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44th Street Notes

The Election: A Personal Analysis

Feb 2001

Whether it is a blessing or a curse to live in interesting times, it is obvious that we have just been witness to events whose legal and institutional significance is of the first magnitude.

Fortunately the state and federal courts that confronted the legal issues arising from the recent presidential election were willing to decide these issues rather than dismissing them as "political questions." Maintaining the Rule of Law in the electoral process is a key function of the judiciary. Indeed Congress's unconvincing resolution on a political basis of the disputed 1876 presidential election led to the enactment of a federal law designed to provide a legal framework for the resolution of such disputes with judicial involvement.

Deciding the Issues

Less impressive is the quality of the judicial work that decided these issues. For example, the Florida Supreme Court extended the date for certification of election results fixed in statute but gave no convincing reason why it could rewrite the Florida election law in this fashion. Similarly, Florida Circuit Judge N. Sanders Sauls gave no meaningful explanation for his refusal to enforce a statutory requirement that defective ballots should not be rejected if the "clear intent" of the voter is indicated.

The most critical questions about whether neutral principles were neutrally applied centers on the Supreme Court of the United States. There, a majority of the Court held that it would violate the Equal Protection Clause of the United States Constitution to enforce the just-mentioned requirement of Florida law. The court reasoned that the Florida statute conferred too much discretion on election officials and reviewing courts to decide when an intent was clearly indicated and when it was not.

For those who have urged the use of discretion to avoid technical applications of election laws that might otherwise frustrate ballot access and suffrage, the Court's reasoning is novel, surprising and somewhat difficult. Typically, discretion in election litigation can be applied differently by different judges. Once Florida Circuit Judge Terry P. Lewis was supervising a statewide recount of ballots that the tabulating machine recorded as containing no vote for President, there was less of a uniformity issue than typical because the final decision about challenged "clear intent of the voter" determinations was to be made by a single judge. Lack of uniformity, however, is essential to the Court's equal protection analysis.

The Supreme Court's decision also gives rise to questions when viewed in light of the purpose of the Equal Protection Clause. Prohibiting review of punch cards to see if the intent of the voter is clearly indicated means that a vote is more likely to be counted in affluent polling districts that use relatively expensive optical scanners than in districts that rely on inexpensive punch card "technology." Minority voters reside disproportionally in these punch card districts.

Restraint and Consensus

Reasonable and honest people will differ about whether the Court's reasoning is tenable and, if tenable, whether it is sound. Nonetheless, in the aftermath of Bush v. Gore, and an uncommonly close election, it is a time, as others have observed, for restraint and consensus. Many think the Chief Justice Rehnquist will soon retire. We must ask the question whether it would be in the institutional interests of the Supreme Court for any of the currently sitting Justices to become Chief Justice. Thirty years ago Justice Potter Stewart took himself out of contention for the Chief Justiceship because he felt that the interests of the Court would be served by bringing in an outsider. So today, a powerful case can be made that if offered the Chief Justiceship, any member of the present court should turn it down.

More generally, the consequences of this "messed up" presidential election should not include irrevocable lifetime appointments that do not enjoy a substantial level of senatorial consensus. For the next four years, in advance of making nominations to the Supreme Court or the Circuit Courts, the President should confirm that the nomination will enjoy consensus support in the Senate.

There are many mainstream judges in the mold of Justices John Marshall Harlan, Potter Stewart and Lewis Powell who should be able to command a consensus. A consensus will not be easy to achieve but, as they say, necessity is the mother of invention. Consensus is in all events a better choice than to undercut the public's confidence in the Judiciary with agenda-driven nominees from a President whom, in the minds of many honest and reasonable people, the Court itself elected by a vote of five to four.

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