JUDGES AND ELECTIONS
Stuart Taylor has an interesting piece entitled, “When Judges Should–nd Should No–Intervene In Elections.”
In any event, the large differences between the two cases help illustrate when federal judges should–and should not–intervene in elections. They also point to why, notwithstanding all the hysterical attacks by legions of law professors, Bush v. Gore was a reasonable interpretation of the Constitution.
The three judges, who are among the more liberal members of the famously liberal, often-reversed 9th Circuit, upheld a lawsuit by the NAACP and other groups seeking to postpone California’s recall vote for several months so that all of the state’s voters will be able to use new, more-accurate voting machines.
The court’s logic was so sweeping as to cast doubt on the constitutionality of the election systems of any and all states in which one or more counties buy modern, more-accurate voting machines sooner than others do. The crux of the opinion was that “voters in counties using pre-scored punch-card balloting will have a statistically more probable chance that their vote will not be counted than voters in other counties,” and that this violates the equal protection clause.
The constitutional problem in Bush v. Gore was not the fact that some Florida counties had used old, relatively error-prone punch-card voting machines. It was the rushed, chaotic, unreliable process that the Florida Supreme Court had invented–after Bush had won the machine recount mandated by the state’s election code–to keep alive Gore’s effort to overcome Bush’s freakishly small margin of victory. That court had invented a right to an unprecedented statewide manual recount, while allowing local elected officials to choose vote-counters and to use subjective, non-uniform, inconsistent, and thus easily manipulable, standards to decide whether to count ambiguously marked individual ballots as votes for Gore, Bush, or neither.
This brings me back to Bush v. Gore: While its legal analysis was sound, I wonder whether it would have been wiser for the justices to punt the 2000 election brawl to Congress. The reason is that the 5-4 conservative-liberal split that made Bush president gave rise to possibly unfair but entirely understandable suspicions that all nine justices were driven not by legal principle but by their partisan political preferences. Those suspicions were fanned by the fact that the five justices who overturned the Florida court are ordinarily more deferential to state courts and states’ rights than the four dissenters.