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Bugliosi's The
Betrayal of America: How the Supreme Court Undermined the Constitution
and Chose our President is an expanded version of an article
that he published in The Nation on February 5, 2001, called
"None Dare Call It Treason." In its reckless disregard
for the truth, it marks, with Alan Dershowitz's Supreme
Injustice: How the High Court Hijacked Election 2000, a
low point in the outpouring of criticism directed at Bush
v. Gore. Or so one hopes.
For Bush
v. Gore, which effectively ended the Election 2000 controversy,
is in fact a complicated case whose outcome was obvious to few and
whose legal arguments implicate novel and difficult questions. Yet
Bugliosi, a former prosecutor for the Los Angeles County District
Attorney's Office who made his name prosecuting Charles Manson and
writing about it in the classic Helter Skelter, and then
emerged in the 90s as a leading celebrity legal commentator publishing
outspoken books on the O. J. Simpson trial and the Clinton impeachment,
manages in his new book to rest accusations of epic proportions
on analysis of breathtaking vulgarity and shoddiness.
Bugliosi presents
himself as a hero of democracy, a moderate with both liberal and
conservative friends, a critic whose sole concern is with "justice
and fair play" and who simply wanted all votes to be counted,
a lonely commentator prepared to speak the truth and declare that
the "shameless and shameful felonious five" conservative
justices who voted for Bush v. Gore are "criminals"
who "committed one of the biggest and most serious crimes this
nation has ever seen — pure and simple, the theft of the presidency."
In fact, by inviting his fellow citizens to confuse his tough guy
talk and colorful invective and ruthless oversimplification with
responsible legal analysis and sound moral judgment, Bugliosi practices
the demagoguery that is democracy's perennial bane.
Bugliosi's
thin volume, whose evidence he says no reader has been willing or
able to circumvent and whose logic none has managed to pierce, is
a repository of commonly-put-forward bad criticism of Bush
v. Gore. It is not to be supposed that these poor arguments
will be driven out of circulation by identifying them and exposing
their weakness. Nor will exposé force into retirement the
ridiculous rhetorical excesses with which Bugliosi garlands his
arguments, for example, "Considering the criminal intention
behind the decision, legal scholars and historians should place
this ruling above the Dred Scott case (Scott v. Sandford)
[ruling in 1857 that slaves are property] and Plessy v. Ferguson
[upholding in 1896 the doctrine of separate but equal] in egregious
sins of the Court." But perhaps bringing to light the rather
gaping holes in arguments he regards as invulnerable to criticism
can spare some labor for those whose primary concern is to understand
the basic issues.
Bugliosi's
case against Bush v. Gore boils down to six propositions.
All but the first are frequently heard, though the frenzy of moral
indignation with which Bugliosi elaborates them all sets his book
apart. All are fundamentally mistaken or deeply misleading.
1) Bush
did not have "'standing to sue.'" In equal-protection
cases "the aggrieved party, the one who is being harmed and
discriminated against, almost invariably brings the action."
However, it was not the supposedly disenfranchised Florida citizens
who brought the action, but Bush who "leaped in and tried to
profit from a hypothetical wrong inflicted on someone else."
Bush was not the plaintiff and he did not sue. It was Gore who brought
the contest lawsuit and Bush who appealed. Moreover, it is absurd
to suggest that a candidate has no interest in or cannot be aggrieved
by constitutionally impermissible procedures for counting votes.
2) Bush v.
Gore denied "the right to have their votes count at all"
to tens of thousands of citizens who cast undervotes (ballots on
which no vote for president was detected). In fact, ballots,
including those designated as undervotes, were counted twice by
machines, once in the original tabulation, and then a second time,
as required by Florida law, when the margin between Bush and Gore
was found to be less than .5% of the total votes cast.
3) Bush v.
Gore "sets forth a very simple, noncomplex proposition-that
if there are varying standard to count votes, this violates the
equal protection clause of the Fourteenth Amendment." Actually,
Bush v. Gore sets forth a complex proposition, that
if in a statewide hand recount under the supervision of a single
judicial officer varying standards between counties and even in
the same county are employed, and also if some ballots that did
not contain a valid machine readable vote for president are manually
recounted (the undervotes, which estimates put at 60,000) but not
others (the overvotes, on which machines detected multiple votes
for president, which estimates put at 110,000), and also if partial
recounts from some counties are included in the final-vote totals,
and also if the manual recount is conducted by untrained and unsupervised
personnel, then these problems, when taken together, violate the
minimum requirements of equal protection.
