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									                                         U.S. SUPREME COURT REVIEW

                                         v Gore
                            By Leonard M. Niehoff

                                            his column will attempt to ad-      Dade.) A dispute arose about the deadline by votes. The next day, Vice-President Gore
                                            dress the United States Supreme     which the local canvassing boards had to filed a complaint in Florida state court con-
                                            Court’s decision in Bush v Gore     submit their returns to the Florida Secretary testing the certification. The Florida trial
                                            without dissolving into a politi-   of State. The secretary maintained that there court heard and rejected the claim, and the
                            cal harangue.1 This may, of course, prove im-       was a statutory deadline of November 14, Florida Court of Appeals certified the matter
                            possible. Indeed, the attempt brings to mind        which she declined to waive. Vice-President to the Florida Supreme Court.
                            Samuel Johnson’s description of a dog walk-         Gore sought emergency relief from the             On December 8, 2000, the Florida Su-
                            ing on its hind legs: ‘‘we do not expect to see     Florida Supreme Court, which set a Novem- preme Court issued a decision affirming
                            it done well; we are just surprised to see it       ber 26 deadline for                                                    in part and revers-
                            tried at all.’’                                     returns.                                                               ing in part the trial
                                Let’s start with a quick refresher of the           At this point we                                                   court’s decision.
                            events that brought the case to the Supreme         have to take a brief                                                   The decision in-
                            Court. Those events had, and still have, a          detour to follow the
                                                                                                            …it seemed as if the election              cluded three sig-
                            hazy surrealism to them. In one sense, it           trail of this decision       would never end, and as if                nificant holdings:
                            seemed as if the election would never end,          of the Florida Su-                                                         (1) The Florida
                            and as if history were dragging its heels. In       preme Court. Gov-         history were dragging it’s heels.            Supreme Court or-
                            another sense, it seemed as if important new        ernor Bush sought                                                      dered Miami-Dade
                            developments rushed in upon us every few            review of this deci-                                                   County to manu-
                            minutes, and as if history had taken off in a       sion by the United                                                     ally recount 9,000
JUNE 2001

                            full sprint. Several months of hindsight may        States Supreme Court, which on December ballots that the machines had registered as
                            help bring this blurry picture into focus.          4, 2000 found ‘‘considerable uncertainty as undervotes.3
                                On November 7, 2000, our country con-           to the grounds on which it was based’’ and        (2) As a result of manual recounts, Palm
                            ducted its popular election for President of        vacated it. On December 11, the Florida Su- Beach had identified a net gain of 215 votes
                            the United States. It is tempting to describe       preme Court issued a decision on remand for Vice-President Gore. The Florida Su-
                            the outcome as follows: 49 states participated,     that offered some additional explanation and preme Court ordered these included in the
                            and Florida abstained. The next day, the            reinstated the November 26 date.               certified results. Miami-Dade, which had
                            Florida Division of Election reported a mar-            In this first appeal, Governor Bush in- started but then halted a manual recount,

                            gin of 1,784 votes favoring George W. Bush.         cluded among his arguments a claim that a had identified a net gain of 168 votes for
                            Because the margin of victory was less than         partial recount in only four counties violated Vice-President Gore. The Florida Supreme

                            one-half of one percent of the votes cast,          the equal protection clause of the fourteenth Court ordered these included in the certified
                            Florida law required an automatic machine           amendment by weighing some votes more results as well, subject to completion of the
                            recount. The machine recount showed Gov-            heavily than others, but the Supreme Court manual recount in Miami-Dade.
                            ernor Bush still winning, though by a nar-          did not grant certiorari based on this argu-      (3) The Florida Supreme Court ordered
                            rower margin.                                       ment. Many observers interpreted this as a that manual recounts should begin immedi-
                                Vice-President Gore asked for manual re-        sign that the Court did not think much of ately in all Florida counties where undervotes

                            counts in four counties pursuant to Florida         an equal protection argument in this con- had not been so counted.
                            election law. (Those four counties were Vo-         text. This would, of course, turn out to be a     Governor Bush sought an emergency ap-
                            lusia, Broward, Palm Beach, and Miami-              misinterpretation.2 But back to the principal plication for a stay from the United States

                                                                                sequence of events.                            Supreme Court. On December 9, 2000, the
                                                                                    On November 26, 2000, the Florida Elec- Court issued a stay, treated the application
                               This column addresses proceedings before the     tions Canvassing Commission certified the as a petition for certiorari, and granted cer-
                            United States Supreme Court that are of interest
                                                                                results of the election and declared George tiorari. One of the attorneys involved later
                            to Michigan Bar Journal readers.
                                                                                W. Bush the winner of the state’s 25 electoral suggested that the case was over before the

oral argument even took place, contending                Second, the Court noted that ‘‘[t]he want        rejecting—a state Supreme Court interpreta-

