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Brief Reflections [Commentary]

Professor John Parry, University of Pittsburgh School of Law

I have been asked to provide some analysis of the briefs filed in Bush v. Palm Beach County Canvassing Board. Given time constraints and the limits of my expertise, I have decided primarily to give my impressions of the opening briefs filed by Bush and Gore and to invite responses and additional comments on these and the other filings in the case (replies, the supplemental brief, and the briefs of amici and other parties). I should note that I voted for Gore and sympathize with his arguments. While I make some attempts to be balanced, my reading of the briefs reflects my political views.

The first thing I noticed was a strong difference in tone. The Gore brief has an almost mild tone suggesting the reassuring reasoning of a wise observer who wants to sort everything out for the justices. I haven't read enough of Professor Tribe's briefs to know if this is his usual approach, but I found it effective. The Bush brief is much more aggressive. For example, the brief mentions in several places that the manual recounts are troubling because of the lack of uniform standards for discerning the will of the voter. The brief paints a picture of chaos and confusion and hints at improprieties. None of this, however, seems to be properly at issue in the Supreme Court (the Gore Supplemental Brief gets at this point). But even so, the discussion of these claims seems as much designed to alarm the justices and to make the case for the Supreme Court's duty not just to rule, but to settle the whole business once and for all.

Ordinarily I have no trouble with this kind of aggressive approach (and I don't mean to say that the Gore brief is not aggressive in the substance of its arguments). The tone of the Bush brief may have troubled me because of its interaction with the substantive arguments, some of which in my view are extreme. For example, the Bush brief refers to the Florida Supreme Court's rejection of "hypertechnical reliance upon statutory provisions," as if this alone is proof that the court made new law. The brief does not say that the court drew this approach from prior cases that is from the entire pre-existing election law statutes and interpretive caselaw of Florida. The brief then goes on to characterize the court's approach as one of simply jettisoning the election statutes entirely and using "equitable power" to write entirely new laws. But that is not what the court did. Instead to borrow the Gore brief's phrasing the court engaged in garden variety statutory interpretation for the bulk of its opinion. I don't know if the court's interpretations were correct, but nothing in the court's application of various maxims of statutory interpretation struck me as unusual. What did strike me in the court's opinion was the remedy section, where the court shifted gears and explicitly employed its equitable power to craft a remedy. Ultimately, I come out on the Gore side on this (as the Gore reply points out, the new court-created deadline can be seen as favoring Bush more than Gore), but I think it is a fair question whether the Florida court made new law in this part of its opinion. But the earlier parts of the opinion are not strikingly different from the kinds of statutory interpretations judges engage in every day all over the country.

Perhaps the underlying ordinariness of most of the opinion explains why the Bush brief proposes an extremely aggressive standard for determining new law. In a surprising move, the brief claims that the new law standard of Teague v. Lane which applies to federal court habeas review of state criminal convictions should constrain state courts hearing claims concerning the proper interpretation of state laws governing the selection of presidential electors. Not only does Teague have little to do with the task of statutory interpretation, but it is also intended to serve federalism interests by protecting the finality and integrity of state court decisions. Perhaps one could argue that the federalism argument runs the other way when the issue is presidential elections, but the choice of Teague seems forced and glaring to me.

My colleague Professor Arthur Hellman has suggested that contract clause caselaw could provide a better standard for the new law inquiry. Under this approach, the Supreme Court would "accord respectful consideration and great weight to the views" of the Florida Supreme Court but would retain the ultimate power to decide for itself whether the law changed. This approach leaves room for the familiar idea that judicial interpretation of statutes is a legitimate enterprise (and perhaps even foreseen by Congress under the plain language of 3 U.S.C. sec. 5). The problem is that the result is far less clear under such a standard than it would be under Teague v. Lane, and so the standard lacks the punch that the Bush team must have felt it needed. (And the Gore response, as discussed briefly below, is that there is no need for any standard, because there is no new law issue under 3 U.S.C. sec. 5.)

Thus far, I have been attacking the Bush brief, and I should at least try to be evenhanded. The Gore brief to my mind goes too far in its own characterization of the Florida court's opinion. True, most of what the court did was "garden variety" statutory interpretation, but the remedy section arguably strays out from the garden. Reading the Gore brief, one gets the impression that the court did nothing except interpret the statute, when in fact it made up a remedy based on its own conception of the policies that should govern the secretary's discretion and the interests of finality. Of course, just as with the Bush brief, this characterization sets up later arguments, in particular the very nice argument that the new law inquiry is a non-issue under 3 U.S.C. sec. 5.

Another not entirely successful aspect of the Gore brief is the effort to minimize the consequences of Florida's potential failure to comply with 3 U.S.C. sec. 5. The Gore brief argues that sec. 5 was designed merely to bind Congress to accept a state's electoral votes if the state follows pre-existing procedures for selecting electors an argument with good support in text and legislative history. Failure to comply with the statute thus requires little or no judicial intervention, because Congress will handle the situation by then deciding what to do. The Bush team argues plausibly that resort to Congress is not on balance a good thing. The Gore response is that leaving everything to Congress is no big deal. In some sense the Gore team is correct; there is a process in place for dealing with non-compliant states. But it is a process that is unfamiliar and inevitably nakedly partisan. I have not spoken to anyone who thinks a congressional decision about Florida's electors would be a good thing. Like presidential impeachment, it would be important and exciting but hardly desirable. Indeed, as the Bush brief argues, we might then find ourselves in a constitutional crisis. (Is there a settled definition of "constitutional crisis," or do we just know one when we see one?)

Rather than go on with additional impressions of the briefs, I want to stop with one additional comment and a conclusion. First, the comment: there is no need for me to discuss the Bush brief's Article II argument because it is manifestly without merit and is entirely demolished by the Gore brief. Second, the conclusion: Gore ought to win, but the Court should not decide the case at all if it cannot come close to unanimity.

November 30, 2000

John Parry teaches Constitutional Law at the University of Pittsburgh School of Law. He is a 1991 graduate of Harvard Law School. He welcomes comments on his column at