Bush v. Gore Could Happen Again Commentary
Bush v. Gore Could Happen Again
Edited by: Jeremiah Lee

JURIST Guest Columnist and constitutional law scholar Thomas E. Baker of Florida International University College of Law says that the US Supreme Court's 2000 ruling in Bush v. Gore is a precedent that could be repeated after the presidential election this fall.

Going into the presidential election with an uneasy feeling of deja vu reveals that the absolute worst thing about the Supreme Court's decision in Bush v. Gore is that it is stare decisis, or precedent. That means it could happen again.

Suppose that history repeats itself in a closely-divided popular vote in the November 2004 election—a hypothetical that has to be taken seriously, given recent polling numbers and the lengthy list of contested states. Suppose that neither John Kerry nor President Bush has the necessary 270 vote majority in the electoral college and so the outcome depends on the electoral votes of a single state and suppose that once again that particular state—Florida or some other state—is simply "too close to call." Under the law of every state, there is some procedure for a recount. Lawsuits and legal challenges would follow and there would be appeals to the state supreme court. The precedent of Bush v. Gore is that no matter how the state supreme court decides the case, Kerry v. Bush is going to be decided by the Supreme Court of the United States.

Before Bush v. Gore, jurists and academics would have confidently explained that the legal issues in a presidential election undergoing a contested recount were a matter of state law and the federal courts could not hear and decide the appeal in the first place, because the issues on the merits were nonjusticiable, i.e., political questions that were beyond the ken of Article III courts. Indeed, in December 2000 the experts and the pundits were all over the newspapers and cable news shows predicting that the Supreme Court of the United States would not take the Florida case. That their predictions proved to be mistaken, that the Supreme Court took the case on appeal from the state high court—two times, no less—highlights how much Bush v. Gore changed election law and the Constitution.

Not a single one of the nine Justices seriously argued that the case should not have been heard because under the Constitution those issues were committed to the political process and therefore for the elected branches to resolve. Sure, the per curiam opinion said the decision was "limited to the present circumstances," but the not-so-far-fetched hypothetical is the identical situation. Sure it takes four votes to grant review in the Supreme Court, but Bush v. Gore itself is evidence that there will be four Justices willing to take the next case.

The fact that what the Justices did in Bush v. Gore amounted to an amendment to the Constitution is demonstrated by a "before" and "after." Before: the federal courts would have left the issues to the political branches. The contested election would have played out in the state courts and state legislature and in Congress. That is what happened the only time this has ever happened before, in the Hayes-Tilden election of 1876: Congress created a commission, consisting of members of both houses plus five justices of the Supreme Court, that divided along party lines and awarded the disputed electoral votes to Hayes. The text of the Constitution and the consensus understanding of constitutional law was that it was for Congress ultimately to resolve the election dispute.

After: never mind the state courts and the state legislature or the Congress for that matter, and paraphrasing the movie line, "We don't need no stinking commission." Forget that the Constitution says that Presidents are supposed to choose Justices, not the other way around. Justice Jackson was wrong: the Supreme Court is final and infallible.

Thus, the worst thing about Bush v. Gore is not that Bush won or that Gore lost, but rather that the Supreme Court took it upon itself to decide the case, in the first place, and established itself as the presidential election commission. Indeed, after Bush v. Gore, the set of issues that are political questions—the kinds of issues that used to be off-limits for judges and courts to decide—is a null set. Chief Justice Charles Evans Hughes once observed: "We are under a Constitution, but the Constitution is what the judges say it is …." Judicial review has metastasized into judicial supremacy. "One person, one vote" sounds good on paper, but in practice all you need is five votes out of the nine.

Thomas E. Baker is a Professor of Law at the Florida International University College of Law.

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