The Untimely Death of Bush v. Gore

Richard L. Hasen - Loyola Law School, Los Angeles

Posted in , ,

When the United States Supreme Court decided Bush v. Gore,1 ending the controversial recount of presidential votes in Florida and handing the contested 2000 election to George W. Bush over Al Gore, some election law scholars told a “lemonade from lemons” story: It is true there was much to criticize about the Supreme Court’s decision to take the case, its equal protection rationale, and its controversial remedial decision to end the recount rather than remand for a recount complying with (newly articulated) equal protection standards. But the opinion could usher in an era when courts would use the Equal Protection Clause as a tool to fix some fundamental inequalities in the “nuts and bolts” of our country’s hyper-decentralized election administration system. These scholars stood opposed to those who saw the case—especially given its language “limiting” its precedential reach—as a “one-day-only” ticket to assure the choice of Bush over Gore for President and to another group of scholars who saw it as an appropriate resolution of the case, perhaps avoiding a constitutional crisis.

Moreover, some scholars hoped the Florida controversy culminating in Bush v. Gore would make lemonade indirectly as well: the attention generated by the Florida debacle—particularly attention directed to problems with election machinery and partisan discretion over the counting of votes—would spur state and federal legislative action to fix the problems. One especially important problem is the conflict of interest created when partisan election officials oversee elections in which their party, or even they personally, has a stake in the outcome.

Now, a little over six years later, Bush v. Gore is dead. The death did not come in the usual way that Supreme Court cases die, through outright or sub silentio overruling in a later case. Indeed, no Court opinion—majority, concurrence, or dissent—has cited the opinion since it was decided. But election law developments in the relatively short time since Bush v. Gore show that conservative federal circuit court judges so far have been able to resist the “lemonadization” of Bush v. Gore. Worse, the Supreme Court’s recent opinion in Purcell v. Gonzalez,2 allowing Arizona to implement (at least temporarily) its controversial voter identification law, shows that the Court itself has not understood the problems it caused with its Bush v. Gore opinion. The Court’s decision to quickly issue an opinion in Purcell, the casual empiricism of its unanimous opinion, and its discouragement of pre-election litigation all are exceedingly troublesome.

By stating Bush v. Gore is “dead,” I am not making the claim that the Supreme Court will never rely on the case as precedent in an election administration dispute. I mean instead that the promise of election reform inspired by the case is now dead. Indeed, a case could come along some day reviving Bush v. Gore as precedent. Perhaps it is better to think of the case as dormant as a constitutional precedent. My main point is that we should abandon any hope created by the case that the judiciary would serve as an engine of election administration reform.

Bush v. Gore’s failure has been not just a failure in the courts. Legislative fixes to problems of election administration have fared no better, except in the area of voting technology. The good news is that changes in voting technology, subsidized by the federal government, mean that many fewer votes are now “lost” due to inadequate vote counting machinery. But the rest of the news is bad. States have not learned what is arguably the primary lesson of Bush v. Gore: partisan officials should not run elections because of the obvious self-interest problem. Indeed, election administration has become more, rather than less, politicized. State legislatures have not searched for an honest broker to design and implement fair and impartial electoral rules. Many Democrats appear concerned only about problems of voter “access,” while many Republicans appear to care only about voter fraud or “ballot integrity.” This divide has played out in a number of areas, most importantly in the enactment by state legislatures of voter identification laws supported almost exclusively by Republicans and opposed almost exclusively by Democrats.

Unfortunately, the story is even worse than this description. Bush v. Gore’s main legacy has been to increase the amount of election-related litigation. As election law has become a political strategy, it threatens to further undermine public confidence in the electoral process. No lemonade, only lemons.

The death of Bush v. Gore was not unexpected, but its early demise is still something to be mourned.


