State Legislatures Magazine: February 2001

Editor's Note: This article appeared in the February 2001 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.

Judgment Call: The Supreme Court Steps In

One Person, One Vote
Concurring Opinion
A Call for Clearer State Laws

Judgment Call: The Supreme Court Steps In

The Supreme Court's decision on Dec. 12 leaves states cross-examining how they run their elections.

By David G. Savage
The Supreme Court ended the great presidential election battle of 2000 with a short, unsigned opinion, but it may have opened the door to years of litigation over how elections are run in every state of the nation.

In calling a halt to the hand recounts in Florida, the justices said the "equal protection" clause of the Constitution requires votes be counted under fair, uniform and equal standards.

"Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another," they said in Bush vs. Gore.

The 5-4 majority ruled the Florida Supreme Court had not set "the minimum requirements for nonarbitrary treatment of voters." Moreover, it was too late to set new standards because of the Dec. 12 deadline for resolving all controversies over the appointment of presidential electors.

The immediate impact of the ruling was predictable. With the hand recounts halted permanently, Vice President Al Gore conceded the election within 24 hours. But the long-term impact of the Court's ruling is uncertain.

ONE PERSON, ONE VOTE
Some experts on voting rights said the decision revives the "one person, one vote" doctrine that drove the reapportionment revolution of the 1960s. Before then, rural areas in many states had power in the legislature that was far greater than their numbers would suggest. For example, a rural county with 50,000 residents might have had the same one vote in the state senate as the urban county with 500,000 residents.

But beginning in 1962, the Supreme Court said these disparities are unconstitutional because they violate the voter's right to have his or her vote count equally. "The right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise," the Court said in the 1964 case of Reynolds vs. Sims. This passage was repeated in the Bush vs. Gore opinion.

During the 1960s, these court decisions forced the states to redraw the lines for voting districts so that they were roughly equal in population. Now, some lawyers think the Court's latest opinion will force legislatures to adopt standard systems for counting votes.

Columbia University Law Professor Samuel Issacharoff, a voting rights expert, said the opinion offers "a reinvigoration of fundamental rights doctrine in the area of voting, and that could be very positive. Parts of the opinion read like it came from the Earl Warren Court" of the 1960s, he said.

It "certainly opens up a new avenue of litigation about voting, or at least it potentially does," added Harvard Law Professor Randall Kennedy, a former clerk to the late Supreme Court Justice Thurgood Marshall.

In nearly every state, there are different means of counting votes. Many counties use the now notorious punch cards that are run through tabulators, a process that Gore's lawyers said was five times more likely to miss valid votes than a modern optical scanner. Some areas still use paper ballots. If the Constitution requires uniform vote-counting systems in statewide races, these county-by-county differences could be subject to a legal challenge.

Both the majority and four dissenters in the Supreme Court noted the problem. "Nationwide statistics reveal that an estimated 2 percent of ballots cast do not register a vote for president for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot," the majority said. Its opinion spoke for Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

The dissenters focused on the differences within states. "In a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted," said Justice Stephen G. Breyer.

"Florida's decision to leave to each county the determination of what balloting system to employ-despite enormous differences in accuracy-might run afoul of equal protection," said Justice John Paul Stevens. "So, too, might similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design." In a footnote, Stevens pointed to a Florida state analysis showing that the percentage of non-votes in counties with a punch-card system was 3.92 percent, while those with optical scanners had 1.43 percent non-votes.

But despite the focus on voting disparities and the Court's invocation of the Constitution's equal-protection clause, some legal experts predict the decision will have little long-term impact. They note that the court's opinion includes the caveat that it is "limited to the present circumstances [of a statewide recount], for the problem of equal protection in election processes generally presents many complexities."

Law Professor J. Clark Kelso at the McGeorge Law School in Sacramento, Calif., is among the skeptics. The equal protection analysis in the opinion is "extremely underdeveloped," he said. "Scholars are scratching their heads because the high court was trying to say as little as it could to justify the opinion. It probably won't have much effect on the law other than in a case involving a manual recount of punch card ballots in a presidential election," he concluded.

It is also unclear how the ruling will affect the Supreme Court's federalism doctrine. Until December, the Rehnquist Court had been best known for reviving federalism and limiting federal intrusions into the state's domain. The Florida election fight turned the tables. The Republican lawyers petitioned the high court and urged the Rehnquist Court to intervene in the Florida dispute. Meanwhile, Gore's lawyers defended the Florida Supreme Court and argued that its handling of a state election dispute should be off-limits to second-guessing from Washington. And in the end, the five conservative justices who usually champion federalism supported Bush and overruled the Florida courts, while the four liberal dissenters mocked the majority justices for changing their tune.

"Federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism," wrote Justice Ruth Bader Ginsburg. "Were the members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court," she said.

The high court's conservatives were divided among themselves by the case, and they were unable to agree on a clear ruling that affirmed the preeminent power of state legislatures to set the rules for presidential elections. During the oral argument on Monday, Dec. 11-the second to be broadcast nationally from an audiotape-the majority sounded as though it was heading toward a broad assertion of state legislative power. They focused on Article II of the Constitution which says "each state shall appoint, in such manner as the legislature thereof may direct," the electors for president and vice president.

