P & Thread: I STRONGLY recommend reading the following piece by Ronald Dworkin. Any lingering doubts that this past election was anything but a virtual coup d'etat are now demolished. In addition, current news accounts indicate that Gore's national popular vote lead is well over half a million and Fla. recounts by news organizations suggest an actual Gore victory somewhere in excess of 20k votes. The following Dworkin analysis is deeply disturbing. M2
January 11, 2001
A Badly Flawed Election
RONALD DWORKIN
1.
The 2000 election has finally ended, but in the worst possible way—not with a
national affirmation of democratic principle but by the fiat of the five conservative
Supreme Court justices—Chief Justice Rehnquist and Justices Kennedy,
O'Connor, Scalia, and Thomas—over the fierce objection of the four more
liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The
conservatives stopped the democratic process in its tracks, with thousands of
votes yet uncounted, first by ordering an unjustified stay of the statewide recount
of the Florida vote that was already in progress, and then declaring, in one of the
least persuasive Supreme Court opinions that I have ever read, that there was no
time left for the recount to continue. It is far from certain that Gore would have
been elected if the recounts had been completed; some statisticians believe that
Bush would have picked up more additional votes than Gore. But the Court did
not allow that process to continue, and its decision ensured both a Bush victory
and a continuing cloud of suspicion over that victory.
Though it took six opinions for all the justices to state their views, the argument of
the five conservatives who voted to end the election was quite simple. The
Florida Supreme Court had ordered a recount of "undervotes" across the state,
but instead of adopting detailed rules about how the counters were to decide
whether a ballot that the counting machine had declared to have no vote for
president was actually a vote for one candidate—rules that might have specified,
for example, that if not a single corner of the "chad" of a punch-card ballot had
been detached, the ballot could not count as a vote—the Florida court had
directed only that counters count a vote if they found, considering the ballot as a
whole, a "clear intention" of the voter to vote. The five conservatives noted that
this more abstract standard had been applied differently by counters in different
counties, and might be applied differently by different counters within a single
county, and they therefore held that the use of the standard denied voters the
equal protection of the law that the US Constitution's Fourteenth Amendment
requires.
The natural remedy, following such a ruling, would be to remand the case to the
Florida court to permit it to substitute a more concrete uniform counting standard.
Breyer, in his dissenting opinion, suggested that course. "[The] case should be
sent back for recounting all undercounted votes," he said, "in accordance with a
single uniform standard." But the conservatives declared that since the Florida
legislature intended to take advantage of the "safe harbor" provision of federal
law, which provides that election results certified by states to Congress by
December 12 are immune from congressional reexamination, any further recount
the Florida court ordered would have to be completed by that date—which
ended two hours after the Supreme Court handed down its judgment. The
conservatives had remanded the case to the Florida court, for "proceedings
consistent with" their opinion, and then told them that no proceedings could
possibly be consistent with their opinion. The election was over, and the
conservative candidate had won.
The 5-4 decision would hardly have been surprising, or even disturbing, if the
constitutional issues were ones about which conservatives and liberals disagree as
a matter of constitutional principle—about the proper balance of authority
between the federal and state governments, for example, or the criminal process,
or race, or the character and extent of individual rights, such as abortion rights or
rights of homosexuals, against state and national authorities. But there were no
such constitutional issues in this case: the conservatives' decision to
reverse a state supreme court's rulings on matters of state law did not reflect any
established conservative position on any general constitutional question. On the
contrary, conservatives have been at least as zealous as liberals in protecting the
right of such courts to interpret state legislation without second-guessing by
federal courts, and on the whole less ready than liberals to appeal to the
Fourteenth Amendment to reverse state decisions.