I.
Bush v. Gore’s Failure to Ignite Election Administration Reform Through Litigation

Briefly, the Supreme Court in Bush v. Gore voted 5-4 to end the recount ordered by the Florida Supreme Court in the 2000 election contest brought by Al Gore to overturn a narrow victory in Florida by George W. Bush. Seven of the Justices on the Court saw equal protection problems with the Florida Supreme Court’s order mandating a statewide manual recount of “undervotes,” that is, ballots which were classified by vote counting machines as not including any vote for President. The U.S. Supreme Court flagged a number of problems with the Florida court-ordered recount, perhaps most importantly the lack of uniform standards for judging when a ballot classified as an undervote by a vote counting machine should be counted in a manual recount as a valid ballot for one of the candidates (the “dimpled chad” problem).

Two of the seven Justices recognizing equal protection issues, Justices Breyer and Souter, would have remanded the case back to the Florida courts for a recount using uniform standards. The remaining five voted to end the recount, thereby awarding Florida’s electoral votes and the presidency to George W. Bush, on grounds that prolonging the counting would deprive Florida of the chance to have its electoral votes counted without challenge in Congress under the Electoral Count Act. The Court held that the recount standards, through “arbitrary and disparate treatment,” impermissibly “value[d] one person’s vote over that of another.”3 The Court limited its holding, however, with some important language: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”4

Much ink has been spilled on the question whether the Court’s equal protection rationale was a logical extension of or a break from existing precedent. The subtext of this debate, of course, was whether the Court was consciously or subconsciously making a political decision (with conservatives on the Court backing the legal theories benefiting the Republican candidate and liberals on the Court backing the theories benefiting the Democratic candidate) as opposed to a legal one. Part of that debate too concerned whether Bush v. Gore itself would serve as valid precedent to bring greater equality to the administration of elections, a debate that continues to this day.

Some scholars predicted that the Court would eventually endorse the use of Bush v. Gore as precedent to bring greater equality to the nuts and bolts of election administration. Thus, in a New York Times op-ed written just two days after the Court’s decision, Sam Issacharoff wrote that the Court has “asserted a new constitutional requirement: to avoid disparate and unfair treatment of voters. And this obligation obviously cannot be limited to the recount process alone. . . . The court’s new standard may create a more robust constitutional examination of voting practices.”5 Steve Mulroy expanded on this point in a law review article, asserting that, while liberals may have been disappointed with the result in Bush v. Gore, its broadly written equal protection holding meant it was possible to make “lemonade from lemons.”6

My own view in 2001 was far less sanguine but not quite as dire as those reading the case as a “one-day-only ticket.”7 Though I believed that the Court would ultimately limit Bush v. Gore to its facts, I also thought that “[l]ower courts will first apply Bush v. Gore as precedent to cases coming before [them] . . . [s]o there is at least a window of time in which the case may serve as valid precedent.”8 I further thought that lower courts would view Bush v. Gore in Rashomonic fashion, with liberal judges embracing a more expansive equal protection reading of Bush v. Gore and conservatives embracing a more restrictive reading of the case—returning liberal judges to the more familiar position of pushing for an expansion of voting rights through equal protection and conservative judges resisting such expansion. In that window of time, I believed that public interest litigants appearing before sympathetic judges could use the logic of the case to make conditions fairer for voters who, because of intentional election administrator choice or mismanagement, would be much less likely to be able to cast a valid vote than other voters in the jurisdiction.

Indeed, at first some lower courts played this enabling role by reading Bush v. Gore to require greater equality in the administration of elections.9 Sometimes the threat of litigation was enough: to avoid a probable adverse judgment, the California Secretary of State settled litigation brought by Common Cause to bar the use of punch card voting machines.10 But that initial success has fizzled, at least as evidenced by the “punch card” cases. As these cases reached the en banc process in circuit courts, conservative judges have blocked Bush v. Gore’s lemonadization.11


II.
The Rise of Partisan Election Administration Laws and the Troubling Public Confidence Gap

Even without cajoling from the courts, some states took it upon themselves to upgrade their vote-casting and -counting technology. Congress also helped matters along by providing funding for states through the Help America Vote Act (HAVA) to phase out antiquated and unreliable technology such as punch card machines.12 But outside the area of voting technology, most legislative bodies have done too little to fix problems or, worse, have made changes in their election laws aimed at assuring partisan advantage.

