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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Comparing Two Cases

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June 29, 2004

The recent gerrymander case, Vieth v. Jubilerer, was decided by the same 5-to-4 majority as Bush v. Gore: the conservative coalition of Rehnquist, O'Connor, Scalia, Kennedy, and Thomas prevailing over the liberal bloc of Stevens, Souter, Ginsburg, and Breyer. Both cases involved claims that a state's election procedures violated the federal Equal Protection Clause. In Bush v. Gore, the Court embraced the Equal Protection claim, shutting down the Florida recount in 2000. In Vieth, however, the Court rejected the Equal Protection claim, even if the gerrymander there intentionally and effectively foreclosed majority rule in Pennsylvania elections. (For more details, see archive.)

What principle explains the majority's willingness to intervene in Bush v. Gore, but not Vieth? Conversely, what justifies the dissenters in desiring intervention in Vieth, but not Bush v. Gore? Must we assume that only ideology, and not principle, explains all nine votes in these two cases? No, there is a principled basis for explaining why the Court's intervention was inappropriate in the Florida recount, whereas it was called for in the gerrymander case.

First, and paramount, it was unnecessary for the Court to intervene in the Florida recount, as the federal law had already specified a process whereby Congress ultimately would resolve recount disputes in presidential elections. There was no reason to believe, when the Court short-circuited this process, that Congress would have been unable to perform its assigned function. By contrast, in Vieth, there were no alternative means to rectify the gerrymander that blocked the operation of majority rule. Because the gerrymander determined congressional districting, one could not rely on Congress to undo the undemocratic gerrymander.

Second, Bush v. Gore concerned the outcome of one specific election, with the consequence that judicial intervention inevitably amounted to choosing who won the White House. Vieth, by contrast, required the Court only to declare a systemic rule regarding gerrymanders, a rule which could have been applied prospectively, so that the Court never would be in the position of declaring winners and losers, but only in setting forth the minimum requirements for democracy to function. In other words, in Bush v. Gore, the Court intervened in precisely the circumstance in which intervention was most perilous, whereas in Vieth the Court failed to intervene in the situation where intervention was most warranted.

What is worse, the mistaken intervention in Bush v. Gore may have caused the excessive timidity in Vieth. Justice Kennedy, although hesitant in Bush v. Gore, ultimately decided to stop the recount so that Florida could get the benefit of the "safe harbor" under the federal Electoral College law. Justice Kennedy, also the fence-sitter in Vieth, was troubled by the gerrymander, but backed off from permitting any remedy. Was it an instance of "once burned, twice shy?" The criticism of Bush v. Gore has been ferocious. Justice Kennedy, regrettably, seems to have learned the wrong lesson and made himself unavailable to perform a rescue mission for democracy when it is really needed.