LOS ANGELES DAILY JOURNAL
December 12, 2001
Ballot Measures: Justices Who Decided Presidential Election Deserve Censure for Improper Actions
by Eric C. Jacobson
One year ago tonight, the U.S. Supreme Court issued its momentous decision in Bush v. Gore. 531 U.S. 98 (2000). Al Gore conceded the next morning; George W. Bush was inaugurated; and the rest is "history."
The court declared unconstitutional Florida's decision to count presidential ballots bearing one class of misexecuted votes, the undervotes, but not another, the overvotes, adding almost parenthetically that Florida's chosen deadline for naming their slate of Electoral College delegates would expire at midnight of Dec. 12, 2000, precluding a new recount in compliance with constitutional requirements.
Recently, the University of Chicago's National Opinion Resource Center released the results of a careful 10-month study of more than 175,000 uncounted Florida ballots -- undervotes and overvotes -- commissioned by the nation's major press and media outlets. Ford Fessenden & John M. Broder, "Examining the Vote: The Overview," New York Times, November 12, 2001.
The study found that, had it prevailed, Gore's core legal contention -- that the original recount ordered by the Florida Supreme Court was legally appropriate and should be resumed -- would have caused Bush to win the presidency. The study also found that, had it prevailed, Bush's core legal contention -- that the Florida recount violated the Equal Protection clause, requiring a new recount, including overvotes and undervotes -- would have caused Gore to win.
These results, featuring razor thin margins and multiple plausible scenarios and contingencies, do not yield any unequivocal conclusion with respect to Republican candidate George W. Bush's controversial ascension to the presidency. But they do cast many of the players in the 2000 election drama in an exceedingly harsh light at the bar of history.
For starters, the study shows what can happen to talented lawyers and their famous clients in the "fog of war" during litigation of bitter disputes. The delicious irony of these litigious candidates and their squadrons of aggressive legal gladiators cluelessly but furiously working in the other's self-interest lends credence to Albert Einstein's observation that "God does not play dice with universe."
Alas, neither of these poetically just outcomes unfolded because a cabal of five members of the U.S. Supreme Court decided to play God themselves, and, in the words of Justice Anthony Kennedy, "draw down on [his and his colleagues'] capital of trust" with the American public, deciding the presidential election for us by federal judicial decree. "Justices Defend Handling of Florida Election Case."
From the moment Bush's federal judicial complaint reached their desks, Justices William H. Rehnquist, Anthony Kennedy, Antonin Scalia, Clarence Thomas and Sandra Day O'Connor did almost everything wrong:
* They asserted federal jurisdiction when it was arguable that Bush v. Gore presented a classic nonjusticiable political question. One overlooked U.S. Supreme Court precedent, Taylor v. Beckham, 178 U.S. 548 (1900), held that the disputed outcome of a contested Kentucky gubernatorial election presented just such an untenable question for the federal courts.
Florida's 2000 balloting to determine presidential electors was hardly different, but the Taylor precedent, extolling what Professor Alexander Bickel later called the "passive virtues" and counseling restraint by federal judges in such political cases, was given no shrift.
* The partisan and familial ties of four of the five justices (Rehnquist, Thomas, Scalia and O'Connor) to the Republican Party and Bush campaign presented at the very least an appearance of impropriety, requiring the recusal of such justices from any participation in Bush v. Gore under well-established ethical ground rules. See American Bar Association's Model Code of Judicial Conduct, Canon 2. But they never considered recusing themselves.
* Finally, having decided to accept jurisdiction and sit in this high-stakes case when they shouldn't have, the five justices let stand an election result that they themselves deemed to be constitutionally invalid, failing to remand Bush v. Gore to Florida for a new recount in compliance with Equal Protection requirements set forth in their decision. This put the fix into the 2000 presidential election.
Although the five justices' invocation of the Equal Protection rubric is widely suspected of being a partisan ploy, the argument that Florida's original recount was unconstitutional actually has merit: There is no persuasive rational basis for a state to manually recount undervotes -- ballots in which a machine does not register any vote for president -- but not overvotes -- ballots in which a machine registers multiple entries for president, such as a filled-in circle and a handwritten name.
Given the importance of protecting suffrage and obtaining valid election results -- "one person, one counted vote" -- the intent of all voters who accidentally slightly misexecute in the ballot booth should be given effect. The manner of the misexecution is immaterial. As the National Opinion Resource Center report confirms, misexecuted ballots that can be reasonably deciphered for voter intent upon manual inspection can cumulatively determine the outcome of any close election.
