12/13/00 12:10 p.m.
Constitutional Crash Landing
No one said it would be pretty.

By Richard A. Epstein, professor at the University of Chicago School of Law

o one said that the end — for it is the end — of the interminable electoral dispute between Al Gore and George Bush would be pretty. And like everything else in this sorry affair, it turns out to have been ugly.

Pundits everywhere had hoped that this case could end with a unified showing in the United States Supreme Court so as to preserve its legitimacy and to promote that of the winner of the election, now George Bush. Instead we got a literal potpourri of decisions that can only confuse an electorate that has grown weary of this political circus, and only dismay academics who wished in a sense for something better.

As a political matter, the proper response should not be criticism of the arguments contained in the various opinions, but relief that the entire matter has come to its inglorious end. But this law professor has no special read of the pulse of nation, so he will revert to type and give an instant analysis of the legal arguments made in the case.

Up first is the five-vote conservative majority that brought the entire proceedings to an end by invoking the proposition that the erratic conduct of the recount, without any discernible guidance from the Florida supreme court, counted as a violation of the equal protection clause of the United State Constitution. In one sense this result is odd, to say the least, because it is hard to identify which individuals were prejudiced by the errors, and which were not.

This is not a case like the equal-protection voting rights cases that led to the "one man, one vote" disputes of the 1960s. There it was clear that folks in rural counties had far greater clout in the state legislators because their small districts had equal power with the larger districts carved out for urban voters. The argument there was, quite simply, if it takes 10,000 votes to elect a legislator in the rural areas and 100,000 votes to elect a legislator in the urban areas, then the dilution of the urban votes leads to a systematic distortion of the electoral process that places excessive political power in the hands of a small minority. No political solution is possible because the ill-constituted legislature has no incentive to reform itself. Our situation is quite different because here the individuals who did not punch through the chads did not need reapportionment to participate in the election. They just had to read the instructions contained on their ballots.

At various points, the five-member majority also hinted that these erratic procedures could count also as a violation of due-process guarantees. But once again they engaged in elliptical constitutional interpretation. The due-process clause provides that no state shall deprive any person of life, liberty or property, without due process of law. The vote therefore has to be regarded as a form of liberty or property, which is a nice interpretive question of its own. But even if it is, the case founders on the same problem as before in that it is not possible to find any systematic deprivation of that right by the state. No person was excluded from the polls. None had his ballot rejected for improper reasons. The voter who does not punch through only has himself to blame. The arbitrariness of the recount procedure is not easily tied to some violation of an individual right.

The case in my view goes a lot better as a structural case, one which holds that the odd interpretations of Florida law by the Florida supreme court were so far off the mark that they counted as judicial legislation. Once that is established, then the constitutional violation is easier to make out. Electors are to be chosen in the manner designated by the state legislature, and not by a Jerry-built procedure created by a state supreme court that make things up on the fly.

Justice Ginsburg in her dissent strongly disputed the charge that the Florida court engaged in lawless acts of judicial legislation. She noted that although she might agree with their interpretation, they fell within some established zone of reasonableness. In making that analysis, she confined her attention solely to the issues in dispute in the second Florida court opinion: what counts as a "legal ballot," what is meant by "rejection." In her view, the Florida court was within reason when it said that "the rejection of a legal vote" means a failure to count dimples that express a voter's intention, even though it looks from the statute far more plausible to assume that it meant what was said: the refusal to allow people eligible to vote to cast their ballots.

But it is not just that last element in the case that provokes consternation with the performance of the four-member majority in Florida. Rather, the entire process suggests that the Florida court really did go off the rails in ways that lend a lot of strength to the concurrence written by Chief Justice Rehnquist, which Justice Scalia confirmed.

In a nutshell the difficulties began with the question of who controls the recount process. Here the right answer is that, for the first week, control rests in the canvassing boards. But what counts as a recount? It was at this point that the case first went off the rails. The right interpretation of that conception is that one looks at the ballots by hand to see if they were correctly read by the machine. By that standard light has to shine through the ballot so that the dimples are out as a matter of law. That said, it becomes easy to complete the recount in time, and the outcome does not change from Bush to Gore. But once the Gore people started to pressure the local canvassing officials to broaden the purpose of the recount, then we were off to the races. Now it takes a long time to decide whether dimples count, and if so which ones.

The arbitrariness of the process thus became built-in at the ground floor.

The secretary of state, Katherine Harris tried to use her discretion to stop this exercise, but was rebuffed by the Florida supreme court which extended the recount process and authorized a use of some expansive standard of what counts as a legal vote. But it did not say what that standard was. One oddity of the equal protection argument is that the Florida supreme court could have pulled off its electoral coup if it had said, flat out, that "all dimples count" — for now there is a uniform standard throughout Florida that skirts the equal-protection problem, even if it represents a radical shift in the rules of the game after the race has been won. When its maneuvers got slapped down the first time in the Supreme Court, the case then went into the contest phase (that is the legal proceedings after the certification). It was here that it became evident, at least to this observer, that the four-member majority of the Florida supreme court overstepped its boundaries.

A contest is a trial at which sides have to present evidence in accordance with law. But what the Florida supreme court ordered was a continuation of the recount under the guise of a contest resolution. In so doing it, it refused to give the Bush forces any chance to challenge the broad definition of a vote that was used in Broward County and, to a lesser extent, in Palm Beach County.

It is impossible to say that we have a trial from scratch and then to turn around and to hold without any hearing at all that one side's case need never be heard. Worse still, the Florida majority then ordered recounts everywhere else. There was no hint of recognition that the contest phase of an election dispute requires more than a recount: the folks who collect this information have to become fact witnesses, subject to cross-examination and the like. By putting the issue in this fashion, the Florida supreme court, in effect, confused protests with contests, and eliminated the contest phase altogether.

And by appointing Judge Terry Lewis to oversee what was in essence the continuation of the recount, it in effect usurped the function of the secretary of state and short-circuited its own contest rules. That strikes me as a pretty substantial deviation from the legal norm. The Article II arguments look therefore stronger than the equal protection arguments. If they are correct, the proper remedy was not to continue the stay, which allows this case to end in a kind of judicial limbo. It should have been to certify the second machine count, ensuring that the entire Florida procedure received the decent burial it deserved.