7. THE UNBEARABLE RIGHTNESS OF BUSH V. GORE

Abstract

Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles. Nor did the Supreme Court err in its response to this constitutional violation. Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court. The Supreme Court's majority opinion has been subjected to a barrage of political criticisms of a kind that might more fittingly be directed against a Senate Majority Leader or a Secretary of State. Ironically, it is precisely because the Justices correctly applied the law that they have been accused of having partisan motives.