                                                                                                                                                               U.S. SUPREME COURT REVIEW
that ‘‘Bush won the case on CNN, when                of those rules has led to unequal evaluation of      tion of state law. Second, although they ac-
there were all those pictures of the weird bal-      ballots in various respects.’’ In this connection,   knowledged that the circumstances raised
lot recounting. Believe it or not, Justices          the Court raised a number of issues. For ex-         some fairness concerns, they pointed out that
watch CNN.’’4                                        ample, they pointed out that standards could         ‘‘we live in an imperfect world’’ and that
    Perhaps there is something to this. Chief        vary from county to county and even from             there was no reason to find the ‘‘intent of the
Justice William Rehnquist himself once               team to team, they cited some record exam-           voter’’ standard any more troublesome than
wrote: ‘‘I was recently asked . . . whether the      ples of differing treatment between counties,        many other standards routinely employed in
justices were able to isolate themselves from        and they noted that the recount order ad-            important cases, such as the ‘‘beyond a rea-
the tide of public opinion. My answer was            dressed undervotes but not overvotes.                sonable doubt’’ standard. Third, they noted
that we are not able to do so, and it would              Finally, the Court observed that Florida         that, even if differing applications of the
probably be unwise to try. We read news-             law required electoral contests to be com-           standard did emerge, equal protection was
papers and magazines, we watch news on               pleted by December 12 and held: ‘‘That date          assured because a single impartial magistrate
television, we talk to our friends about cur-        is upon us, and there is no recount procedure        would ultimately adjudicate any objections.
rent events.’’5                                      in place under the state Supreme Court’s             Finally, they concluded that, even if the ma-
    On December 11, 2000 the Supreme                 order that comports with minimal constitu-           jority were correct in every respect, the Court
Court heard oral argument, and the next day          tional standards.’’ The Court continued that         should have adopted a different remedy, re-
the Court issued its decision. The Court                                   ‘‘[b]ecause it is evident      manding the case to allow for the establish-
spoke through a per curiam opinion, which                                           that any recount      ment of specific standards and to allow the
reversed the decision of the Florida Supreme                                                              recount to continue. In this connection, the
Court. A concurring opinion was filed                                                                                        dissenters could not resist
by Chief Justice Rehnquist (joined                                                                                        pointing out a certain irony:
by Justices Scalia and Thomas), and                                                                                  ‘‘Time is short in part because of
dissenting opinions were filed by                                                                                                    the Court’s entry of a
Justices Stevens, Ginsburg, Breyer,                                                                                                    stay on December 9,
and Souter. Reports have identi-                                                                                                         several hours af-
fied Justice Kennedy as the pri-                                                                                                         ter an able circuit
mary author of the per curiam                                                                                                       judge in Leon County
opinion.6                                                                                                                     had begun to superintend

                                                                                                                                                               JUNE 2001
    In summary, the Court found                                                                                           the recount process.’’
fault with the directive that man-                                                                                      The dissenting opinions include
ual recounts proceed to                                                                                         some strong words. Justice Stevens’ dis-
discern the ‘‘intent of the                                                                                           sent, for example, concluded by
voters’’ whose choice for                                                                                                       lamenting the ‘‘wound’’
President had not been                                                                                                          that the majority’s deci-
identified by the machines.                                                                                                      sion had inflicted on the
The Court noted that the ‘‘in-                                                                                           nation’s ‘‘confidence in the men

tent of the voter’’ is ‘‘unobjec-                                                                                         and women who administer the
tionable as an abstract propo-                                                                                           judicial system.’’ Nor has Justice

sition and a starting principle.                                                                                        Stevens been the last to decry
The problem inheres in the absence of spe-                                                                      the Court’s decision.
cific standards to ensure its equal applica-                                                                      The majority decision has found some
tion.’’ The Court listed a number of consid-                                                                 defenders, such as Columbia University
erations in support of this concern.                 seeking                                              law professor Samuel Issacharoff, who has de-
    First, the Court noted that this situation       to meet the                                          scribed it as signaling ‘‘a reinvigoration of the
lent itself to ‘‘specific rules designed to ensure   December 12 date will be unconstitutional            fundamental rights doctrine in the area of

uniform treatment,’’ because ‘‘[t]he factfinder      for the reasons we have discussed, we reverse        voting, [which] could be very positive.’’ But,
confronts a thing, not a person.’’ The Court         the judgment of the Supreme Court of Flor-           on the whole, the decision has had a chilly

pointed out that ‘‘the question is not whether       ida ordering a recount to proceed.’’                 reception. This is true not only among critics
to believe a witness but how to interpret the           The dissenting justices raised a number of        of the Court, such as former clerk Edward
marks or holes or scratches on an inanimate          points in response.7 First, the dissenters ob-       Lazarus, who called the decision ‘‘an act of
object . . .’’ Thus, to expect specific rules was    served that the Court had taken an extraordi-        rank hypocrisy,’’ but also among some who
not to expect the impossible.                        nary step by undertaking to review—and by            are generally supportive of the Court, such as