Legislative movement outside the area of technology has been mostly in the wrong direction.

First, states have shown very little interest in fixing ambiguities and gaps in their election codes, despite the fact that Bush v. Gore amply demonstrated that such gaps can lead to great controversy as courts are called upon to interpret the elections code in high stakes litigation over who should be declared the winner of a contested election.

Second, legislation that has been passed has proven ineffective. The U.S. Election Assistance Commission (EAC), formed by Congress as part of HAVA to fix the problems made apparent by the 2000 Florida debacle, has so far proven ineffective and now appears in danger of becoming a new site for partisan stalemate over election reform. Even given the EAC’s ineffectiveness thus far, the National Association of Secretaries of State (NASS), the main body of (mostly partisan and elected) state chief elections officers, has not backed off its resolution calling for the EAC to be disbanded. What little good the EAC can accomplish is being undermined by state officials’ need to protect their turf and by lack of funding from Congress.

More important than this failure to act effectively in the face of obvious problems, however, is the increased partisan divide over election reform legislation. It now is beyond question that there is such a divide, with many Republicans expressing concern about voter “integrity” and the possibility of voter fraud affecting the outcome of elections, and many Democrats expressing concern over voter “access” and the possibility that the government or others will take steps to suppress the votes of the poor, minorities, and others. Some Democrats suspect that the Republican integrity claims are false and are intended to suppress the vote. Some Republicans suspect that Democrats’ concern about access is overblown and is intended to create the conditions where ineligible voters (such as felons or illegal immigrants) are allowed to vote. It is no exaggeration to say that “election reform,” in the sense of making it easier for people to cast a vote, without intimidation, that will be accurately counted, has become an issue for Democrats and the liberal reform community. Republicans, in contrast, have focused their attention on voter fraud. There has been little movement for bipartisan cooperation. The most prominent attempt at such cooperation, the Baker-Carter Commission, got mired in controversy concerning its endorsement, over the dissent of three Democratic members of the commission, of a voter identification card.

The country’s partisan divide has manifested itself in a number of ways. For example, Democrats have pushed for election-day voter registration as a means of making it easier for eligible voters to vote, but Republicans have opposed this change on grounds that it would allow for more voter fraud. The partisan divide has been on display most heatedly in the dispute over state voter identification laws. With the exception of Arizona, which enacted its voter identification law through a voter initiative (aimed more broadly at issues of benefits for illegal immigrants), every state that has enacted or tightened its requirements for voters to show identification at the polls has done so through the support of a Republican-dominated legislature. Democrats have uniformly opposed the efforts to impose new voter identification requirements, as in Pennsylvania, where the Democratic governor vetoed a new voter identification law passed by the Republican-dominated legislature, and in Missouri, where the newly elected Democratic Secretary of State has opposed voter identification laws and argued against them in a report on the 2006 election.

Republicans have defended voter identification laws as necessary to combat voter fraud. But Democrats and civil rights organizations see those voters who are more likely to vote Democratic, have a more difficult time securing voter identification. Poor people tend to drive less (meaning they are less likely to have a driver’s license, which is the most common form of identification), and they may not have the money to secure certified copies of documents, such as birth certificates, necessary to obtain a state-issued voter identification.

The debate over voter identification has generated a great deal of heat, but very little light. At its heart are two separate empirical questions: (1) How much impersonation fraud (where one person shows up at the polls claiming to be someone else) takes place that an identification card would detect or deter? (2) How much would a voter identification law deter eligible voters from voting? There is in fact very little evidence of impersonation fraud (as opposed to absentee ballot fraud) and we have very little understanding of how much voting a strict voter identification law may deter.

