Split over the decision

Two law professors offer two views of the Supreme Court ruling. Rotunda: The Florida court was acting like a psychic hot line; Raskin: The Supreme Court has disgraced itself.

By Ronald Rotunda - Jamin Raskin

Published December 13, 2000 9:11PM (EST)

Ronald Rotunda is a professor of law at the University of Illinois and served as assistant majority counsel on the Watergate Committee.

Seven members of the U.S. Supreme Court thought the Florida ballot counting procedures violated the equal protection and due process provisions of the Constitution, and I think that they really had no alternative than to overturn the Florida Supreme Court.

Frankly, I don't understand the argument that in counting votes, we should count votes where there is nothing on the ballot. It's not like somebody wrote in the name Al Gore and the machines couldn't read it. The reason the machines couldn't read ballots was that there was no mark there; the person did not punch. I have no trouble with counting the hanging chad, which has been pushed through, but is hanging by one thread. But we know from statistical analysis that doesn't change the result, because that tends to be randomly distributed between Republicans and Democrats. There's no reason why Democrats can't push as hard as Republicans.

The effort by the Florida Supreme Court to allow and then demand that counties recount, without setting any standard, was damaging. And that's what Leon County Circuit Judge Sanders Sauls said, as well as the other trial judge on the recount. We've never counted dimples before, we have an attorney general's opinion that says you don't do that, we have the secretary of state's opinion -- and we had these all before this happened. We have instructions on exactly how to punch through, and while we look at the intent of the voter, we're not acting like a psychic hot line.

If you were going to write a statute to handle the current situation, you would never write the one that the Florida Supreme Court created. Nor would any candidate accept it. If you got Bush and Gore together and put them in a room and said, "Look, you've got an election tomorrow. It's all going to hinge on Florida, and one party's going to be 1,700 votes ahead of the other. Here's what we'd like to do: Let's hand count some of the ballots in counties where the loser is really popular. And we'll go to some of the counties and we'll pick the precincts where the loser got 75 percent of the votes, even though he only won the county by 53 percent, and then we will have Democratic canvassing judges count dimples and scratches on the ballots. Then you'll see the pictures that were all over the world of a fellow rubbing his chin and looking at a ballot." No candidate in his right mind would agree to that. And that's what the U.S. Supreme Court said.

It said that the procedure the Florida Supreme Court set up, which is to have standardless vote counting, violated the equal protection and due process clauses of the Constitution. Not only did they not have standards, but they also didn't count all of the votes. In Miami-Dade, they picked all of the votes for 20 percent of the precincts, but then only undervotes for the other 80 percent. That makes absolutely no sense. Basically, the Florida Supreme Court was trying to mandate enough votes for Gore until he got within 150 of winning. Then out of the 50,000 undervotes, the court thought, we ought be able to find 151 for him.

Indeed, one of the significant questions of the oral arguments Monday was the question Justice Anthony Kennedy asked of Gore attorney David Boies. "If the Florida Legislature came down yesterday and did everything the Florida Supreme Court did you'd call that new legislation, wouldn't you?" he asked. Boies agreed. Then Kennedy asked, "Well, when a court does it, why isn't that new legislation?" Boies said he hadn't thought about it. Well, the nine justices did.

Though there will be bitterness over the Supreme Court's decision, we have had split decisions in the past, and we've learned to live with them. The court to some extent reflects the country. The court is divided, just as the country is divided. That's not surprising. But the court wasn't divided by political lines. The justices are human beings, they act in good faith, they try to do the best they can. And I think they did a good job under the circumstances -- one of which being that things got pushed a bit. If they had more time to think about it, the ruling might have been 9-0 instead of 7-2.

We have not just the oldest Constitution in the world, but the oldest by far. We also have had in over 200 years peaceful transitions, and this will be another. Gore supporters will say he won the popular vote. But we don't really know that, do we? Unless we have a manual recount of the whole country. People will live with that and we'll have to move on.

In terms of legal remedy and the courts of law, Gore is at the end of the road. People forget that if you count all of the rulings of Florida judges he lost the majority of his cases. Of course, that is not the way we count. And what ultimately counts is the final appellate court and the Supreme Court.

The only possibilities remaining for Gore are extra-judicial alternatives. He can attempt to persuade an elector to change his vote. The law calls it the "faithless elector." We have never had that happen in a case where it has mattered, but we have had Congress accept faithless electors in situations where it didn't matter. So, that is certainly one possibility.

