Posted: December 9, 2010
Bush v. Gore in Historical Perspective
The tenth anniversary of Bush v. Gore has not gone unnoticed. There have been personal reminiscences and reflections on its legacy, as well as renewed critiques (and defenses) of the Court’s decision. There has also been at least one academic symposium devoted to a decennial retrospective on the dispute over Florida’s presidential electors. I had the good fortune to participate in this symposium, sponsored by the St. Thomas Law Review, which featured some of the attorneys and public officials involved in the dispute, and I learned details that I had not known previously. (The symposium proceedings were recorded and, as I understand from the Review, will be made public for the benefit of scholarly research. Special kudos to Nate Persily for moderating, and helping the Review to plan the event.)
I want to observe the occasion by looking at Bush v. Gore from an historical perspective, which is also the approach I was asked to take for the St. Thomas symposium. Bush v. Gore is often considered, for better or worse, an anomaly or aberration. Linda Greenhouse has called it a “bad hair day.” Others have characterized it as truly or (if it is possible) especially unique—a situation never to be repeated—and therefore a case that would lack precedential value even if the Court had not explicitly cabined its Equal Protection holding.
I think history, however, sheds a different kind of light on Bush v. Gore. Far from being an anomaly, it is just a particularly recent and glaringly visible sign of a problematic phenomenon that is deeply rooted in our nation’s political culture. This problematic phenomenon concerns our democracy’s legal apparatus for major vote-counting disputes. It has two dimensions—one jurisprudential, the other institutional—and both combined to erupt in the judicial divisions that beset the Court in the case. The jurisprudential dimension is that, as a nation, we are torn between two different ways to view the constitutional right to vote, and we have been so torn from the beginning. One way is to emphasize the constitutional need to protect voters from wrongful disenfranchisement caused by the improper failure to count their particular ballots. The other way is to emphasize the constitutional need to protect the integrity of the voting-counting process from improper manipulation by government officials seeking to favor one of the candidates in the election. These two ways to view the constitutional right to vote can often be in tension with each other, yet both have equally longstanding status in our political pedigree (going all the way back to the Founding), and as a nation we have never attempted to prioritize between or otherwise reconcile the two. Consequently, when a vote-counting controversy emerges over the outcome of a presidential election, we are at sea on what “first principles” to invoke to think through the controversy. Partisans on either side easily can invoke whichever constitutional conception better suits their position in the particular controversy.
The institutional dimension to this problematic phenomenon is that as a nation we also do not know what institution of government we want to have final authority to resolve the jurisprudential debate over how the constitutional right to vote should resolve a particular vote-counting controversy. The Framers of the Constitution did not specify what institution has authority over a vote-counting dispute in a presidential election, and this particular omission is what led to the crisis of 1876 as well as Bush v. Gore. But the institutional uncertainty goes deeper than that. Precisely because the right to vote has a fundamental status in constitutional law (and has always been recognized as having such, even when at the outset the suffrage was significantly limited in scope), there has always been the potential that the judiciary considers as its prerogative the protection of this constitutional right as the judiciary itself thought fit. Moreover, once the Fourteenth Amendment federalized the protection of fundamental constitutional rights against wrongful deprivations by state governments, the institutional uncertainty compounded: now the federal, and not just the state, judiciary would see it as its business to protect the fundamental right to vote against state deprivations (although the federal judiciary’s conception of how best to protect the constitutional right to vote might differ from the state judiciary’s conception, with both conceptions plausible given the unresolved jurisprudential tensions in the context of vote-counting disputes).
I explore the origins of this problematic phenomenon, in both its dimensions, in a just-published piece in a symposium issue of the Indiana Law Review: The Founders’ Bush v. Gore: The 1792 Election Dispute and Its Continuing Relevance. That piece explains how as a nation we got off on the wrong foot, so to speak, and why Bush v. Gore is just a recent and especially glaring misstep. The SSRN abstract of that piece gives a further summary.