There is also suspicion, which definitely deserves further research, that the imposition of voter identification procedures and other similar rules is causing a decline in voter confidence among minority voters. By 2004, it was clear that there was a growing party and racial divide in public confidence in the electoral process. By 2004, 21.5% of Democrats thought the means of conducting the most recent presidential election was “somewhat unfair” or “very unfair,” compared to 2.9% of Republicans. In that same election only one-third of African-Americans called the vote “accurate and fair.”

No doubt, some of the disparity is due to the fact that Democrats were on the losing end of the 2000 and 2004 presidential elections, and winners tend to have more confidence in election outcomes than losers. But the gap in confidence between winners and losers may not explain everything. Just before the 2006 election, when it already appeared that Democrats were likely to do well in the midterm congressional elections, the gap between Republican and Democratic views persisted. Even more troubling, the percentage of African-American voters who were “not too confident” or “not at all confident” that their votes would be fairly counted nearly doubled from 15% in 2004 to 29% in 2006.

When it comes to election reform, many state legislatures have spent more energy debating issues like voter identification laws than considering how to take partisanship out of the process of deciding elections. In 2005, I counted thirty-three state chief elections officers chosen in partisan elections. That number remains the same in 2007. Congress, meanwhile, has not fully funded the electoral reforms it authorized in HAVA, and current proposals for election reform on the federal level are getting mired in presidential politics.


III.
Mislearning the Lessons of Bush v. Gore: The Supreme Court’s Poor Response in Purcell v. Gonzalez to the Rise of Election Law as a Political Strategy

Election litigation has more than doubled since 2000, and it continues to grow. In an earlier study, I showed a large increase in the amount of election law litigation in the courts, from an average of 96 “election challenge” cases per year in the 1996-99 period, to an average of 254 per year in the 2001-04 period.13 The high rates continued through 2006.

The rise in election law litigation since 2000 is part of a trend of election law as a political strategy. There seems little question that candidates, parties, and others have lost any inhibition to resort to litigation in the case of a close election. So it is very important for the Supreme Court and lower courts to send appropriate signals about how and when courts should entertain such challenges. Unfortunately, the Court’s first post-Bush v. Gore opinion on an election administration subject, Purcell v. Gonzalez, sends some very troubling signals, apparent from the Court’s decision to issue its opinion quickly, the casual empiricism of its unanimous opinion, and its discouragement of pre-election litigation.

Arizona voters adopted a new voter-identification law in 2004 as part of Proposition 200—a measure aimed primarily at the problem of illegal immigration. Among other provisions (including one that voters provide satisfactory evidence of citizenship at the time of voter registration), the law requires those who vote in person to produce either a photo identification, or two other pieces of identification, showing the voter’s name and address. A coalition of voting rights organizations filed a complaint alleging that the law violated federal election laws and the U.S. Constitution. A federal district court, without providing any reasoning, denied their request to delay implementing the law pending a full trial on the issues in the case. A Ninth Circuit motions panel, also without providing any reasoning, reversed that decision, temporarily halting the voter-identification requirements (as well as its voter-registration requirements). The trial court then belatedly issued its statement of reasons for denying the order.

The State of Arizona then asked Justice Kennedy, who has jurisdiction over emergency appeals from the Ninth Circuit, to stay the Ninth Circuit’s decision. Justice Kennedy referred the question to the entire Court. The Court treated the stay request as a petition for certiorari, granted it, and then reversed the Ninth Circuit in a surprise per curiam opinion on a late Friday afternoon soon before the election, allowing the identification requirements to be put into effect pending a full trial on the merits in the case. The Supreme Court described constitutional interests on both sides of the voter-identification question:

Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. . . . Countering the State’s compelling interest in preventing voter fraud is the plaintiffs’ strong interest in exercising the “fundamental political right” to vote. Although the likely effects of Proposition 200 are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs’ challenges.14

The Court also signaled its disfavor with last-minute court interventions in the electoral process: “Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase.”15 The Court seemed especially concerned that the Ninth Circuit gave no reasons for its decision to reverse the district court and stay implementation of Arizona’s voter identification law.