On the other hand, the five justices' failure to remand Bush v. Gore to Florida after declaring Florida's recount procedures unconstitutional is legally baseless and indefensible. Their "explanation" is that Dec. 12 was Florida's self-imposed deadline for concluding a presidential vote count and appointing a slate of electors for the victorious candidate and that this deadline was hours away at the time Bush v. Gore was issued.
Under federal law, when a state fixes its slate of electors by Dec. 12, the bona fides of the slate is not subject to attack during Electoral College proceedings held in Congress on Jan. 6. 3 U.S.C. Ch. 1, §5. While meeting such a deadline is to be desired, there is no indication whatsoever that the Florida legislature wished to adhere to this deadline at the expense of securing an accurate vote count and the appointment of the correspondingly deserving slate of presidential electors.
As Florida Supreme Court Justice Leander Shaw stated in his little-noticed but landmark concurring opinion issued in response to Bush v. Gore: "It [Dec. 12] certainly was not a mandatory contest deadline under the plain language of the Florida Election Code (i.e., it is not mentioned there) or this Court's prior rulings." Gore v. Harris, 773 So. 2d 524 (Dec. 22, 2000) (Shaw, J., concurring).
Shaw explained in an ensuing, diplomatically phrased, footnote that the U.S. Supreme Court five-member majority had "confuse[d] apples and oranges," incorrectly citing in the second (contest phase) case the Florida Supreme Court's discussion of the Dec. 12 "safe harbor" deadline in the first (protest phase) case. Shaw opined that the only absolute deadline for Florida to name its slate of electors was Jan. 6.
Dissenting U.S. Supreme Court Justice Stephen Breyer argued that whether time permitted Florida to complete a recount prior to Dec. 18, an alleged drop-dead date when the electors were scheduled to meet, "is a matter for state courts to determine." Breyer also would have left Florida discretion to "take further action [beyond Dec. 18]."
As dissenting Justice John Paul Stevens reminded, the historical record reflects that the state of Hawaii appointed a slate of electors for Senator John F. Kennedy on Jan. 4, 1961, based on a just-completed recount. Vice President Richard Nixon accepted this Kennedy slate in his role as presiding officer of the Electoral College two days later.
Justices of the intellectual caliber of Rehnquist, Kennedy, Scalia, Thomas, and O'Connor do not "confuse apples and oranges" negligently. These justices willfully nullified the rule of law and froze an inaccurate Florida vote count in place on Dec. 12, 2000, in order to secure the presidency for their fellow Republican. As the study results bore out, taking any other route would have imperiled that result.
The U.S. Supreme Court's failure to remand Bush v. Gore to Florida for a new recount was a cataclysmic, wanton act. Although we can never know for certain, the study results suggest that this act of judicial imperialism very likely changed the course of American and world history, denying the victorious candidate the presidency. In all scenarios positing a recount including overvotes, the study reports that Gore would have won.
Following are unknown factors: whether the county canvassing boards would, on remand, have employed the same standards in their new recount of overvotes and undervotes as the study tabulators; whether the new recount could have been completed by Dec. 18 or Jan. 6; and what the ramifications would have been of the Republican-dominated Florida legislature's expected decision to send a competing of slate of Bush electors to the Electoral College on Jan. 6, regardless of the outcome of any new comprehensive manual recount.
The presidency may ultimately have been decided by a vote of the House of Representatives, possibly in favor of Bush, but that procedure is precisely what the Congress prescribed in the Electoral Count Act, the 1887 law arising from the last deadlocked presidential election in 1876. 3 U.S.C. Chapter 1, Sections 5, 6 and 15. It is testament to the simple fact that in America, the people, through their votes and, if necessary, their political representatives, decide who serves as president -- not the Supreme Court.
Article III, Section 1 of the U.S. Constitution states that federal judges are to serve during "good behavior" and not have their compensation reduced during their continuance in office. If the willful, premature conclusion of a presidential election vote count for partisan purposes is not wrongdoing meriting Congressional censure or impeachment, then nothing is left of this good-behavior clause.
While the five justices' severest critics may continue to press for the stronger remedy of impeachment, in the interests of delaying a partisan donnybrook during the ongoing war on terrorism, Congress should settle for censuring the five by a detailed concurrent resolution, a form of rebuke that does not require the president's assent.
This would record for posterity the precise nature of the five justices' culpability in Bush v. Gore and deter any repetition of this stunt by these same judicial kleptomaniacs should a future close presidential election present the opportunity. It will also ensure that we never forget Dec. 12, 2000, a date that will live in jurisprudential infamy.
Eric C. Jacobson is an active member of California and District of Columbia bars. He is the author of and chief lobbyist for a proposed congressional resolution of censure of the five justices responsible for Bush v. Gore.