New version page

Law Review

Upgrade to remove ads

This preview shows page 1-2-3-24-25-26-27-49-50-51 out of 51 pages.

Save
View Full Document
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 51 pages.
Access to all documents
Download any document
Ad free experience

Upgrade to remove ads
Unformatted text preview:

535 DISAPPEARING DEMOCRACY: HOW BUSH V. GORE UNDERMINED THE FEDERAL RIGHT TO VOTE FOR PRESIDENTIAL ELECTORS PETER M. SHANE* I. THE FEDERAL RIGHT TO VOTE FOR PRESIDENT .................................................. 537 II. BUSH V. GORE AND VOTE TABULATION AS MASS ADJUDICATION ....................... 550 A. Equal Protection and Due Process in Bush v. Gore .................................... 550 B. Applying Due Process I: The Hypothetical Case of Gore v. Harris............. 553 C. Applying Due Process II: The Real Case of Bush v. Gore ........................... 568 III. REAL DEMOCRACY: BUSH V. GORE AND INSTITUTIONAL RESTRAINT ................. 578 CONCLUSION ........................................................................................................ 584 Imagine, as you may already wish, that it is 2004. Despite flickers of opposition from Senator John McCain and former Nebraska Senator Robert Kerrey, George W. Bush and Al Gore appear to have sown up their respective renominations by mid-spring. In some state with, say, twenty-five electors, the Democratic legislature and the Democratic governor are worried. Polls predict a razor-thin Gore vic-tory in the state, but, if voting machines malfunction or if inclement weather depresses the senior citizen vote, the state could be lost to Bush. No one wants a repeat of Florida’s 2000 travails. The solution? The legislature enacts a bill, eagerly signed by the Governor, provid-ing that the state legislature itself, by a majority vote of each house, shall choose the state’s electors in 2004 for President and Vice Presi-dent of the United States. Under Bush v. Gore,1 my hypothetical statute is constitutional. A state legislature’s authority to disenfranchise the entire citizenry is the very premise with which the majority in Bush v. Gore commences its legal analysis.2 But this premise is wrong. Its cavalier utterance by the majority exemplifies one of the opinion’s most extraordinary aspects, its obliviousness to the values of democracy. * Distinguished Service Professor of Law and Public Policy and Director of the In-stitute for the Study of Information Technology and Society, H. John Heinz III School of Law and Public Policy, Carnegie Mellon University; Professor of Law, University of Pitts-burgh School of Law. I am grateful to Professor Bernard Hibbitts of the University of Pittsburgh School of Law and Dean Tony Sutin of the Appalachian School of Law, who created a virtual library on Presidential Election Law within the Jurist web site, see http://jurist.law.pitt.edu/elec-tion2000.htm, that proved invaluable for real-time research and analysis regarding the 2000 election. This Article benefitted also from comments by Professor Greg Magarian of Villanova Law School and attorneys Reed Hundt and Carolyn Shapiro, as well as from the research assistance of Michael Vasiliadis, University of Pittsburgh School of Law, Class of 2002. Copyright 2001. Peter M. Shane. All rights reserved. 1. 531 U.S. 98 (2000). 2. Id. at 104.536 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 29:535 On any account, Bush v. Gore marked an astonishing event in the history of democratic governance. Never before in the history of de-mocratic government has an unelected judicial organ chosen the head of state by preventing the counting of votes. Such an event cuts entirely against the grain of our political history. The past 200 years have witnessed a broadening of the franchise in the United States (and throughout the world) in terms of both eligibility and applicabil-ity. The right to vote has become central to our conception of citizen-ship. It is hard to imagine any modern-day Western theory of gov-ernmental legitimacy that does not rest in some essential aspect on “the electoral connection.” Thus, it was startling to witness the Su-preme Court’s incautious embrace of a theory of the world’s most im-portant elected office that treats its democratic character as merely discretionary. Bush v. Gore is antidemocratic in more than its ordination of a particular electoral outcome. It is oblivious to the democratic charac-ter of our Constitution in every aspect of its analysis. Its very start-ing point—the asserted authority of the states to disenfranchise vot-ers altogether from participation in the selection of presidential elec-tors—is unpersuasive in the face of the text and history of the Four-teenth Amendment, and Part I below explains why the Constitution ought now be interpreted to protect the rights of individuals to vote for state electors for President and Vice President of the United States. This analysis points to what should have been the founda-tional premise of Bush v. Gore: namely, the conspicuous trajectory of our constitutional development toward more democracy. And, it ex-plains why the Florida Legislature would have been acting unconsti-tutionally in December 2000 had it proceeded to authorize its own slate of electors in lieu of those chosen on Election Day. Part II explores how the Fourteenth Amendment should have been deployed in light of democratic values to resolve the questions actually presented by Bush v. Gore. The majority purported to ad-dress an equal protection problem in Bush v. Gore, although none of the practices being challenged amounted, under anyone’s account, to a form of explicit or otherwise intentional discrimination against Bush voters—the sort of harm typically addressed through an equal protection rubric.3 By contrast, the importance of procedural due process in elections as an essential bulwark of democracy was utterly overlooked. Vote tabulation is a species of administrative adjudica-tion, and voters should be deemed minimally entitled under the Fourteenth Amendment to voting tabulation systems rationally cal-culated to ascertain their intent accurately. A due process analysis of the Florida election supports the conclusion that hand recounts in 3. See Washington v. Davis, 426 U.S. 229 (1976).2001] DISAPPEARING DEMOCRACY 537 challenged counties should have been deemed a constitutional pre-requisite to the casting of Florida’s electoral votes. There was no le-gal or practical impediment to conducting a statewide recount consis-tent with the Fourteenth Amendment, and, compared to the Court’s assault on due process, the equal protection issue raised by the ma-jority and accepted as nontrivial by Justices Souter and Breyer4 pales as


Download Law Review
Our administrator received your request to download this document. We will send you the file to your email shortly.
Loading Unlocking...
Login

Join to view Law Review and access 3M+ class-specific study document.

or
We will never post anything without your permission.
Don't have an account?
Sign Up

Join to view Law Review 2 2 and access 3M+ class-specific study document.

or

By creating an account you agree to our Privacy Policy and Terms Of Use

Already a member?