughout U.S. history, of course, close elections have been
followed by litigation. But Bush v. Gore has exponentially
increased the legalization of politics. "There's no question that
Bush v. Gore has made courts more open and sensitive generally to
claims about voting breakdown," says Robert F. Bauer, who is
coordinating postelection legal challenges as national counsel for
the Democratic National Committee. The decision has been cited in
more than 30 lower court opinions during the past four years and
invoked in challenges to nearly every close election.

Moreover, Bush v. Gore has made candidates far more aggressive in
preparing for litigation. To contest the Florida recount in 2000,
Democrats and Republicans assembled legal teams on the fly. By
contrast, in anticipation of a protracted legal battle this
November, both the Bush and Kerry campaigns have made elaborate
preparations. The Bush campaign plans to have party lawyers in
every state, including more than 30,000 precincts. And the Kerry
campaign has set up an unprecedented national legal network
involving more than 10,000 volunteer attorneys who are already
preparing litigation over voting machines, voter registration
rules, and questions over which ballots are counted or
disqualified. "Every counting rule in every one of the key states is
already in a binder," says Bauer. "All of the background work has
already been done so we don't have the scramble that inevitably
occurred in Florida."

What's striking about the legal strategies of the Bush and Kerry
swat teams is how much they plan to rely on Bush v. Gore, which
turns out to be an inexhaustible font of rhetoric and novel
lawsuits. The first set of possible challenges involves claims
similar to those at the heart of the Florida mess in 2000--arguing
that each individual voter has the right to have his or her vote
counted in precisely the same way. When the Court invented this
right in Bush v. Gore, it was hard to fathom what the justices had
in mind, since the claim that each state had to have uniform voting
standards was impossible to reconcile with local control of the
electoral process, where there is enormous variation among voting
technology, hours of poll access, and rules about the
disqualification of ballots.

But the fact that no one knows what Bush v. Gore means is an
invitation to litigation. For example, the Help America Vote Act,
passed by Congress in 2002 to avoid another Florida debacle,
requires states to allow voters who claim they have been wrongly
denied access to the polls to cast "provisional ballots, " whose
status will be adjudicated later. Citing Bush v. Gore, among other
authorities, the Democratic National Committee is already supporting
suits in Florida and Missouri challenging state officials'
decisions not to count provisional ballots unless they are cast in
the voter's home precinct. Ohio, another swing state, initially
announced that it didn't plan to count provisional ballots cast in
the wrong precinct, but Ohio's secretary of state recently changed
his mind. His office expressed concern, however, that 88 Ohio
counties have developed 88 different systems for determining which
provisional ballots should be counted. Under Bush v. Gore, any
variation in the treatment of provisional ballots between counties
could provoke a flurry of challenges.

And challenges to provisional ballots are only one of any number of
possible postelection lawsuits alleging that individual ballots are
being treated unequally. In John Ashcroft's 2000 race against Mel
Carnahan's widow, for example, the polls were kept open in some
precincts beyond the statutory closing time--and, as Elizabeth
Garrett of the University of Southern California has noted, the
decision was questioned under Bush v. Gore. This year, Secretary of
Homeland Security Tom Ridge has expressed concern that a terrorist
attack might disrupt the election. If an attack were to shut down
polls in one part of a state but not another, would the courts allow
the election to be extended? No one knows. And, of course, if there
are calls for manual recounts in any of the battleground states,
there could be a repeat of the Florida debacle, since many states
have not heeded the Supreme Court's suggestion to adopt uniform
standards for identifying voter intent during a recount.

The right to have every individual ballot counted alike is the first
category of challenges Bush v. Gore has spawned. But soon after the
decision came down, a second category of lawsuits began citing the
decision for a very different principle: Variation in voting
technology disadvantages minority groups. Since Bush v. Gore,
scholars have established that optical scanners have a lower error
rate than the punch-card machines prevalent in urban areas that
contain large numbers of minority voters. And lawsuits challenging
the use of punch-card technology have been filed in California,
Georgia, Florida, and Illinois (where, in 2002, a district court
cited Bush v. Gore for the first time in questioning the use of
punch cards). In the forthcoming presidential election, there are
pending lawsuits over punch cards in swing states like Ohio. The
suits are unlikely to be resolved before November 2, which means
that the use of punch cards could be grounds for litigation after
the fact if the election is close.

