Rematch

by Jeffrey Rosen | October 4, 2004

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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