Bush v. Gore Blues

Abstract:     
An odd silence hangs over public life. . . . We really need to talk about Bush v. Gore. There has been a familiar tendency to hurl accusations of deviance from legal norms without specifying or concretely substantiating the norms. If it's a contradiction for the conservative justices to all-of-the-sudden favor federally imposed equality requirements over states' rights, it's also a contradiction for liberals to favor states' rights over federally imposed equality requirements. In any event, the Bush campaign adopted a strategy of opposition to hand recounts based on grounds and arguments they most likely didn't believe in and never before made against the common recount procedure, knowing that the more effective the hand recounts, the more likely that the true, intended vote tally would be recognized and Bush would lose. They also had to realize that the only real chance for this strategy to be successful lay in five conservative votes at the Supreme Court, five justices willing to grant unusual stays, to straightjacket the Florida Supreme Court, to break new ground by extending equal protection law with only Warren court decisions of the 1960s they had repudiated for support, and to refuse to apply the new ground to anything other than the election of 2000. Voting standards should be specific and uniform and each vote should receive equal weight, but the campaign of George Bush should not be the only occasion for application of these principles. The various Florida voting systems, the Electoral College, even the Senate should be similarly scrutinized. These principles - if applied, as the rule of law seems to demand, to everyone - might lead to proportional representation systems which almost all of the democratic world has adopted over our winner-take-all plurality system. The most pernicious passage of Bush v. Gore, perhaps of modern constitutional law, was that the ruling is limited to the present circumstances.

Number of Pages in PDF File: 13

Keywords: Bush v. Gore, rule of law, constitutional law

Accepted Paper Series