The Court’s decision to reverse the Ninth Circuit is defensible, given the circuit court’s failure to provide any reason for not deferring to a lower court’s decision not to issue the preliminary injunction (though the district court’s failure to timely issue findings of fact and conclusions of law made the Ninth Circuit’s review difficult as well). Justice Kennedy, or the Court, arguably should have granted the stay of the Ninth Circuit’s order, restoring the district court’s opinion to let the election go forward with the identification requirement, pending a trial on the merits.

But in three ways, the Court’s treatment of the Purcell case shows that the Court has not internalized the lessons from Bush v. Gore and has actually made things worse. First, given the opinion’s sloppy reasoning (as detailed below), it is quite plausible that the opinion was rushed. Likely the Court decided to rush the opinion out to send a message to lower courts that they should be less willing to entertain litigation that makes last minute changes in election laws (an issue I return to in the third point below). The Court had two alternatives to issuing the opinion when and how it did. First, Justice Kennedy (or the Court) could have reversed the Ninth Circuit without issuing an opinion. Second, perhaps fearing that this vote would be seen as too political before the upcoming election (or perhaps not, if it were unanimous), the Court could have issued the order, followed by an opinion issued later, after the Court had time to give it more careful attention. Some lower courts have followed this strategy in election law cases.

Second, my most serious objection to Purcell is the Court’s adoption of a wholly unsupported empirical assumption about the effects of possible voter fraud on turnout and how that unsupported assumption must now be balanced in cases challenging the right to vote. As noted in Part II, there are two basic empirical questions for the courts to sort out in these cases. First, is there enough evidence of impersonation fraud to justify such laws, which no doubt place some burden on the right to vote? Second, how onerous are such laws? The empirical evidence on both fronts is still rather scant, but it is being developed.

Once the Court was going to issue an opinion, it should have said that courts must engage in some kind of balancing (whether under strict scrutiny or a less burdensome standard) of the state’s interest in preventing voter fraud with the rights of voters lacking identification (and lacking ease of obtaining such identification) required by the state in order to vote. The Court even could have said that in the absence of any evidence of either voter impersonation fraud or voter deterrence due to a voter identification requirement, a court is within its discretion in allowing the state law to go forward until there is proof the law is deterring voters from voting. That would be the time for an appropriate challenge.

But the Court did not do so. Instead, the Court stated, without any proof whatsoever, that concerns about voter fraud “drive[] honest citizens out of the democratic process and breed[] distrust of our government.”16 The Court further said that the fundamental right to vote of voters lacking identification must be weighed against the interest of those supposedly disillusioned voters who “will feel disenfranchised.”

The discussion is troubling on a few levels. First, the Court cited no evidence, and I am aware of absolutely no evidence, supporting the view that voters are deterred from voting out of fear that their legitimately cast votes will be diluted by the votes of those committing voter fraud. Moreover, the Court offered no explanation why it is appropriate to balance feelings of disenfranchisement against actual disenfranchisement, whatever the appropriate standard of review.

The final problem with the Purcell opinion is its discouragement of preelection litigation. The Court on this point has it backwards. When courts get involved in election disputes, they run a risk of undermining the public’s faith in the electoral process and in the fairness of the courts. To minimize that problem, it makes sense to encourage litigation well before elections (that is to say, before the winner is known and everyone will question the biases of the judges) and to discourage litigation after the election whenever a suit might have been brought earlier. The risk of confusion as the election approaches should be balanced against the risk of disenfranchisement or other loss of rights that cannot be fixed after an election. If a voter identification law is indeed disenfranchising, there is likely no effective post-election remedy to restore the right to vote. Indeed, in a close election, an unconstitutional law could make a difference in the outcome. If, as Democrats claim, voter identification laws fall more heavily on their supporters, such laws could tip the balance in favor of Republicans. Purcell may have the ultimate effect of moderately reducing the total amount of litigation, which would look like a modest improvement over the status quo. However, Purcell achieves that result only by eliminating cases for which the only viable remedy may come through pre-election judicial review.