4) "The
simple fact is that the five conservative Justices did not have
a judicial leg to stand on" because their previous precedents
provided no support for their ruling. In Reynolds v.
Sims (1964) a malapportionment case cited by the majority
(which Bugliosi dismisses as irrelevant but does not discuss), the
Court ruled that state voting districts which elect representatives
to the legislature must have roughly equal populations. In so holding
the Court explained that "the right of suffrage can be denied
by a debasement or dilution of the weight of a citizen's vote just
as effectively as by wholly prohibiting the free exercise of the
franchise." This important precedent is applicable to the case
of Bush v. Gore, though it requires an argument by
analogy (which lies at the heart of legal reasoning) to see why.
Using varying standards to count votes in different counties and
even in the same county, and manually recounting one category of
votes that could not be read by machines but arbitrarily declining
to recount by hand another category that also was not machine readable
dilutes the weight of those votes subject to stricter standards
and those arbitrarily excluded from the manual recount.
5) The equal
protection theory was wildly overbroad, because "to be completely
consistent the Court would have had no choice but to invalidate
the entire Florida election, since there is no question that votes
lost in some counties because of the method of voting would have
been recorded in others utilizing a different method."
Justice Souter, who in dissent concluded that the Florida recount
gave rise under the Equal Protection Clause to "a meritorious
argument for relief," distinguished the constitutional issues
that arise in the use of different machines in place to count votes
before Election Day from those that surround the use of varying
standards for recounting votes by hand after the election: "It
is true that the Equal Protection Clause does not forbid the use
of a variety of voting mechanisms within a jurisdiction, even though
different mechanisms will have different levels of effectiveness
in recording voters' intentions: local variety can be justified
by concerns about cost, the potential value of innovation, and so
on. But evidence in the record here suggests that a different order
of disparity obtains under rules for determining a voter's intent
that have been applied (and continue to be applied) to identical
types of ballots used in identical brands of machines and exhibiting
identical physical characteristics (such as "hanging"
or "dimpled" chads)."
6) A "multiplicity
of problems" afflicted the Court's decision to shut down the
manual recount. Most importantly, since federal law merely provided
a safe harbor for electors chosen by December 12 but was not mandatory,
nothing should have prevented the majority from ordering the Florida
court, as urged by Justices Souter and Breyer, to devise a uniform
standard and proceed with the recount. In its December 11th
opinion, in response to the U.S. Supreme Court's vacating of its
November 21st opinion (extending the protest period by 12 days),
the Florida court on no fewer than four occasions indicated that
Florida law recognized December 12 as a binding deadline for choosing
electors. In refraining from ordering the remedy contemplated by
Justices Souter and Breyer, the majority plausibly saw themselves
as deferring to Florida law.
Bugliosi concludes
that because the five conservatives justices rendered a "knowingly
fraudulent decision" that was "morally reprehensible"
and a "wrong against society," they "are criminals
in every true sense of the word, and in a fair and just world
belong behind prison bars as much as any American white collar criminal
who ever lived." Fighting words, but self-congratulatory assurances
to the reader notwithstanding, they are based on scant evidence
and limp logic. How then shall we judge a prosecutor who sets himself
up as judge and jury and fiercely condemns a momentous judicial
decision and the Supreme Court Justices who rendered it but seems
not to have read the majority opinion carefully, or digested the
dissents thoroughly, or grasped the actual features of the partial
and selective hand recount which lie at the heart of the legal controversy,
or grappled with the complexities of the case law, or even thought
through the logical implications of his own governing principle,
that all votes be counted?
Bugliosi insists
that he stands above the partisan fray, that his conclusions owe
nothing to the candidate he favored, and that his "credibility
on matters such as this is unassailable." His pseudo-macho,
over-the-top polemic, which places his performance at the center
of the show, makes this one of the few plausible claims in his hysterical
little book. It also renews one's appetite for good old partisan
passion. The partisans at least champion a cause greater than themselves.
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