                            University of Chicago law professor Cass           that attorneys play in our democracy.10 Mc-        in a political fray (it does that occasionally),
                            Sunstein, who called the decision ‘‘a real em-     Collam notes that, ‘‘[e]ven when the fight         or that the Court divided five-to-four along
                            barrassment’’ and one of the Court’s ‘‘worst       was at its most contentious, the lawyers main-     ideological lines (it does that commonly), or
                            moment[s]’’ in years.8                             tained a level of decorum sadly absent in          that the Court left the rest of us scratching
                                Commentators have also divided over            most of the discourse surrounding the elec-        our heads (it does that frequently). The re-
                            whether the decision will have any signifi-        tion.’’ He observes that this is in part because   markable thing about Bush v Gore is the oc-
                            cance as precedent. Thus, Harvard law pro-         lawyers must conform to a code of profes-          casion it afforded the public to see lawyers as
                            fessor Randall Kennedy has said that the de-       sional conduct and adds: ‘‘Nonlawyers and          civil professionals who can speak brilliantly
                            cision ‘‘certainly opens up a new avenue of        worldly-wise poseurs laugh off this notion as      but plainly, who can argue vigorously but re-
                            litigation about voting, or at least it poten-     quaint. Most of the lawyers I know don’t.          spectfully, and who can tell the difference be-
                            tially does.’’ McGeorge Law School professor       They’ll make the best arguments they can . . .     tween a fine point and a lie. That is a prece-
                            J. Clark Kelso has wryly countered that the        but they won’t cross the ethical line. Would       dent worth following. o
                            decision ‘‘probably won’t have much effect         that the nation’s pundits and political leaders
                            on the law other than in a case involving a        could make the same claim.’’
                            manual recount of punch card ballots in a             McCollam concludes by quoting from                                         Leonard M. Niehoff is a
                            presidential election.’’9 The Republic proba-      de Tocqueville, who in the nineteenth cen-                                    shareholder practicing out
                            bly ought not to test the precedent too often.     tury wrote: ‘‘The authority Americans have                                    of the Ann Arbor office
                            As the old joke goes, jumping off a building       entrusted to members of the legal profes-                                     of Butzel Long. He has
                                                                                                                                                             served as an adjunct fac-
                            and surviving is a miracle if you do it once; if   sion, and the influence that these individ-
                                                                                                                                                             ulty member at the Uni-
                            you do it more than once, it’s just another        uals exercise in the government, are the                                      versity of Detroit-Mercy,
                            bad habit.                                         most powerful existing security against the                                   and Wayne State Univer-
                                A recent editorial by Douglas McCollam         excesses of democracy.’’ McCollam adds:                                       sity Law School.
                            in The American Lawyer maintains that,             ‘‘Then, as now.’’
                            whatever else one might think about Bush v            Indeed, the remarkable thing about Bush
                            Gore, the case spotlighted the special role        v Gore is not that the Court enmeshed itself       FOOTNOTES
                                                                                                                                   1. Portions of this column are taken from remarks
                                                                                                                                      made by the author before a meeting in February
                                                                                                                                      of this year of the Eastern District chapter of the
                                                                                                                                      Federal Bar Association.
                                                                                                                                   2. In retrospect, it now seems clear that the Court
JUNE 2001

                                                                                                                                      decided not to grant certiorari on this issue be-
                                                                                                                                      cause it was still pending before a federal appeals
                                                                                                                                      court in a companion case and therefore was not
                                                                                                                                      yet ripe for Supreme Court review.
                                                                                                                                   3. An ‘‘undervote’’ occurs when the machine does
                                                                                                                                      not register a vote for President. An ‘‘overvote’’
                                                                                                                                      occurs when the machine registers more than one
                                                                                                                                      vote for President.
                                                                                                                                   4. Quoted in Tony Mauro, ‘‘In Search of a Swing,’’

                                                                                                                                      The American Lawyer (January, 2001) at 75.
                                                                                                                                   5. William H. Rehnquist, The Supreme Court: How
                                                                                                                                      it Was, How it Is (1987) at 98. In this connection
                                                                                                                                      see also ‘‘The Truth Behind the Pillars,’’ News-

                                                                                                                                      week (December 25, 2000), which includes a gos-
                                                                                                                                      sipy report of Justice O’Connor’s attendance at
                                                                                                                                      an election-night party and her disgusted reaction
                                                                                                                                      upon hearing CBS anchor Dan Rather call Flor-
                                                                                                                                      ida for Al Gore.
                                                                                                                                   6. See Jeffrey Rosen, ‘‘In Lieu of Manners,’’ The New
                                                                                                                                      York Times Magazine (February 4, 2001) at 50.

                                                                                                                                   7. These points are collapsed into one discussion
                                                                                                                                      for purposes of efficiency. Not all of the dissent-
                                                                                                                                      ing justices expressed agreement with all of these

                                                                                                                                   8. All of the quotations in this paragraph are taken
                                                                                                                                      from David G. Savage, ‘‘The Vote Case Fallout,’’
                                                                                                                                      ABA Journal (February 2001) at 32.
                                                                                                                                   9. Id.
                                                                                                                                  10. Douglas McCollam, ‘‘Taming the Political Ani-
                                                                                                                                      mal,’’ The American Lawyer (January 2001).


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