The More the High Court Strays, the More the Harm

The old adage that “hard cases make bad law” may turn out to be no truer than in the monumental decision expected today or tomorrow from the U.S. Supreme Court in the Florida recount case.

Bush vs. Gore is a “hard case” because, at least in the apparent opinion of five justices of the U.S. Supreme Court, the Florida Supreme Court’s 4-3 opinion ordering a statewide recount of the undervotes is fundamentally flawed and unfair. The case may make “bad law,” however, because any route to reversal that a majority of federal high court justices could take likely would require the court to overturn sound precedent or create new and troubling law.

Justice John Paul Stevens, in his dissent from the court’s order stopping the recounts, mentioned three ways in which the court’s opinion could undermine existing precedent.

First, the court could show less deference than it has in the past to state Supreme Court interpretations of state law. Second, the court could be taking on a major role in resolving presidential election disputes, a role that the U.S. Constitution seems to make the job of Congress. Third, the court could be reaching constitutional questions that may not have been presented in the lower courts, a course it usually avoids.

Yet there are even more troubling aspects to how the court likely will reach its decision. To understand why, consider the three different grounds for overturning the Florida Supreme Court that George W. Bush raises.

First, he argues that the Florida court established new standards for recounts that conflict with the state Legislature’s old rules. Bush argues that the establishment of new standards violates Article II, Section 1, Clause 2 of the Constitution, which provides that the electors of each state are appointed “in such manner as the Legislature thereof may direct.” Second, Bush argues that the Florida court made “new law” in violation of a federal statute. Third, he argues that the use of manual recounts--only of undervotes and with different counting standards in each county--violate his 14th Amendment right to equal protection under the laws or due process of law.

The second argument, related to the federal statute, now appears to be the least likely way that the court majority will resolve the case. In the opinion issued last week by the federal high court in the first round of this litigation, the court described the provision as a “safe harbor,” one that ensured that Congress will not tamper with a state’s choice of electors made pursuant to existing law. It doesn’t look like this safe harbor would create any right under which Bush could win in the court.

That leaves two possible bases for the court majority to hold in Bush’s favor, Article II or the 14th Amendment.

If the court agrees with Bush’s first argument, it will be declaring that legislatures have “plenary” power over the choice of presidential electors. Under this precedent, a state legislature could simply take away the right of citizens to vote for president and keep the right for itself. Or, more realistically, a state legislature could say that there will be no judicial review to ensure that balloting for president in the state is free and fair. That’s an invitation to fraud and incompetence. Finally, the state legislature might set itself up as the sole arbiter of presidential election results, further delegitimizing the process.

If the court goes along with Bush’s third argument, it will be declaring that states must adopt uniform procedures for resolving election disputes, perhaps even that nothing less than a full manual recount of all the votes in an election. Or perhaps the court will hold that manual recounts are themselves unconstitutional. Justice Antonin Scalia suggested as much in his concurrence in the stay order, stating, without any empirical basis and contrary to the accepted wisdom before this election, that “it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.”

Whatever the precise contours of this third argument, it would mean huge federal intrusion into the election processes of all 50 states--and not just in presidential elections. This is a far cry from how the court has considered election cases in the past, where it has said that no “litmus paper test” should apply to evaluate state election laws and considerable deference should be given to states in crafting such laws. In a 1986 case, for example, the court had said that an election law that kept most third-party candidates off the general election ballot could be justified to prevent voter “confusion” and that the state had no need to prove that such “confusion” exists.

Now perhaps a closer look at state election laws is a good thing. Certainly the Florida situation has pointed out some glaring problems with the process. But there is a cost here in terms of the rights of states to craft their own laws and experiment with different election systems. In other cases, the same five justices expected to be in the majority in Bush vs. Gore have paid greater heed to this argument of “federalism.”

In the end, the more that the court in its opinion strays from its own precedents, the greater the harm to this election process and the country as a whole. Worse than “bad law” will be a Supreme Court whose legitimacy is tarnished.