Jamin Raskin is a professor of law at American University in Washington. He has served as Massachusetts assistant attorney general and as general attorney for the Rev. Jesse Jackson's Rainbow Coalition.

I challenge anyone to tell me with a straight face that Chief Justice William Rehnquist, Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas and Justice Sandra Day O'Connor would have written this decision to reverse a judgment of the Florida Supreme Court ordering a manual recount in the event that Al Gore had a tenuous 150-vote lead in the presidential election. This is an entirely partisan and political act that led to great division on the Supreme Court and will lead to great division in the country. The U.S. Supreme Court has done grave damage to the rule of law and to the idea that the people should govern in a democracy.

I would make several points about the equal protection basis of the holding. First, it's a complete bait-and-switch operation because the original opinion was based on the flimsiest and most trumped up Article II argument. Now they've switched over to an equal protection argument that the conservatives would reject in any other circumstance.

Second, if it's the case that a manual recount under the intent of the voter standard would violate equal protection, then what about machine counts in the first instance that led to radically different numbers of invalidated and void ballots in different counties where different equipment was used -- some older, some newer? Why doesn't that violate equal protection? Instead, the Supreme Court seems to be deifying the vote-counting machines. Is it really the case that we get a more accurate count with the machines than we do with the people? That seems deeply suspect to me.

The U.S. Supreme Court also says that the Florida Supreme Court violated equal protection by allowing different counties to apply a different standard of determining a voter's intent. But I don't think the intent of the voter is that ambiguous, and it certainly doesn't lead to the radical disparities that you get from having different kinds of machines in different counties.

Third, the five conservatives say, "Sorry, the clock has run out," but the time's only up because of their decision to grant an emergency stay over the weekend. In that stay, you've got probably the most comical line of all from Justice Scalia, who said that further counting might lead to physical degradation of the ballots.

To go even further on the equal protection point: This is a court which has insisted that minority plaintiffs demonstrate a discriminatory purpose before an equal protection violation is found. Where was Florida's purpose to discriminate against anyone, much less racial minorities? There was racial discrimination, allegedly, in this campaign. But of course that didn't become part of the Supreme Court's deliberations.

The whole masterful effort of the Republican campaign was to zero in on doing everything possible to preserve Bush's initial lead and to keep all other issues out. What's ironic is that there were real equal protection problems in the machine-based voting in Florida and in the racial intimidation of voters. But none of those ever surfaced in the Supreme Court opinion.

Theoretically, there are still legal options available to Gore. The Florida Supreme Court could define a new standard underneath intent of the voter and then try to reengage the process. Arguably, that would go back before the U.S. Supreme Court, and in their new partisan dress, they would probably find some constitutional violation with it.

The rhetoric of the dissenters -- Justice John Paul Stevens, joined by justices Stephen Breyer, David Souter, Ruth Bader Ginsburg -- tells an important story about how the Supreme Court has disgraced itself in the eyes of millions of people.

It's one thing to have a difference in jurisprudential philosophies that leads to different results in highly controversial issues, like abortion or desegregation. It's another thing to have a last-minute jurisprudential change of heart in the court that leads to a different outcome in a presidential election with tremendous polarization among the justices. The Supreme Court justices -- many of them at least -- have brought themselves down to the level of ward healers, trying to get a parking ticket fixed for the party boss.

If you read the dissenting opinions, you get a sense of the ferociousness of the divide on the court. Justice Breyer talked about the public's confidence being a public treasure and how it's a vitally necessary ingredient of the rule of law, and he says that the court risks a self-inflicted wound -- a wound that will harm not just the court but the nation.

It's not as if there are well developed judicial philosophies behind the positions that are being taken. They have betrayed almost every principle that they have established in the equal protection field and in voting rights. In one sense, you can view this as the culmination of the Rhenquist court's assault on voting rights, beginning in 1993 with Shaw vs. Reno, a case in which the court found that so-called "bizarrely drawn" majority African-American and Hispanic congressional districts violate equal protection. In that case, too, the court defined no specific constitutional injury. In that case, too, the court found no purpose to discriminate. But the court did find that the rights of white voters were somehow implicated by virtue of the existence of these majority minority districts. In this case, too, we have the Supreme Court overriding state law, violating federalism and splitting hairs on a matter of state law in order to achieve what looks to be a very dubious political result.

Ronald Rotunda

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Jamin Raskin

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2000 Elections Supreme Court