But today, the tenth anniversary of the Supreme Court’s 5-4 stay of the statewide recount ordered by the 4-3 decision of the Florida Supreme Court, I want to focus on the particular institutional uncertainty of when the federal judiciary should exercise its supervisory powers over a state judicial system that arguably has contravened the constitutional right to vote in the context of a vote-counting dispute. The issue has no easy answer, which is why Bush v. Gore was an accident (or, for those who view it positively, an appropriate intervention) waiting to happen.
Bush v. Gore is a child, or grandchild, of Reynolds v. Sims, 377 U.S. 533 (1964). That truth is not merely the simplistic point that the majority in Bush v. Gore cited Reynolds as authority for its Equal Protection holding. Rather, Reynolds reoriented the federal judiciary’s relationship to state governments, including state courts, in terms of protecting the constitutional right to vote. In the post-Reynolds era, it is appropriate for the federal judiciary to insist that its conception of how best to protect the constitutional right to vote prevail over a contrary conception adopted by a state’s judiciary. We see this federal judicial attitude in the post-Reynolds decades bubbling beneath the surface in a myriad of lower-salience elections before it explodes in a presidential election in 2000. The most well-known of these harbingers of Bush v. Gore is Roe v. Alabama, which involved the election of Alabama’s Chief Justice.
Prior to Reynolds, the intellectual culture in which federal judges resided was hostile to the kind of comfortable intervention in state election vote-counting procedures that caused Bush v. Gore. This point is best seen by considering Lyndon Johnson’s victory in his 1948 U.S. Senate primary election. As detailed in Robert Caro’s biographical volume, Means of Ascent (part two of The Years of Lyndon Johnson), Johnson won that election because of intentionally fabricated vote totals. His opponent Coke Stevenson attempted to secure federal court intervention, to protect the constitutional right to vote under the Fourteenth Amendment, because in Stevenson’s judgment the state’s judiciary had been captured by pro-Johnson partisans and therefore was unable to serve as a fair and impartial tribunal. In this respect, Stevenson’s position was not dissimilar to Bush’s in 2000. Like Bush’s case, Stevenson’s case went all the way to the U.S. Supreme Court, and an emergency stay was issued, but in 1948 the purpose of the stay was the opposite of the purpose in Bush v. Gore: back then it was to divest the lower federal courts of jurisdiction on the ground that the federal judiciary could not invoke the Fourteenth Amendment to exercise supervisory authority over a state’s vote-counting procedures. As Caro recounts, Justice Hugo Black issued the stay after an unusual in-chambers oral argument, in which Abe Fortas served as Johnson’s lead lawyer. Had the Johnson-Stevenson disputed election occurred after Reynolds, the landscape would have looked entirely different: then Stevenson’s effort to secure federal court protection would have looked routine and compelling. Indeed, on its facts, the Stevenson-Johnson election presents an arguably even easier case for federal court intervention than Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995), which is often taken as an example of when the federal court is right to find a Fourteenth Amendment violation in state vote-counting procedures.
I am not saying here which world is better: pre-Reynolds or post-Reynolds. My point, rather, is that they are so very different, and that we must understand Bush v. Gore as a product of the post-Reynolds world. Anyone who reads Caro’s book thinking that Stevenson was wronged, and wishing that the legal means would have been available to give him redress—means that would exist less than two decades later—must be prepared to accept that in 2000 the Supreme Court, in principle, had the proper authority to stop what it saw as a vote-counting process that had become hijacked by partisanship. Conversely, anyone who objects to the U.S. Supreme Court’s intervention in Bush v. Gore must be prepared to swallow the kind of outright electoral theft of a U.S. Senate election that was perpetrated in Texas in 1948, as portrayed meticulously by Caro, with no ability of the federal courts to intervene. If one is intellectually honest when considering these two celebrated cases, one cannot have it both ways.