IV.
Conclusion

The 2000 election debacle brought well-deserved attention to the serious problems plaguing our election system. Bush v. Gore divided the country at that time, but many hoped that the case and surrounding controversy could spur meaningful reforms to fix serious election administration problems. The case and the Florida controversy have not directly led to meaningful election reform. States and legislatures, aided by congressional funding, have taken steps to improve voting technology, though the transitions to new technologies and election administration incompetence have colored what would otherwise be success on the technology side.

But on the side of reforming elections to create fairer and nonpartisan rules, it appears the country has learned the wrong lessons from the Florida debacle and Bush v. Gore. Election administration has become more, not less, partisan. Public confidence in election administration, especially among African-Americans, is at troubling and embarrassingly low levels. Elections more frequently result in litigation than before 2000. And the courts, especially the Supreme Court, have not been careful in addressing election administration claims. The result is likely to be further contentiousness and growing voter distrust of the system by which we cast and count votes for the foreseeable future.

Now more than ever, the country needs to learn the right lessons from Bush v. Gore. But it appears Bush v. Gore’s moment has passed from public consciousness, replaced instead by partisan recriminations and retrenchment.dingbat

Acknowledgments:

Copyright © 2009 Stanford Law Review.

Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles.

This Editorial is based on the following full-length Article:   Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 STAN. L. REV. 1 (2007).

Note: The Article was published before the United States Supreme Court decided Crawford v. Marion County Election Board, 128 S.Ct. 1610 (2008), upholding the constitutionality of Indiana’s voter identification law.

  1. 531 U.S. 98 (2000).
  2. 549 U.S. 1 (2006).
  3. Bush, 531 U.S. at 104-05.
  4. Id. at 109.
  5. Samuel Issacharoff, Op-Ed, The Court’s Legacy for Voting Rights, N.Y. TIMES, Dec. 14, 2000, at A39.
  6. Steven J. Mulroy, Lemonade from Lemons: Can Advocates Convert Bush v. Gore into a Vehicle for Reform?, 9 GEO. J. ON POVERTY L. & POL’Y 357 (2002).
  7. See Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 FLA. ST. U. L. REV. 377, 378 (2001).
  8. Id. at 392.
  9. See, e.g., Black v. McGuffage, 209 F. Supp. 2d 889, 899 (N.D. Ill. 2002) (finding a potential equal protection violation in the selective use of punch card machines by Illinois).
  10. Common Cause v. Jones, No. 01-03470 SVW(RZX), 2002 WL 1766436 (C.D. Cal. Feb. 19, 2002).
  11. See, e.g., Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en banc); Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), superseded en banc by 473 F.3d 692 (6th Cir. 2007).
  12. For an overview of HAVA’s assistance and requirements, see Leonard M. Shambon, Implementing the Help America Vote Act, 3 ELECTION L.J. 424 (2004).
  13. Richard L. Hasen, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 WASH. & LEE L. REV. 937, 958 (2005).
  14. Purcell, 549 U.S. at 4.
  15. Id. at 4-5.
  16. Id.

Comments

  • The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote, everywhere, would be politically relevant and equal in presidential elections.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The National Popular Vote bill has passed 29 state legislative chambers, in small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes — 23% of the 270 necessary to bring the law into effect.

    See http://www.NationalPopularVote.com

    Posted by mvymvy, 07.20.09 

Post a Comment (all fields are required)

You must be logged in to post a comment.