Justice O'Connor, a former Arizona state senator, commented that this constitutional mandate requires that state judges give "special deference" to the election rules set by the legislature. Agreeing, Justice Kennedy said the state supreme court cannot make "new law" after the election. Bush's lawyers had contended the Florida Supreme Court changed the law after the election by waiving the seven-day deadline for certifying a winner and allowing extra time for manual recounts. They also said the standards for deciding what is a legal ballot had changed.

CONCURRING OPINION
Had the high court majority relied on this theory, the opinion would have read as a strong affirmation of the rulemaking power of state legislatures. The chief justice drafted just such an opinion, but it garnered just three votes, Justices Scalia and Thomas and his. It was issued as a concurring opinion.

"If we are to respect the legislature's Article II powers," Rehnquist wrote, "we must ensure that the post-election state court actions do not frustrate the legislative desire to resolve the controversies under the preexisting rules.

"Importantly, the legislature has delegated the authority to run the elections and oversee election disputes to the secretary of state," he continued. Because the state supreme court had ignored her decisions, the high court was empowered to overrule the state judges, Rehnquist said, because they had violated Article II.

Neither O'Connor nor Kennedy explained why they did not join the Rehnquist trio to form a majority. In the past, they have shown a preference for minimalist decisions, and they may have believed that focusing on the lack of "uniform standards" governing the hand counts was the simplest and most direct way to resolve the case. However, critics of the high court's federalism decisions are sure to use the ruling in Bush vs. Gore to label the conservative justices as hypocrites who were quite willing to second guess the states when it was convenient to do so.

A CALL FOR CLEARER STATE LAWS
If nothing else, the fight over the Florida race highlights the importance of having state laws that are clear and precise. At nearly every point in the five-week struggle, ambiguities in the law led to courtroom battles-and more uncertainty.

Lawmakers in every state would be well advised to take a hard look at their election laws, since the same questions might arise in the future.

The Florida litigation focused on two conflicts that probably recur in most states. The first concerned the conflicts between local and state authorities. The second concerned different standards for deciding what is a legal vote.

The first phase of the legal fight focused on three counties in south Florida: Palm Beach, Broward and Miami Dade. Democrats asked for hand recounts in those counties because of a large number of "undervotes," ballots that did not register a vote for president in the machine count. There was no allegation of fraud, and no evidence of a machine malfunction that would explain why thousands of ballots went unread.

One section of state law (102.156) says, "If there is a discrepancy which could affect the outcome of an election," ballots may be recounted. It goes on to say, "If the manual recount (of at least 1 percent of the total votes) indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall [correct the computer malfunction] or manually recount all ballots."

Much of the litigation focused on this now famous provision. This section guided county officials for handling local election disputes, but it appeared to conflict with the powers given to the secretary of state. What if the county board could not manually recount all of its ballots within the seven-day state deadline for submitting the returns? And did the county board have the discretion to undertake a hand recount, or was it mandatory?

Florida's Secretary of State Katherine Harris insisted that no recount was authorized in south Florida because there was no computer breakdown. Her lawyers said the phrase "error in vote tabulation" referred to a machine malfunction, not to the possibility that some paper ballots went unread by the tabulators.

And she also held firm to the view that the county's vote tallies would be rejected if they were submitted after the seven-day deadline. She pointed to one section of the law that said returns from "all missing counties shall be ignored." This was enacted in 1951. In 1989, the state Legislature amended the election code and included a provision that said, "If the returns are not received by the department by the time specified, such returns may be ignored." The difference between "shall" and "may" occupied several groups of lawyers and judges.

When Gore's lawyers challenged Harris's decisions, the Florida Supreme Court ruled for the vice president on both points, saying the hand recounts were legal, and the returns could be submitted as late as Nov. 26. However, the U.S. Supreme Court voided the decision on Dec. 4 and said the court-ordered changes appeared to conflict with the constitutional standards set in Article II.

The Florida litigation also showed the importance of having a clear definition of legal vote. To the end, the lawyers and the judges-state and federal-disagreed on what Florida law said on this basic issue. Secretary Harris took the strict, conservative view that if voters did not clearly punch a hole through the paper ballot, it was not a legal vote. Chief Justice Rehnquist echoed that view in his concurring opinion for Bush.

But Gore's lawyers and the Florida Supreme Court pointed to the broader, liberal standard set in state case law that says ballots are legal if the "actual intent" of the voter can be clearly ascertained. For example, if a voter fails to punch the mark next to candidate "Jim Smith," but instead writes in the words, "Jim Smith," the courts have long said that vote can be counted as legal.

The difference between those two standards-the one strict, the other lenient-might well have determined who became the president of the United States. However, by a margin of one vote, the Supreme Court called off that hand recount because the legal standards were not clearly set in advance. Historians will debate the merits of that ruling for decades, but for now, it surely calls for making the election laws clear for all to see.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times. He is a frequent contributor to State Legislatures magazine.

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