74 Pages Posted: 21 Sep 2001
Bush v. Gore marked the first time in the history of democratic government that an unelected judicial organ chose a head of state by preventing the counting of votes. The majority was oblivious to the democratic character of our Constitution in every aspect of its analysis. Its very starting point - the asserted authority of the states to disenfranchise voters altogether from participation in the selection of presidential electors - cannot be sustained in the face of the text and history of the Fourteenth Amendment, nearly universal practice since 1868, and the conspicuous trajectory of our constitutional development toward more democracy. Specifically, state legislative authority to exclude citizens altogether from the choice of presidential electors cannot be reconciled with the provision in Section Two that reduces a state's representation base in Congress to the extent the state disenfranchises its adult male population in such elections.
The majority's only recourse to the Fourteenth Amendment is an equal protection analysis that is nearly fatuous. By contrast, the majority ignores the importance of procedural due process in elections as an essential bulwark of democracy. Vote tabulation is a species of administrative adjudication, and voters should be deemed minimally entitled under the Fourteenth Amendment to voting tabulation systems rationally calculated to ascertain their intent accurately. A due process analysis of the Florida election supports the conclusion that hand recounts in challenged counties should have been deemed a constitutional prerequisite to the casting of Florida's electoral votes. There was no legal or practical impediment to conducting a statewide recount consistent with the Fourteenth Amendment, and, compared to the Court's assault on due process, the equal protection issue raised by the majority and accepted as non-trivial by Justices Souter and Breyer, pales as insubstantial.
But the most compelling demand of democratic principle in Bush v. Gore may well have been that the Court defer to Congress, as an elected federal institution, for the resolution of a wholly political contest. Both the textual and the institutional arguments for deferring to Congress would have been stronger in Bush v. Gore than they were in Nixon v. United States, in which Chief Justice Rehnquist, writing for himself and for Justices Stevens, Scalia, Kennedy, O'Connor and Thomas, held it to be a political question whether the Senate was constitutionally required to hold a full evidentiary hearing before the entire Senate in order to convict and remove an impeached judge. The abandonment by the Bush v. Gore majority of this, as well as other jurisprudential commitments, helped to create the distressing impression that five Justices were determined to ordain a Bush victory, regardless of the legal merits. It is a measure of the Court's imprudence in deciding Bush v. Gore both that such a possibility cannot be dismissed out of hand and that the Court could have responsibly deferred to Congress as the more accountable and constitutionally appropriate decision-making institution to resolve the Florida controversy.
Keywords: Bush v. Gore, Supreme Court, electoral college, presidential election, due process, equal protection, Fourteenth Amendment, judicial review, democracy, constitutional interpretation
Suggested Citation: Suggested Citation
Shane, Peter M., Disappearing Democracy: How Bush v. Gore Undermined the Federal Right to Vote for Presidential Electors. Florida State University Law Review. Available at SSRN: https://ssrn.com/abstract=278283 or http://dx.doi.org/10.2139/ssrn.278283