Supreme Court May Pass on This One

The Supreme Court may soon face an opportunity it might rather refuse.

Three years ago, the justices announced a broad principle of equality in voting when the court stopped Florida’s county-by-county hand recounts of the ballots in the disputed presidential election, thereby assuring George W. Bush’s victory.

“The state may not ... value one person’s vote over that of another,” the court said in Bush vs. Gore. This right to an equal vote is violated “when a state accords arbitrary and disparate treatment to voters in different counties.”

Because Florida had not set precise rules on when a paper ballot with a hanging chad was deemed a legal vote, the counting standards “might vary from county to county,” the court said.

Then, as if worried over what it had done, the justices who joined the court’s unsigned main opinion noted they were speaking narrowly of “the special instance of a statewide recount,” since the notion of “equal protection in election processes presents many complexities.”

The justices let the contradiction between their broad principle and their narrow caveat go unresolved.

Now a federal appeals court decision postponing the California recall election could give the justices a chance to clarify their meaning.

Many legal experts believe the justices will pass that opportunity up.

The appeals court ruling involved the same sort of error-prone voting machines used in Florida in the presidential election.

“The plaintiffs’ Equal Protection Clause claim mirrors the one recently analyzed by the Supreme Court in Bush vs. Gore,” the U.S. 9th Circuit Court of Appeals judges said. “The use of defective voting machines creates a substantial risk that votes will not be counted,” they ruled.

The troublesome punch-card voting machines at issue are used in six California counties, including Los Angeles, but not in 52 others. As a result, the appeals court judges said, the rate of errors would vary substantially from county to county to a degree that would violate the principles of the Florida case.

The 9th Circuit on Tuesday asked lawyers to submit briefs on whether a larger panel of appeals court judges should reconsider the ruling. If they decide to rehear the case, it could consume a week or more.

Eventually, however, whichever side loses in the court of appeals is almost certain to seek U.S. Supreme Court review.

But the court does not have to accept any case for appeal; the votes of four justices are required to hear a case.

Legal experts say a number of reasons could prompt the court to avoid the case.

The justices already have a full docket, including a complicated set of issues involving federal regulation of campaign financing that they heard arguments on during their normal summer recess. They have pledged to resolve that case as soon as possible.

Although the recall is a consuming issue in California, it has no direct impact on the rest of the country. The justices often leave appeals court rulings untouched, even ones the majority thinks are wrong, if the cases do not have national implications.

“I ... don’t think they will see the issue of whether the recall goes forward as a question of overriding national significance,” said Bradford Berenson, a former Supreme Court law clerk and, until recently, a White House lawyer for President Bush.

Finally, revisiting the December 2000 decision might reveal the deep disagreements among the justices -- and not just the split between the majority and the dissenters.

The Bush vs. Gore opinion resulted from an awkward and hasty compromise. Chief Justice William H. Rehnquist had written an opinion in the case that would have focused on the special nature of presidential elections, according to court sources.

Since the Constitution says the states “shall appoint electors” and gives that power to “the Legislature,” the chief justice said the Florida courts erred by getting involved in the vote counting at all.

But that opinion had the disadvantage of sounding archaic and elitist. Most Americans believe they vote for the president and decide the winner, rather than leaving the matter to anonymous “state electors.” Only Justices Antonin Scalia and Clarence Thomas joined Rehnquist’s opinion.

Justice Anthony M. Kennedy wanted to focus on the broader right to equality in voting that had been written during the civil rights era of the 1960s. He cited decisions holding that the right to vote demands that votes be counted equally.

Since Rehnquist needed two more votes to create a majority, he, along with Scalia, Thomas and Justice Sandra Day O’Connor, were obliged to sign on to Kennedy’s opinion.

Because of the press of time, the justices could not resolve their points of disagreement. The result, announced late on the night of Dec. 12, 2000, was an opinion filled with liberal-sounding principles that led to a conservative victory.

The Florida case was widely denounced by Democrats as a partisan ruling by a Supreme Court with a majority of justices appointed by Republicans. If the 9th Circuit ends up sticking with its current decision, which many political analysts said would help Gov. Gray Davis, a reversal by the Supreme Court would certainly prompt Democrats to yell foul again.

“My hunch is they will stay out of it. It’s hard for me to think the Supreme Court would want to wade into this and expose themselves again to charges of partisan political motivation,” Berenson said.

“The basic holding [of Bush vs. Gore] was that votes shouldn’t be counted unequally, and it is not a very great leap to apply it in this context,” he said.

New York University law professor Richard Pildes, an election law expert who has written extensively on Bush vs. Gore, said the 9th Circuit’s decision “is a very straightforward way of understanding the fundamental principle set in Bush vs. Gore. And I would be very surprised if the Supreme Court wanted to get involved in this case.”

Indeed, Columbia University law professor Samuel Issacharoff, another election law expert, said the Supreme Court may well be pleased by the fact that its controversial ruling can no longer be seen as one-way ticket, benefiting Republicans but not Democrats.

“When the Bush vs. Gore case came down, there was a widespread view it was judicial imperialism. This validates what the majority in Bush vs. Gore said,” Issacharoff said.

Vanderbilt University constitutional law professor Suzanna Sherry said the 9th Circuit’s decision was “essentially identical to Bush vs. Gore. The issue is whether you can favor the votes of people in some counties more than others.”

“There is no way to distinguish the use of punch-card ballots in California from the use of punch-card ballots in Florida.”

Not all legal analysts agree, of course. John Eastman, a professor at Chapman University School of Law and a former clerk to Justice Thomas, said he hopes the high court will take up the case “because this is such an egregious disregard for what they said.”

The 9th Circuit’s ruling, if taken seriously, “means every single election for 200 years has been unconstitutional” since the states and their counties have used different means of counting votes, from paper ballots to electronic scanners, he said

The ruling, he added, “reeks of raw partisan politics.”

Similarly, Pepperdine University law professor Douglas Kmiec said he believes the 9th Circuit ruling “is dead wrong and an affront to the people of California.”

He questioned the assertion that punch-card systems are more flawed and error-prone than other vote-counting systems.

“The Supreme Court has never held that punch cards and optical scanners so differ in error rates that it was an equal protection violation. Bush vs. Gore found an equal protection violation essentially because Florida had no standard for counting votes” during the recount process, he said.

But even so, Kmiec said there were strong reasons to think the high court may choose not to get involved, particularly because of the impending election deadline.

“While they demonstrated they can act with adroitness in Bush vs. Gore, it is not the ideal situation to have an expedited briefing, argument and opinion,” he said.