The Lawfulness of the Election Decision: A Reply to Professor Tribe

55 Pages Posted: 8 Jun 2004

See all articles by Peter Berkowitz

Peter Berkowitz

Villanova University - Charles Widger School of Law

Benjamin Wittes

Washington Post


By demonstrating the unreasonableness of Laurence Tribe's extended critique of Bush v. Gore, we bring into focus the reasonableness of the Supreme Court's decision. Contrary to Tribe's analysis of the "political question doctrine," we show that the Constitution did not "command the Court" to stay out of the election controversy and leave it for resolution by Florida and ultimately, if necessary, by Congress. We demonstrate that the Court's per curiam holding that the Florida recount violated the Equal Protection Clause of the 14th Amendment by impermissibly weighting citizens' votes differently is much closer to the Court's vote dilution jurisprudence than Tribe officially allows (but which he also eventually surreptitiously concedes), and that despite the surface differences that Tribe stresses, the Court's decision can be seen as a reasonable application or extension of its vote dilution precedents. We go on to show that when properly analyzed, the Florida Supreme Court's opinions, by departing substantially from the election code enacted by the Florida legislature and in place on November 7, 2000, can reasonably be seen, as Chief Justice Rehnquist's concurring opinion would have held, as violating Article II, section 1, of the Constitution which required the Florida court to apply and not rewrite Florida's election code. Then we identify three potentially lawful approaches to a resolution of the controversy other than the Court's and conclude that all present both advantages and disadvantages in relation to the Court's actual handling of the case. We conclude that the Court's decision in Bush v. Gore, while far from perfect and in some respects doctrinally incomplete, is less remarkable for these imperfections - given the difficult circumstances under which it was produced - than for its lawfulness and overall sufficiency.

Keywords: Constitutional Law, Bush v. Gore, political question doctrine, vote dilution, voting rights, equal protection, Artcicle II, Section 1, Florida recount

Suggested Citation

Berkowitz, Peter and Wittes, Benjamin, The Lawfulness of the Election Decision: A Reply to Professor Tribe. Available at SSRN:

Peter Berkowitz (Contact Author)

Villanova University - Charles Widger School of Law

299 N. Spring Mill Road
Villanova, PA 19085
United States

Benjamin Wittes

Washington Post ( email )

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