It is therefore difficult to find a respectable explanation of why all and only the
conservatives voted to end the election in this way, and the troubling question is
being asked among scholars and commentators whether the Court's decision
would have been different if it was Bush, not Gore, who needed the recount to
win—whether, that is, the decision reflected not ideological division, which is
inevitable, but professional self-interest. The five conservatives have made this
Supreme Court the most activist Court in history. They aim to transform
constitutional law not, as the Warren Court did, to strengthen civil liberties and
individual rights, but rather to expand the power of states against Congress,
shrink the rights of accused criminals, and enlarge their own powers of judicial
intervention.1
For three of them—Rehnquist, Scalia, and Thomas—the agenda presumably
includes finally abolishing the abortion rights that were first established in Roe v.
Wade over a quarter of a century ago, a decision they have never ceased
insisting should be overruled. The prospects of future success for the
conservatives' radical program crucially depend on the Court appointments that
the new president will almost certainly make. Those appointments will determine
whether the conservatives' activism will flourish (even adding, perhaps, the two
new votes that would be needed to overrule abortion rights so long as
O'Connor and Kennedy refuse to take that particular step) or whether it will be
checked or reversed. Bush long ago signaled, in naming Scalia his favorite
justice, his intention that it flourish.
We should try to resist this unattractive explanation of why the five conservative
justices stopped the recount process and declared Bush the winner. It is, after
all, inherently implausible that any—let alone all—of them would stain the
Court's reputation for such a sordid reason, and respect for the Court requires
that we search for a different and more creditable explanation of their action.
Unfortunately, however, the legal case they offered for crucial aspects of their
decisions was exceptionally weak. Their first major ruling, on Saturday,
December 9 (soon after the recounting began), was to halt the recount even
before they heard argument in Bush's appeal of the Florida Supreme Court
decision ordering those recounts. That ruling was in itself lethal for Gore. Even if
the Court had ultimately rejected Bush's appeal, and allowed the recount to
resume, it could not possibly have been completed by December 12, the date
which the conservatives later declared the final deadline.
Scalia argued that this serious injury to Gore was necessary to prevent
irreparable harm to Bush: he said that Bush would be harmed if the recounts
continued because if the Court later decided that the recount was illegal, the
public's knowledge of the results would cast a "cloud" over "the legitimacy of his
election." That bizarre claim not only assumes that Bush would have lost in the
recount, but also that the public is not to be trusted. Public knowledge that Gore
would have won, if the recounts had continued and been accepted, would
produce doubt about a Bush election only if the public disagreed with the
Court's judgment that the recount was illegal; and it is constitutionally improper
for the Court to keep truthful information from the public just because the
information might lead it to conclude that the election was a mistake or that the
Court was wrong.2
1 For a detailed
account of this
conservative activism,
see Larry Kramer, "No
Surprise. It's an
Activist Court," The
New York Times,
December 12, 2000.
2 Scalia also said that
since "it is generally
agreed" that further
handling of the ballots
might degrade them,
Bush might suffer
irreparable harm if that
degradation made a
further, more accurate,
recount impossible.
But there is no
evidence (only
Republican
allegations) that a
recounting of ballots
by judges is likely to
injure those ballots,
no request by the
Bush team for any
further recounting,
and no real prospect
of the Supreme Court
ordering one.
A Badly Flawed Election
RONALD DWORKIN
3
(Back to page 1)
The conservatives' second major decision was that the Florida court's "clear
intention of the voter" standard for manual recounts violated the equal protection
clause because different counties and counters would interpret that standard
differently. Two of the more liberal justices—Breyer and Souter—agreed,3 but
the other liberal justices, Ginsburg and Stevens, rejected the argument, and they
had the better case. The equal protection clause forbids voting procedures or
arrangements that put particular people or groups at an electoral disadvantage.
The Court has struck down poll taxes that discriminated against the poor, for
example, and, citing a "one-person-one-vote" electoral standard, has prohibited
electoral districts of very different size because these give each voter in larger
districts less impact on the overall election result than voters in smaller districts
have. But a general standard for counting undervotes that may be applied
differently in different districts puts no class of voters, in advance, at either an
advantage or disadvantage. If a voter's county uses a more permissive test to
determine "clear intent," then he risks having his ballot counted when he did not
intend to vote; if it uses a strict standard, he risks having his ballot ignored when
he did intend to vote. One cannot say, in advance, that either a permissive or
strict test is more accurate, and therefore cannot say that a system that
combines both within a single state puts any identifiable group at an automatic
disadvantage.4
As Gore's counsel, David Boies, pointed out in oral argument, Florida's use of
different voting machinery in different counties is much more arguably a violation
of equal protection, because some types of machine are well known to be much
less accurate than others. Punch-card ballot readers, which are used in counties
with a high minority population such as Miami-Dade, ignore more than three
times as many ballots as optical ballot readers do, and therefore give voters in
those counties systematically less chance of having their votes counted.
The Court's equal protection decision is surprising in another way. The
one-person-one-vote principle applies not just to presidential elections but to
elections for every federal and state office, major or minor, across the country. I
do not know how many states use nothing more concrete than a "clear intent of
the voter" standard for manual recounts, but several do, and the Supreme Court
has now declared that they have all been acting, no doubt for many decades,
unconstitutionally. This ruling alone may require substantial changes in the
nation's electoral laws, and the Supreme Court may well regret having made it.
The conservatives' equal protection claim is defensible, however, and, as I said,
two of the more liberal justices also accepted it. But the conservatives' third
major decision, and by far its most important, is not defensible. The most natural
remedy for the supposed equal protection violation, as all the dissenters insisted,
would be to remand the case to the Florida court so that it could establish
uniform recount standards and attempt to complete a recount by December 18,
when the Electoral College votes. But the conservatives held that since the
Constitution gives the Florida state legislature authority over its own election
law, and since that legislature would wish to take advantage of the federal "safe
harbor" law that guarantees a state certification of presidential electors immunity
from congressional challenge if the certification is made by December 12, any
recounts beyond that date, even those necessary to insure that all valid votes
were counted, would automatically be unconstitutional.
3 The New York Times
suggested that they
agreed in hopes,
which failed, of
constructing a
compromise decision
to send the case back
to allow the Florida
court to set more
concrete counting
standards. See Linda
Greenhouse, "Bush
Prevails," December
13, 2000, p. A1.
4 The Florida Supreme
Court had adopted the
"clear voter intent"
standard from the
Florida statutes. In his
dissenting opinion,
Souter said that he
could see no rational
basis for using such
an abstract test for
inspecting ballots. But
a state might
rationally decide that
accuracy would be
improved overall by
using a general
standard rather than
trying to anticipate in
detail all the evidence
that a ballot might
present: a set of
concrete tests might
not have allowed, for
example, for the
Florida voter who
wrote "I vote for Al
Gore" across his
otherwise unmarked
and unpunched ballot.
A Badly Flawed Election
RONALD DWORKIN
4
(Back to page 1)
But the safe harbor provision is not mandatory; it does not provide that a state
loses its electoral votes if these are not submitted by December 12, but only that
its votes, if submitted after that date, might conceivably be challenged in
Congress, if reason can be found to challenge them. Certainly the Florida
legislature would wish to meet the December 12 deadline if it fairly could, and
its legislation should be interpreted, as the Florida Supreme Court said that it did
interpret it, with that aim in mind.
But it goes far beyond that safe assumption to declare, as the five US Supreme
Court conservatives did, that the Florida legislature meant to insist that the
optional deadline be met at all costs, even if it was necessary to ignore the
principles of accuracy and fair treatment that underlie the rest of the election
code. That would be a bizarre interpretation of any state's election law—what
legislature would wish to be understood as purchasing an immunity it would
almost certainly never need at the cost of sacrificing its basic commitments of
justice?—and there is no evidence that the Florida legislature has ever made that
choice.5 Even if the conservative justices thought this bizarre interpretation
plausible, moreover, it would still be wrong for them to impose that
interpretation on the Florida Supreme Court, which, according to the most basic
principles of constitutional law, has final authority in interpreting its own state's
law so long as its interpretation is not absurd. The conservatives should, at most,
have asked the Florida court to decide for itself whether Florida law, properly
understood, declares that the safe harbor must be gained no matter what
unfairness to Florida voters is necessary to gain it.
Even the two dissenters who had agreed with the majority that the Florida
court's recount scheme violated the equal protection clause thought it absurd to
insist on the December 12 deadline, and all of the dissenters feared the impact
on the Court itself of so weak an argument for so politically divisive a decision.
Justice Stevens said the decision "can only lend confidence to the most cynical
appraisal of the work of judges throughout the land." "We do risk a self-inflicted
wound," Breyer added, "a wound that may harm not just the court, but the
nation," and he also noted, pointedly, that the time pressure the conservatives
cited was "in significant part, a problem of the [Supreme Court's] own making."6
We must try, as I said, not to compound the injury to the Court with reckless
accusations against any of its members. But those of us who have been arguing
for many years that the Supreme Court makes America a nation of principle
have a special reason for sorrow.
2.
The deeply troubling Supreme Court decision in Bush v. Gore makes even
plainer the urgency of radically changing how we elect our presidents. Our
present system is an eighteenth-century antique: it presupposes a starkly elitist
conception of government that was popular then but which no politician would
dare endorse today. The Constitution's authors did not trust the people to elect
the president directly; they expected the members of the Electoral College to be
distinguished and independent citizens who would make up their own minds,
after collective deliberation, about who the president and vice-president should
be. It was not as important as it later became how those electors were chosen,
because, in principle, the selecting body would have no control over or even
confidence in the opinions of the independent electors they chose. There was
nevertheless some initial
5 This interpretive
question asks not
whether the present
Florida legislature,
dominated by
Republicans who
seemed anxious to
deliver their state to
Bush in any way
possible, would make
that choice, but
whether it would be
justified by sound
legal interpretation of
existing Florida law,
which cannot appeal
to partisan political
motives of that
character.
6 When on December
4 the Court vacated
the Florida Supreme
Court's initial decision
extending the time for
manual recounts, and
asked for clarification
of the ground of that
decision, several
commentators praised
the Court for a
minimally
interventionist
decision, noting that
the liberal justices
could join in that
minimal opinion to
achieve unanimity.
But it was not a
minimally
interventionist
decision: it laid the
ground for a dubious
understanding of the
constraints on state
judges interpreting
their state's election
law that might well
have accounted, as
Breyer noted in his
dissent, for the Florida
Supreme Court's
reluctance to stipulate
more concrete
counting standards,
for fear that the
Supreme Court would
declare that it was
making new law.
A Badly Flawed Election
RONALD DWORKIN
5
(Back to page 1)
disagreement at the Constitutional Convention about the selection of electors:
some delegates wanted them elected by popular vote, some by Congress, and
some by the state legislatures.
The Convention finally decided, by way of compromise, not itself to establish any
electoral method, but to delegate the choice of methods to the state legislatures.
Each state was assigned a number of electors equal to the total number of that
state's representatives and senators in Congress (that formula was a concession
to smaller states which had fewer representatives but the same number of
senators as much larger states) and the state legislatures were directed to decide
how their state's electors would be chosen. A majority in the legislature might
select the electors themselves, or provide for a popular vote within the state to
select them (which might be by a statewide vote for all the electors, or by
districts, or by proportional representation). Or, presumably, it might direct that
electors be selected by lot. Once all the electors were selected in whatever ways
the various state legislatures chose, they would meet in their states, deliberate,
and vote for a president; if no presidential candidate received a majority of their
votes, then the House of Representatives would choose a president with each
state delegation having one vote, so that the smallest state had as much influence
as the largest.
America has long since rejected the intellectual premises of this baroque system.
Now we embrace the very different principle that the point of elections—and
particularly the election of a national president, the one office we elect all
together—is to determine and reflect the people's will.
(Continued in next post) |
