Mar 21, 2009

The Return of Bush v. Gore

[[Warning: Long, involved post]]

You thought it was over. You thought that Bush v. Gore had been relegated to the history books.

Well, I'm sorry folks. It looks like it may once again rear its ugly head in a far less publicized (and, for that matter, far less important) manner.

Remember way back when George W. Bush was president and those two guys, Barack Obama and--what's his name--oh, right--John McCain were running for something? You may not recall, but at the same time, some senator named Norm Coleman was trying to stop comedian-turned-politician Al Franken from taking his seat. On election day, Coleman was ahead by roughly 200 votes.

Then happened the recount (*exasperated sigh*). Franken ended the recount ahead by 225 votes. (Quick aside: does anyone else have very, very little faith anymore in our ability to accurately count votes? I mean, I guess only screwing up 400-something votes out of a few million cast isn't that bad, but still...that tiny difference can alter U.S. history, e.g. this entire post)

Now, Minnesota law says that no certificate of election shall "be issued until a court of proper jurisdiction has finally determined the contest" (Minnesota Statutes §204C.40 Subd. 2 (1999)). That means Minnesota won't have a senator until a court determines a winner. It is silent about appeals, but the state is seemingly interpreting the statute broadly to say that until the final possibility of appeal is exhausted, there won't be any issuance.

So here we are, in March, and Minnesota still has but one senator. Coleman and Franken are in a protracted legal fight. Republicans are encouraging Coleman to go to the Supreme Court (assuming, of course, that they grant certiorari). First, he'd have to go through the Minnesota Supreme Court, though.

Coleman's lawyers are indicating that they would try to use Bush v. Gore as the crux of their argument. This raises a few interesting questions:

  1. Can the Supreme Court determine, through the wording of an opinion (not from a different, overriding case), that a certain legal question, once decided, does not hold precedent, even though a majority settled that matter of law within said opinion? (This is a fancy way of asking: Does Bush v. Gore have precedential value?)
  2. Assuming precedent does exist, do the issues in the Minnesota recount amount to a similar enough violation of equal protection to make Bush v. Gore apply in this case too?
  3. Assuming that it is an equal protection violation, what is the remedy?

I'm going to start with the first question.


Many people don't realize this, but the substantive legal decision in Bush v. Gore wasn't even close--the justices decided in a 7-2 majority that the recount violated the equal protection clause of the 14th Amendment. The reasoning was simply that: different precincts in Florida were counting votes with different standards, meaning that a vote considered valid in one place within the state may not be considered valid in another. This meant that different people's votes were given precedence over each other, violating equal protection. Follow me?

The political issue, decided by a 5-4 majority (and still controversial today), was that Florida didn't have time to correct its methodology before the electors were to meet on December 18, 2000. Therefore, the recount must be stopped and whoever was ahead at the time must be declared the winner. That was George W. Bush, so he effectively won the election.

Here's where it gets even more fun, though. You see, the justices in the majority were aware of the very specific and time-barred nature of this case. They say, in effect, that the case shouldn't have precedential value.

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

The principle of stare decisis (or, precedent) has a long and varied history, deriving from English common law (in which there is no 'constitution', per se, but only a body of previously decided legal cases that give succeeding jurists an outline from which to view disputes). However, a statement made by a justice in an opinion (obiter dicta), is not necessarily binding. The Ninth Circuit U.S. Court of Appeals determined that:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts. United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996)

The Supreme Court itself, in fact, determined in Central Green Co. v. United States, 531 U.S. 425 (2001), that "[obiter] dicta may be followed if sufficiently persuasive but are not binding."

That means that the statement by the justices that Bush v. Gore not have precedential value is not necessarily binding. In fact, it is only binding if the justices of the current Court say it is. However, the substantive decision--that different ballots counted differently violate equal protection--is binding.

Given that five of the seven who concurred with the majority opinion are still on the Court (Scalia, Kennedy, Souter, Thomas, and Ginsburg) and that the two who replaced the others (Roberts and Alito replacing Rehnquist and O'Connor, respectively) will likely decide in favor of upholding the precedent of Bush v. Gore, I would guess that they would grant its use as precedent.


In Bush v. Gore, the issue was with punch ballots and 'chads' (a word that, sadly, is now inscribed into the English lexicon forever). In Minnesota, the issues are a bit more convoluted. However, some are arguing that the substantive issue (votes being counted under different standards), is the same. There are many, many inconsistencies in the Minnesota recount. Do they amount to an equal protection violation? This is the meat of the case, and it will need to be decided by the justices.

There are other substantive issues that won't be able to use Bush v. Gore, like the fact that Hennepin County (Minneapolis's votes) ended the recount with 25 more votes than voters who signed in. Clearly, in a perfect world, those 25 votes shouldn't be counted; the question, though, is whether you even can determine which 25 they are. To me, issues like that are substantive enough to at least mandate reconsideration.


This question is less substantive, though nonetheless important. Assuming that the Court determines an equal protection violation, what is the remedy?

The controversy, as I mentioned earlier, with Bush v. Gore, was that the justices were split as to whether Florida had the time to correct the equal protection violation. The majority said no--mostly because having a president is so manifestly important for the nation--while the minority said yes. In this case, I would presume that the decision would be 9-0 in favor of allowing Minnesota to have another recount with a uniform standard for counting or in favor of a second election. The presidency is time-barred and necessary; Bill Clinton was going to leave office at noon on January 20, 2001 and there had to be a replacement. A senator is one in 100, and it is clearly unneccesary to have one now. I won't go so far to guess which way the Court would go--recount or revote--but it seems highly unlikely that they would order a cessation of counting as they did in Bush v. Gore.


All in all, Democrats are acting like Republicans are just playing politics. Well, I agree. They are playing politics. But, you know what? This is politics. I give little empathy to Democrats, since they would do the exact same thing. Oh, wait--they did. Having a fair election is a hallmark of our system. In this election, time is not an issue as it was in 2000, meaning that we can and should take the time to be sure of a correct outcome, even if that takes many months. The winner will still have five years left of a six year term.

It's interesting to see the roles reversed here; Democrat ahead, wanting recounts to stop and litigation to be put on hold, Republican behind, wanting recounts to continue and litigation to continue. Al Gore won the merits of Bush v. Gore, but he lost the presidency because of the time issue. Wouldn't it be just a shiv in the side of Democrats if the case they loathe the most came back and beat them again?

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