Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.
—Bush v. Gore, the United States Supreme Court, December 12, 2000
This election was like a searchlight going into some dark places that no one had searched before. The whole mess shows us we have gotten very sloppy in our election procedures.
—Representative Jerrold Nadler, signing on to election reform legislation, Legal Times, December 18
The American Civil Liberties Union, which occasionally shifts into its politically correct mode, says critically of the Bush v. Gore decision, “We must . . . honor the idea of an independent supreme court, and resist those instances when the court succumbs to politics and abandons its unique role as the arbiter of neutral constitutional principles.”
Gwendolyn Mink, professor of politics at the University of California, Santa Cruz, was much more forthright: “The Supreme Court not only stole the 2000 election from the people, it deranged our constitutional order.”
I hope her students read the decision for themselves.
Even The Nation—whose contempt for the decision was reflected in the cover headline of its January 1 issue—conceded inside that “by extending the issue of equal protection to the casting and counting of votes, the Court has opened the door to challenging our highly inequitable system of voting.”
The Supreme Court did seem to say that its “equal protection” decision might be confined to this one case: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
But, despite the Supreme Court’s caveat, the equal-protection argument cannot be confined to this one case. As constitutional-law scholar Jack Balkin of Yale Law School noted in the December 25 National Law Journal, the federal courts will be getting “a lot of cases with people saying, ‘I’ve got an equal protection problem.’ And you’ll get a constitutionalized law of ballot-counting like we have a constitutionalized law of criminal procedure.”
New York University constitutional-law professor Burt Neuborne may have missed this pivotal point when he said that Chief Justice William Rehnquist had dug himself into a deep hole in Bush v. Gore.
Another NYU law professor—election-law specialist Richard Pildes—said in the December 18 Newsday, “I have no doubt voting-rights lawyers will be using this decision [Bush v. Gore], and fairly soon, to challenge existing voting practices and outmoded voting machines.”
In the same issue of Newsday, readers were reminded by law professor Lucas Powe that a majority of the Supreme Court in that highly controversial decision predicted that “it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.”
The justices knew that with the way opened to election reforms, a lot of cases will be heading to courts throughout the nation until all votes are counted according to uniform standards. This historic impetus to more fully protect the very root of constitutional democracy—the right of every vote to be legally and equally counted—was overlooked in the immediate aftermath of Bush v. Gore by the Court’s incendiary critics.
Some of the law professors, columnists, and editorial writers so eager now to bastinado the Supreme Court may feel justifiably foolish on rereading, years from now, the reports of their comments in news clips.
Perhaps, in contrition, they will seek out their former students and tell them what really did happen on December 12 when Bush v. Gore came down.
In the December 14 New York Times, Columbia Law School professor Samuel Issacharoff distilled the long-term significance of that decision:
“Yet though the focus has been on the court’s political balance and the majority’s halting of the Florida recount, the greater import of this case may be a surprising expansion of voting rights, rather than a contraction. (Emphasis added.)
“In an unexpected move, the court announced in its majority opinion a sweeping obligation of the states ‘to avoid arbitrary and disparate treatment of the members of the electorate. Seven justices condemned the disturbing, standardless hand recounts in Florida. And, in doing so, they have broadened constitutional protections for the right to vote.” (Emphasis added.)
I particularly commend the end of Professor Issacharoff’s article to law professors Jeffrey Rosen and Richard Briffault, columnists Anthony Lewis and Sidney Zion, and constitutional lawyer Floyd Abrams, along with the battalions of television anchors and imported “experts” who told the citizenry that the Supreme Court had betrayed itself, and all the rest of us. Said Issacharoff:
“The lasting significance of Bush v. Gore is likely to be the reinvigoration of the line of cases from the 1960s that deemed voting a fundamental right. The court’s language has now opened the door for constitutional challenges of flawed election methods. The spotlight on Florida revealed just how infirm the operations of elections are. The legacy of this case could be a substantial jolt of justice into the voting arena.” (Emphasis added.)
Justice David Souter, though he wanted a final recount, under uniform standards, was one of the seven justices who found a violation of “equal protection under the laws.” He said of the Florida quagmire: “I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.”
Far from stealing the election for Bush, the majority of the Supreme Court shamed the politicians of both parties who, for so long, have failed to secure everyone’s meaningful right to vote.