As one ponders whether it is better to live in a pre-Reynolds or post-Reynolds world in this regard, consider this additional historical point. The first Justice John Marshall Harlan, often known as the “Great Dissenter” because of his clairvoyant dissent in Plessy v. Ferguson, also penned a dissent that anticipated the majority position in Bush v. Gore exactly 100 years later. The case was Taylor v. Beckham, 178 U.S. 548 (1900), and it involved a dispute over counting the ballots in a Kentucky gubernatorial election. The facts are ugly. One of the candidates was assassinated, and it appeared to many (including Justice Harlan) that the election was being stolen through fraudulent vote-counting. The victim of this apparent electoral theft, obtaining no relief from a reputedly partisan state judiciary, sought refuge in the U.S. Supreme Court. But this was the pre-Reynolds world, and the Court rejected the case on the same ground that Justice Black ruled in 1948: it is improper to invoke the Fourteenth Amendment as a basis for federal court supervision of a state vote-counting dispute. Justice Harlan, however, vigorously dissented. In language that would seem appropriate for a post-Reynolds world, he spoke of the necessity of federal court protection of the fundamental constitutional right to vote.
Here is just the finale of what Harlan wrote in his impassioned Taylor v. Beckham dissent:
“[T]he overturning of the public will, as expressed at the ballot box, . . . in order to accomplish partisan ends, is a crime against free government, and deserves the execration of all lovers of liberty. . . . I cannot believe the judiciary is helpless in the presence of such a crime. The person elected, as well as the people who elected him, have rights that the courts may protect. . . . I am of opinion that the writ of error should not have been dismissed, and that the [C]ourt should have adjudged that the decree below took from Taylor and Marshall rights protected by the 14th Amendment of the Constitution of the United States.”
Was Harlan wrong? He certainly was not wrong in Plessy even if he was alone at the time. But if Harlan was right in Taylor v. Beckman, then it is hard to say that Court’s December 9th stay in Bush v. Gore was institutionally inappropriate. If it is proper for federal courts to intervene when they think they see state courts tolerating, or even perpetrating, stolen elections, then the warrant exists for the majority in Bush v. Gore if they think that something of the kind is occurring. We can debate whether what the 4-3 decision of the Florida Supreme Court did amounted to a danger of electoral theft, but then we are back into the jurisprudential dimension of our longstanding problematic phenomenon: there is a genuine tension in a constitutional tradition about how best to handle the kind of vote-counting dispute that the Florida Supreme Court faced.
The truth is that we are unsettled regarding the institutional dimension as we are the jurisprudential dimension. As much as we inhabit the post-Reynolds world, we are ambivalent towards its full implications. We can read Harlan’s dissent in Taylor v. Beckham and be sympathetic, but we also fear overreaching by a federal judiciary. We don’t want to federalize every state vote-counting dispute, and in the ten years after Bush v. Gore we have not yet figured out where to draw the line. Indeed, we only somewhat recognize that any line drawn by the federal judiciary is one ultimately policed by the federal judiciary, and thus there is the inevitability of the federal judiciary having a general supervisory role in these cases even if we purport to limit the exercise of this federal power to a narrow subset of extreme instances.
Bush v. Gore came to us a century after Harlan’s dissent in Taylor v. Beckham and can be seen as the fulfillment of Harlan’s vision of a role for the U.S. Supreme Court to protect the constitutional right to vote, and to have one’s ballot counted fairly, from partisan abuse by state officials. Now ten years after Bush v. Gore, we can begin to see that case as on a historical continuum that starts with the Founding, extend through the Hayes-Tilden dispute of 1876 and on to Taylor v. Beckham at the end of the nineteenth century. A half-century later is the Stevenson-Johnson dispute, which is the culmination of the “no jurisdiction” view adopted by the Taylor v. Beckham majority before the pendulum begins to swing with the advent of Reynolds v. Sims.
Will the pendulum swing back again, because of antipathy to Bush v. Gore or otherwise? Or will we oscillate uncertainly in some kind of institutional “no man’s land,” not knowing what we think of the relationship between the state and federal judiciaries when it comes to vote-counting disputes? And will our institutional uncertainty continue to be compounded by jurisprudential uncertainty regarding the constitutional principles that should apply to these disputes? Unless as a nation we begin to grapple systematically with these two dimensions of uncertainty, I fear that Bush v. Gore, far from being an isolated aberration that we can easily forget, will instead be just our generation’s name for a perennial weakness in our system of democracy.
Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile