Yale Law School Yale Law School Legal Scholarship Repository Faculty Scholarship Series Yale Law School Faculty Scholarship 12-1-2009 Bush, Gore, Florida, and the Constitution Akhil Reed Amar Yale Law School Follow this and additional works at:http://digitalcommons.law.yale.edu/fss_papers Recommended Citation Amar, Akhil Reed, "Bush, Gore, Florida, and the Constitution" (2009).Faculty Scholarship Series.Paper 788. http://digitalcommons.law.yale.edu/fss_papers/788 This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please [email protected]. Florida Law Review Founded 1948 Formerly University of Florida Law Review VOLUME 61 DECEMBER 2009 NUMBER 5 DUNWODY DISTINGUISHED LECTURE IN LAW BUSH, GORE, FLORIDA, AND THE CONSTITUTION Akhil Reed Amar* I. THE COURT(S) AND THE CONSTITUTION(S) ............................ 946 II. THE ROLE(S) OF THE LEGISLATURE(S) ................................... 957 III. EQUAL PROTECTION ............................................................... 961 IV. VOTER INTENT IN BUSH VERSUS GORE AND BUSH v. GORE... 964 V . RE FORM .................................................................................. 967 Ten years ago this week, Dunwody Lecturer Cass Sunstein stood at this podium and offered some thoughts about the then-recent impeachment of President Clinton. Professor Sunstein titled his remarks Lessons from a Debacle. From Impeachment to Reform.' Today I shall share with you some thoughts about a different debacle, one that arose not from the effort to oust Bill Clinton, but from the effort to choose his successor. The failed attempt to remove Clinton in the late 1990s and the Bush- Gore Florida extravaganza of 2000 share some obvious similarities. Both dramas gripped the nation and the world, dominating the headlines and the airwaves day after day. Both episodes featured intense, high- stakes political partisanship, not just behind the scenes, but also in the spotlight. Both chapters in America's unfolding constitutional saga forced participants to ask themselves whether, where, and how a * Sterling Professor of Law and Political Science, Yale University. This essay derives from the Dunwody Lecture delivered at the University of Florida on March 24, 2009. Special thanks to Lindsey Worth for her incomparable legal research, analytic commentary, and editorial assistance. Thanks also to the commentators for their willingness to engage the ideas presented in this essay, and in particular to Rick Hasen for directing me to several articles that had escaped my initial survey of the vast literature on Bush v. Gore. 1. Cass R. Sunstein, Lessonsf rom a Debacle: From Impeachment to Reform, 51 FLA. L. REv. 599 (1999). 946 FLORIDA LA WR EVIEW [Vol. 61 coherent line could be drawn separating law from raw politics. And both times, Al Gore was the odd man out. (Remember, had Bill Clinton's opponents actually succeeded in forcing him from office in early 1999, his loyal Veep would have become President long before "butterfly ballots" and "dimpled chads" entered the national lexicon.) In the years since the Florida recount, constitutional scholars from across the spectrum have weighed in with detailed legal analyses of many of the relevant statutory and constitutional issues. Two particularly fine collections of legal essays were published as books b the University of Chicago Press and by Yale University Press. (Interestingly enough, the ubiquitous Professor Sunstein published three essays in these books;3 yet another essay was authored by Professor Frank Michelman, who stood at this podium as the Dunwody Lecturer exactly one decade before Professor Sunstein and prophetically addressed the topic of voting rights.)4 At this late date-now that all the shouting here in Florida has subsided and so many scholarly assessments are already in print-some of you may quite reasonably be wondering whether there are any new things left to say about the Bush-Gore episode. In what follows, I hope to put the various pieces of the Bush-Gore puzzle together in a distinctive way and to highlight a few points that are not yet widely understood. I. THE COURT(S) AND THE CONSTITUTION(S) Let's start by noticing that a wide range of scholars seem to agree with the following proposition: "The Supreme Court twisted the law in the Bush-Gore affair." But here's the rub: Which Supreme Court did the twisting? Some scholars (mostly liberals) say that the United States Supreme Court played fast and loose with the law, while other scholars (mostly conservatives) insist that it was the FloridaS upreme Court that acted in a lawless, partisan fashion. Before I offer my own take on this topic, let me give you a flavor of the highly charged commentary thus far. On January 13, 2001, a month after the U.S. Supreme Court definitively ended the Florida recount, 2. BUSH V. GORE: THE QUESTION OF LEGITIMACY (Bruce Ackerman ed., Yale University Press 2002) [hereinafter LEGITIMACY]; THE VOTE: BUSH, GORE AND THE SUPREME COURT (Cass R. Sunstein & Richard A. Epstein eds., University of Chicago Press 2001) [hereinafter THE voTE]. 3. See Cass R. Sunstein, Does the Constitution Enact the Republican Party Plaform? Beyond Bush v. Gore, in LEGITIMACY, supra note 2, at 177; Cass R. Sunstein, Introduction: Of Law and Politics, in THE VOTE, supra note 2, at 1; Cass R. Sunstein, Order Without Law, in id., at 205. 4. Frank I. Michelman, Suspicion, or the New Prince,i n THE VOTE, supran ote 2, at 123; Frank I. Michelman, Conceptions of Democracy in American ConstitutionalA rgument: Voting Rights, 41 FLA. L. REv. 443 (1989). DUNWODYDISTINGUISHED LECTURE IN LAW more than 500 law professors from over 100 schools published a joint statement in the New York Times.5 Signatories included Stanford's Margaret Jean Radin, Mark Kelman, and William Cohen; Columbia's George Fletcher; Yale's Robert Gordon; NYU's Derrick Bell; the University of Michigan's Terrance Sandalow; and the University of Texas's Sanford Levinson, to mention just a few.6 In brief, their joint statement charged that: By stopping the vote count in Florida, the U.S. Supreme Court used its power to act as political partisans, not judges of a court of law... [T]he conservative justices moved to avoid the "threat" that Americans might learn that in the recount, Gore got more votes than Bush .... But it is not the job of the courts to polish the image of legitimacy of the Bush presidency by preventing disturbing facts from being confirmed. Suppressing the facts to make the Bush government seem more legitimate is the job of not judges.7 propagandists, Elaborating on her views in the Yale University Press book, Bush v. Gore: The Question of Legitimacy, Professor Radin pulled no punches: [I]nstead of deciding the case in accordance with preexisting legal principles, ... five Republican members of the Court decided the case in a way that is recognizably nothing more than a naked expression of these justices' preference for the Republican Party.... [T]he Republican justices' "analysis" doesn't pass the laugh test, particularly their decisions to stop the vote count and to forbid the Florida Supreme Court from addressing the constitutional problems the federal Supreme Court purported to find.... How many readers can say with a straight face that if the case had been Gore v. Bush-that is, if all facts were the same except that Florida was controlled by Democratic officials, Gore were a few hundred votes ahead in the count, and Gore brought a federal case to stop a recount Bush had sought under state law-it would have come out the same? ... We cannot now afford, I think, to pretend that we 5. 554 Law ProfessorsS ay, N.Y. TIMES, Jan. 13, 2001, at A7. 6. Id. 7. Id. (capitalization altered). 948 FLORIDA LA W RE VIEW [Vol. 61 see the rule of law when we know that we are seeing the opposite. That is why I refer here to Republican justices rather than simply justices; they have forfeited the presumption of impartiality that goes with the judicial role.8 Several other distinguished contributors to The Question of Legitimacy volume leveled similar accusations of lawlessness against the United States Supreme Court. Professor Jed Rubenfeld proclaimed that Bush v. Gore was, "as a legal matter, utterly indefensible.... There was no December 12 deadline. The majority made it up. On this pretense, the presidential election was determined."9 On Rubenfeld's view, the "illegality," "breathtaking indefensibility," and "wrongness" of the Justices' action reflected a complete lack of judicial principle thereby making Bush v. Gore "worse even than the notorious Plessy.Id Professor Jack Balkin opened his essay as follows: "On December 12, 2000, the Supreme Court of the United States illegally stopped the presidential election and handed the presidency to George W. Bush."" Professor Bruce Ackerman offered a similarly harsh assessment: I... protest[] in the name of the rule of law. ...T o demand equal protection but to prevent Florida from satisfying this demand-this is not bad legal judgment; this is sheer willfulness. The Court's defense-that no time remained for Florida to meet the state's own December 12 deadline-is simply preposterous. Florida law contains no such "deadline." Every lawyer knows that the Supreme Court should have sent the case back to the Florida courts... And the court gave no legally valid reason for this act of usurpation. 12 So much for the scholars on one side of the debate. Now, hear the voices of scholars who saw the Florida Supreme Court as the lawless villain in the drama. Professor Richard Epstein condemned the Florida 8. Margaret Jane Radin, Can the Rule of Law Survive Bush v. Gore?, in LEGITIMACY, supra note 2, at 114-15, 117, 122. 9. Jed Rubenfeld, Not as Bad as Plessy. Worse, in LEGITIMACY, supra note 2, at 20, 26. 10. Id.a t 20-21. 11. Jack M. Balkin, Legitimacy and the 2000 Election, in LEGITIMACY, supra note 2, at 210 (emphasis added). 12. Bruce Ackerman, Off Balance, in LEGITIMACY, supra note 2, at 195-96. DUNWODY DISTINGUISHED LECTURE IN LAW Supreme Court for its "manifest errors" and its "abuse of discretion for partisan political ends."'13 Then-Professor Michael McConnell was even blunter: In the Florida Supreme Court, which [was] composed entirely of Democratic appointees, Gore's lawyers found a... sympathetic ear. On grounds that seemed dubious at best and disingenuous at worst, the Florida court ruled each time in favor of Gore.... [The Florida Supreme Court] disregarded the plain language of the [Florida election] statute and substituted a new deadline entirely of its own making. This was obviously not "interpretation." From its denunciation of "hyper-technical reliance upon statutory provisions" to its fabrication of new deadlines out of whole cloth, the court demonstrated that it would not be bound by the legislature's handiwork. 14 Professor Charles Fried-himself a former member of the Massachusetts Supreme Judicial Court and former United States Solicitor General-was more pointed still.'5 He began his essay by quoting an "expla[nation of] Florida politics"'6 offered by the fictional gangster Johnny Rocco in the 1948 movie, Key Largo: You hick! ...I take a nobody, see?... Get his name in the papers and pay for his campaign expenses.... Get my boys to bring the voters out. And then count the votes over and over again till they added up right and he was elected.1 7 Having set the stage with this unsubtle suggestion of fraud and chicane in the Sunshine State, Fried proceeded to flay the Florida Supreme Court for its "clear act of insubordination"' to the U.S. Supreme Court's Bush v. Palm Beach County CanvassingB oard (Bush 1) decision, 9 the Rehnquist Court's first foray into the Florida 2000 litigation. In Bush I, the U.S. Supreme Court 13. Richard A. Epstein, "In such Manner as the Legislature Thereof May Direct": The Outcome in Bush v Gore Defended, in THE VOTE, supra note 2, at 36. 14. Michael W. McConnell, Two-and-a-HalfC heersf or Bush v Gore, in THE VOTE, supra note 2, at 101, 108-09. 15. Charles Fried, An UnreasonableR eaction to a Reasonable Decision, in LEGITIMACY, supra note 2, at 3. 16. Id. 17. Id. (emphasis altered). 18. Id. at 9. 19. 531 U.S. 70 (2000) (per curiam). FLORIDA LAW REVIEW [Vol. 61 had unanimously vacated [a prior] judgment of the Florida Supreme Court and asked the Florida court to clarify the basis for it. The Florida court... had disregarded the Supreme Court's mandate, and without even adverting to it, had given important effect to its own previous, now vacated, decision.... [Thus, the] Florida court, in a dispute that touched the whole nation, acted in a strangely irregular way[] ... [that] gave rise to a reasonable concern that this was partisan manipulation. (As the Bush people put it: Keep on counting until Gore wins.)20 And if readers somehow missed the connection between this "keep on counting" barb and his opening punch line from the Key Largo gangster, Fried ended with a bang, intimating in his closing paragraph that Bush v. Gore was a case in which "a state court had been caught trying to steal the election."2' With the lines of scholarly debate now in plain view, let us take a step back. If, correctly or incorrectly, the Rehnquist Court believed that the Florida Supreme Court was indeed acting in bad faith, then perhaps this belief could explain why the U.S. Supremes felt they had to stop the recount altogether, rather than remand once again to judges whom they had come to view as judicial cheats. Perhaps the U.S. Justices might even have felt themselves justified in bending the law-if only to equitably straighten out the twists that they believed had been improperly introduced by the Florida justices. Indeed, as Professor David Strauss has shown in a splendid essay, many things both large and small that the Rehnquist Court did in the Bush v. Gore litigation make the most sense if the U.S. Justices had in fact believed that they were dealing with a lawless, partisan state bench trying to steal the presidency for its preferred candidate.22 Suspicion arose in part because in overseeing the recount, the Florida Supreme Court seemed to have gone well beyond the words of the Florida election statute. Suspicion also arose because the Florida justices were presiding over a recount with uneven standards for counting disputed ballots. We will come soon enough to the issue of unevenness and inequality. For now, let's concentrate on the claim that the Florida 20. Fried, supra note 15, at 8-10. 21. Id. at 19 (claiming that the "mirror image" of the actual Bush v. Gore would have been a case in which "a state court had been caught trying to steal the election for George Bush," thus implying that in Bush v. Gore itself, the Florida Supreme Court was caught trying to steal the election for Al Gore). 22. David A. Strauss, Bush v Gore: What Were They Thinking?, in THE VOTE, supra note 2, at 185. DUNWODYDISTINGUISHED LECTURE IN LAW justices were clearly wrong or perhaps even lawlessly partisan because they did not hew strictly to the letter of the Florida Election Code. In his concurring opinion in Bush v. Gore, Chief Justice Rehnquist, joined by Justices Scalia and Thomas,23 declared that by straying from the text of the election law adopted by the Florida Legislature, the Florida Supreme Court had violated the federal Constitution's Article II, Section 1, Clause 2, which provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," presidential electors. For these three Justices-and for many subsequent scholarly defenders of the U.S. Supreme Court's ultimate decision in Bush v. Gore, such as Professors Epstein, McConnell, and Fried-the key word here is legislature. The U.S. Constitution says that the state legislature gets to make the rules about how presidential electors are to be chosen. And, the argument runs, if the state judiciary disregards those rules, the federal Constitution itself authorizes federal judges to step in to protect the state legislature's federally guaranteed role. The Article II issue first arose in Palm Beach County Canvassing Board v. Harris2,4 an earlier round of the recount litigation. In a unanimous decision handed down in late November 2000, the Florida Supreme Court openly referred to its decades-long tradition of construing the Florida election statute in light of the Florida Constitution. 25 In particular, the Florida justices stressed the right to vote as expressed in the Florida Constitution's Declaration of Rights: Because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens' right to vote[.] ...C ourts must not lose sight of the fundamental purpose of election laws: The laws are intended to facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy. Technical statutory requirements must not be exalted over the substance of this right.26 For this reason, the Florida Supreme Court declared that the Florida Election Code for presidential elections was valid only if the code provisions "impose no 'unreasonable or unnecessary restraints' on the 23. Bush v. Gore, 531 U.S. 98, 112-13, 122 (2000) (Rehnquist, C.J., concurring). 24. 772 So. 2d 1220 (Fla. 2000). 25. Id.a t 1227-28 ("Twenty-five years ago, this Court commented that the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases .... 'By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right"--a right guaranteed by "'[olur federal and state constitutions."' (quoting Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975))). 26. Id. at 1237 (footnotes omitted). FLORIDA LAWREVIEW [Vol. 61 right of suffrage[]" guaranteed by the state constitution.2 7 On December 4, 2000, in Bush I, the Rehnquist Court unanimously vacated the Florida Supreme Court's Palm Beach ruling. 28 The Bush I Court's short per curiam opinion hinted that the Florida justices may well have violated the federal Constitution's Article II by using the Florida state constitution to limit the Florida state legislature-the body that, as we have seen, is broadly empowered by Article II to prescribe rules for 29 presidential elections. On remand, the Florida Supreme Court failed to explain clearly why, notwithstanding Article II's broad grant of power to the Florida Legislature, the Florida judiciary nevertheless had understood itself to be authorized to use the state constitution to cabin, modify, disregard, and supplement various parts of the election code adopted by the state legislature.30 Whereas the initial Palm Beach ruling had been unanimous, the Florida Supreme Court on December 8, 2000, split four to three, and its chief justice, Charles Wells, dissented in an opinion that worried aloud about the Article II issue.31 Although the Florida Supreme Court supplemented its splintered decision three days later with yet another opinion-this one commanding the votes of six out of seven justices 32-it was too little too late. The U.S. Supreme Court had already granted review of the earlier decision and had stayed the recount 33 pending its review. As we have seen, Professor Fried pointed an accusatory finger at the Florida justices for their failure to address the U.S. Supreme Court's concerns in Bush I about whether, and how, the Florida Constitution could limit the Florida Legislature in the face of Article II's seemingly plenary empowerment of the state legislature.34 For Fried, the Florida justices' actions were insubordinate to the U.S. Supreme Court, to Article II, and to the Florida Legislature.35 Professors Epstein and McConnell likewise highlighted the Florida Supreme Court's seeming violation of Article II and usurpation of the Florida Legislature's role 27. Id. at 1236 (quoting Treiman v. Malmquist, 342 So. 2d 972, 975 (Fla. 1977)). 28. Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 78 (2000) (per curiam). 29. Id. at 75-78. 30. For one promising passage that began to lay the foundation of such an explanation, but failed to drive home the source and the breadth of the state judiciary's authority to forcefully deploy the state constitution in presidential elections, see Gore v. Harris, 772 So. 2d 1243, 1253-54 & n. II (Fla. 2000). 31. Gore, 772 So. 2d at 1268 (Wells, C.J., dissenting). 32. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (Fla. 2000). Chief Justice Wells dissented. Id. at 1292 (Wells, C.J., dissenting). 33. Bush v. Gore, 531 U.S. 1046 (2000). 34. See Fried, supra note 15, at 3, 8-10, 19. 35. Id. at 9. DUNWODYDISTINGUISHEDL ECTURE IN LAW under that federal constitutional provision.36 (Indeed, Epstein disclaimed reliance on equal protection arguments against the Florida justices, preferring an Article II argument that inspired the very title of his essay-"in such Manner as the Legislature Thereof May Direct": The Outcome in Bush v Gore Defended.) After the Bush I remand, it was a momentous mistake for the Florida Supreme Court to have issued a decision that neglected to address the Article II issue in detail. But this neglect was not necessarily the product of intentional insubordination to the U.S. Supreme Court. The clock was ticking down fast, and the Florida justices had many issues to deal with 37 all at once. And here is the key point: Despite their failure to address the issue squarely, the Florida justices acted in perfect harmony with Article II, rightly understood, when they relied on the Florida Constitution to go behind and beyond the words of the Florida Legislature's Election Code. The very structure of that code deputized the Florida judiciary to construe and implement the code's myriad provisions in a manner that would strictly conform to the grand voting-rights principles of the Florida Constitution. Had the Florida Supreme Court been clearer on this pivotal issue, either in the initial Palm Beach case or on remand, the basic error of the Article II assault on the Florida judiciary would have been clear for all to see. Once we understand the proper role of the Florida Constitution in the Bush litigation, the arguments of Chief Justice Rehnquist and Justices Scalia and Thomas, and of Professors Epstein, McConnell, and Fried do not just dissolve. They boomerang. Here is what the Florida Supreme Court should have said: Just as Article II of the U.S. Constitution empowers the Florida Legislature to direct the process of selecting presidential electors, Article II of course also allows the Florida Legislature, if it chooses, to cabin its own power in light of our state constitution, and to delegate the last word to resolve and manage disputed presidential elections in Florida to the Florida judiciary. We hereby hold that the Florida Legislature has done just that by deputizing us, the Florida judiciary, to construe the Florida statutes and regulations regarding presidential elections against the backdrop of the Florida Constitution. Indeed, the Florida legislature has empowered us, the Florida judiciary, to equitably adjust and modify the sometimes hypertechnical and confusing maze of election regulations and code provisions so as to bring the letter of election law into 36. Epstein, supra note 13, at 19-37; McConnell, supra note 14, at 103-05, 108-09. 37. See Gore, 772 So. 2d at 1279 n.2 (explaining the time crunch).