Finally, there is a third category of possible Bush v. Gore
challenges in cases where courts or local officials have changed
election procedures. In Bush v. Gore, three justices--William
Rehnquist, Antonin Scalia, and Clarence Thomas- -insisted that the
Florida Supreme Court's decision to change the standards for
manually recounting ballots violated Article II of the Constitution,
which they said gives the state legislature exclusive control over
electoral arrangements in presidential elections. Making a similar
argument, New Jersey Republicans challenged the New Jersey Supreme
Court's decision to allow Frank Lautenberg to appear on the ballot
as a replacement for Torricelli, even though New Jersey law was
ambiguous about whether ballots could be changed if a vacancy
occurred fewer than 60 days before an election. In November, if
either the presidential election or any congressional election
results in a state court decision setting the electoral rules,
these decisions might also be challenged along the lines that
Rehnquist, Scalia, and Thomas suggested.

And, whether or not the presidential election is close, one lawsuit
may well loom on the horizon. On November 2, Colorado voters will
consider an initiative that would allocate the state's electoral
college votes proportionally among Bush and Kerry--rather than
awarding all of them to the winning candidate. If the initiative
passes, it's likely to be challenged as a violation of the state
legislature's prerogative to determine election procedures.

It is easy to blame the justices who joined the majority in Bush v.
Gore for their hypocrisy in radically accelerating the legalization
of politics. Scalia, for example, opportunistically joined Justice
Anthony Kennedy's opinion, which held that Florida's failure to
adopt uniform standards for manual recounts violated the equal
protection of the law. But Scalia can't really believe this,
because, in the rest of his jurisprudence, he has repeatedly
denounced the dramatic expansion of litigation that results from
attempts to apply the vague commands of the equal protection clause
to contested elections.

In an important case just last April, Scalia wrote a plurality
opinion arguing that partisan gerrymanders--that is, cases where
the majority in a state legislature draws an electoral map for the
specific purpose of protecting its own incumbents and minimizing
the strength of its opponents--should not be subject to judicial
review. Because challenges to partisan gerrymanders have produced a
great deal of litigation with unpredictable results, and because
judges have been unable to agree on how to determine if a
gerrymander is partisan, Scalia wrote, the issues should be
regarded as "political questions" to be regulated exclusively by
legislatures, not courts. Of course, if Scalia applied the same
standard in Bush v. Gore, he would have agreed with Justice Stephen
Breyer that it, too, was a "political question" to be resolved by
Congress rather than the Supreme Court: The justices in the majority
couldn't agree on a coherent standard for identifying equal
protection violations, and, as a result, lower courts have produced
a confusing set of competing standards that threaten to tie
elections in knots.

The litigation provoked by Bush v. Gore also shows how wrong Scalia
was to insist in 2000 that only the U.S. Supreme Court could save
the country from the activism of the Florida Supreme Court. In
fact, both Congress and the Florida state legislature were ready to
step in if given the chance. If the Supreme Court had made clear in
2000 that all electoral disputes should be considered "political
questions" to be decided by political bodies rather than lower
courts, then it would have saved the country from the litigation
mess that now menaces all future elections.

But it would be wrong to criticize conservatives alone for having
turned our national elections into legal feeding frenzies.
Democratic lawyers and scholars who denounced Bush v. Gore were
quick to invoke it after the California recount when it suited
their purposes, and they will be quick to invoke it again in
November if the election is close. Furthermore, Democratic justices
have shown little hesitation about proposing intrusive judicial
oversight of contested elections, even though the standards they
suggest are as vague as those in Bush v. Gore. In the partisan
gerrymandering case, for example, Justices Breyer, John Paul
Stevens, and David Souter proposed three different standards for
identifying unconstitutional partisan gerrymandering, even though
none of them was able to define precisely how much protection for
incumbents should be considered unfair.

