November 01, 2004, 8:53 a.m.
Discriminating Involvement
What Bush v. Gore means for this election.

By Douglas Kmiec

Serious thinkers such as George Will and The New Republic's Jeffrey Rosen argue that the seven conservative and moderate justices who decided to intervene in the last national election are about to reap the whirlwind. The source will be the extension of their ruling in Bush v. Gore to disputes anticipated to arise out of next Tuesday's balloting.

Nothing in the precise holding of Bush v. Gore should invite such litigiousness. The December 2000 decision dealt with the narrow and extraordinary context of a state-court-ordered recount of some, but not all, of the disputed punch-card ballots in selective counties at a point well beyond the date allowed for recounts under state law. Moreover, the standards for accepting or rejecting contested ballots varied not only from county to county but indeed within a single county from one recount team to another.

If the exact mischief of Florida 2000 ever arises again, we should be both surprised and ashamed. But these — thankfully — are not the problems that are being looked for next week. Instead, it is contended that the use of different voting systems — electronic touch screens, punch cards, paper ballots — in different parts of a state denies equal protection.

Nonsense. True, each voting system has a somewhat different error rate. But this inescapable fact of technology was distinguished by the Court in Bush, with the express acknowledgment that it is entirely rational for jurisdictions to "develop different systems for implementing elections." What is not rational is using a machine-based system on election day and then throwing it out thereafter in favor of a judicially sanctioned, partial manual recount that lacks any discernibly consistent method of counting.

The claim that different technologies yield disparate impacts is not unimportant, of course. But that disparity is not unconstitutional. This is true even if the older punch-card equipment remains in urban areas where there is a higher minority population. Disparate impact has never been the touchstone for a constitutional equal-protection violation. Seldom is there credible evidence that different machinery was deployed selectively by race or ethnicity. If there is a provable disparate impact on the basis of race, section 2 of the Voting Rights Act supplies a cause for action, but this civil-rights remedy is unrelated to any aspect of Bush v. Gore.

It is anticipated that there will be an outpouring of provisional ballots this year since they are provided for in the Help America Vote Act of 2002 (HAVA), passed to help states update their voting practices. Again, if election officials intentionally treat similar provisional ballots differently or subject them to non-uniform standards within the same state, that is contrary to the Constitution. But we should not blame Bush v. Gore for that reminder of common sense — we should be grateful for it.

Of course, election laws, like all others, contain ambiguities. HAVA, for example, provides that provisional ballots are to be counted if the person was registered "in the jurisdiction" and otherwise eligible to vote. Whether the statute's jurisdictional reference means the entire county or one's precinct is an open question. So too, there are questions about what kind of identification — to avert voter fraud — can be required. These are indeed issues that deserve federal-court answers.

And such answers are being supplied. This week a federal district court in Ohio ruled that requiring someone casting a provisional ballot to show a picture ID or supply the last four digits of his Social Security number before the close of polling is reasonable. No great Bush v. Gore constitutional crisis is lingering here either.

Why then is Bush v. Gore the continual subject of pundit calumny and apprehension? A variety of reasons, perhaps, but many objections amount to no more than Gore lost. The short answer to this is: Get over it — dressing a loser's regret four years later in overstated legal argumentation helps no one.

The more thoughtful argument advanced by Will and Rosen is that elections are political affairs, which the Court should stay out of. There is wisdom in this as a general principle, but two things must be noted: First, even if the Court had not intervened in 2000, it is all but certain as a matter of law (as well as the subsequently completed recount by various media organizations) that Bush won. Second, the Court has understood and applied the Constitution to supply the "rules of the game" — even the political-election game — for generations, well before Bush v. Gore.

The conservative Rehnquist Court did not steal the last election. Had the justices not stopped the Florida recount, the following would have in all probability occurred: Florida would have continued counting by different standards in selective counties until a Gore win resulted. Then the Republican-dominated Florida legislature would have rejected the Gore outcome in a special session. This might seem to be little more than tit-for-tat partisanship, but remember that the Constitution empowers state legislatures to, well, choose the electors. (Article II, Section 1: "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors.")

Of course, the battle could have spilled over into the Congress where the electoral votes are counted — but even then, Bush would have won. The Republican-controlled House would have endorsed the Florida legislature's Bush electors. Even if Gore had cast the tie-breaking vote for his electors in the then-evenly-divided Senate, the slate of Bush electors certified by Florida's secretary of state would have prevailed because of the disagreement between the chambers.

Bush v. Gore did not change the outcome of the 2000 election and it does not invite, and should not yield, electoral convulsions in 2004. If it is right for the Supreme Court to ensure the due process of even "enemy combatants" — and it is — there is nothing illicit about the Court asserting its constitutional check on a state that sought to re-do its election rules after the votes were cast. The legacy of one person, one vote; the disapproval of the once-commonplace practice of drawing election districts predominantly on the basis of race; and the refusal to allow the manual recounting of votes without uniform standard are all of a piece.

The two campaigns have reportedly dispatched legions of lawyers to ensure voter access and to protect against fraudulent practice. This is for the good. But none of those lawyers should have it in mind to employ Bush v. Gore out of context in order to invite the justices to play the role of election supervisor writ large.

If the presidential election of 2004 is indeed close, federal and state judges should stay their hand absent intentional discrimination contrary to the Constitution or a disregard of directly applicable federal or state election law. To think that Bush v. Gore asks more is to indulge a cynical or partisan reappraisal of precedent. And it is such cynicism, not the Court's 2000 opinion, that gives truth to Felix Frankfurter's observation that "It is hostile to a democratic system to involve the judiciary in the politics of the people."

— Douglas W. Kmiec is chair and professor of constitutional law at Pepperdine University. He is a former constitutional legal counsel to Presidents Reagan and Bush.

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