Far from being an aberration, Bush v. Gore is the epitome of what
Richard L. Hasen of Loyola Law School has called the third phase of
electoral litigation. The first phase, in the 1960s, announced that
"one man, one vote" was a constitutional requirement. Emphasizing
the right to an equally weighted vote, the Court forced the states
to create electoral districts with nearly equal numbers of voters.
The second phase, which began in the 1970s, focused on the right to
an equally meaningful vote. Declaring that certain electoral
arrangements--such as at-large elections--might make it harder for
minorities to elect representatives of their choice, the Court came
close to declaring a constitutional right to proportional
representation. And, when the Court stepped back from this
precipice, Congress in 1982 created a federal right for minorities
to elect representatives of their choice. This led to an unlikely
alliance of GOP operatives and minority rights advocates who
supported the creation of minority districts, effectively isolating
Democratic voters in the South.

In response, the Court inaugurated in the 1990s the third phase of
electoral litigation. In Shaw v. Reno in 1993, it declared that
oddly shaped voting districts created for the benefit of minorities
might be unconstitutional not because they violated the right to an
equally weighted or equally meaningful vote, but because they sent
a message to white voters that their concerns might not be taken
seriously. The Court had difficulty defining precisely what was
wrong with these districts, aside from the fact that they looked
funny, and, for a decade, the borders of nearly every minority
voting district in the country were considered tentative until
Justice Sandra Day O'Connor decided whether their shape was so
bizarre as to be unconstitutional. After reigning for a decade as
aesthetic adjudicator of every minority district in the nation,
O'Connor abruptly switched sides in 2001 and voted to uphold the
North Carolina district that she had questioned in Shaw v. Reno
eight years earlier.

As Pam Karlan of Stanford Law School has observed, Bush v. Gore is
entirely consistent with Shaw v. Reno. Rather than focusing on the
actual interests of individual voters, it is concerned with the
message conveyed by particular electoral arrangements: In Shaw v.
Reno, O'Connor said that "appearances do matter" in apportionment
cases because minority districts could "reinforce the perception"
that members of the same racial group vote alike. Similarly, the
Bush v. Gore majority was concerned that different counting
standards for different ballots might appear unfair even if they
were designed to reveal the voter's true intent. But, as Samuel
Issacharoff of Columbia Law School has observed, electoral messages
are in the eyes of the beholder, which is why lower court judges
and Supreme Court justices have been unable to agree about what
vision of fairness a particular election should have to respect: Is
it more fair to treat every ballot alike or every group of voters
alike?

The unfortunate result is that every contested election in the
country is now vulnerable to being resolved by O'Connor and her
colleagues. And the fact that they attempted in Bush v. Gore to
deny the obvious implications of their intrusion into the political
process only makes their intervention more reckless. Did they
really believe they could create a right to political equality
without defining it, in an age when society disagrees so vigorously
about what equality requires? Did they imagine for a moment that
Democrats and Republicans would meekly tug their forelocks rather
than use electoral litigation as a partisan tool? And did they
think that courts could presume to recast themselves as election
supervisors without calling their own impartiality into question?

Whether or not the presidential election of 2004 is close, Bush v.
Gore will continue to distort and confuse U.S. elections more
aggressively with each passing year. The disastrous consequences of
the Court's decision to legalize U. S. politics have only
vindicated the fears of Felix Frankfurter, who warned nearly 60
years ago of the dangers of judicial excursions into what he called
"the political thicket." "It is hostile to a democratic system to
involve the judiciary in the politics of the people," Frankfurter
wrote. "And it is not less pernicious if such judicial intervention
in an essentially political contest be dressed up in the abstract
phrases of the law." Worst of all, having now led us into the
political thicket, neither the conservative nor the liberal
justices have any way of getting us out.

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