In Friday’s National Journal, Stuart Taylor Jr. dons his robes and circulates a learned draft opinion for the U.S. Supreme Court in Bush v. Gore. Taylor thinks the court should declare the whole issue a “nonjusticiable political matter” to be resolved by the Florida Legislature and, ultimately, by Congress voting on which electors to accept. Sounds like a sensible outcome to me. A decision by a frankly political Congress would have a parliamentary legitimacy a decision by covertly political judges, state or federal, would lack. (If you don’t like the result, elect a different Congress next time!)
But Taylor’s “nonjusticiability” rationale is troubling. He says “Congress has the judicially unreviewable power to determine the meaning of both Article II [of the Constitution] and the 1887 act” (the Electoral Count Act in which Congress set out a bunch of rules for states to follow in choosing electors). Why bother passing the 1887 Act if federal courts can’t determine and apply its meaning? Can’t the courts at least do this until they’re overruled by Congress’ choice of electors? Kausfiles yields to no content provider in its hostility to judicial imperialism, but friends of democracy should want valid, democratically enacted statutes to be enforced by the courts. Refusing that job because of “nonjusticiability” is a cop-out.
Here’s another idea. Why not declare a) the Florida State Legislature has power to choose its own slate of electors under the explicit grant of that power in Article II of the Constitution; b) the 1887 Act is unconstitutional because it’s an attempt by Congress to regulate and limit this Article II power of the state legislature, and you can’t change the Constitution with a statute; and c) if Congress doesn’t like what the Florida Legislature has done, it can ignore that legislature’s action and validate competing electors, using its power to “count” electors under the 12th Amendment?
The result would be a constitutional mechanism that leaves the decision in the hands of elected pols, where Taylor persuasively argues it belongs, but without creating a weird mutant class of election statutes that can’t be enforced by the courts. …
[Who got better grades in law school, you or Taylor?–Ed. I respectfully refuse to answer that question.]
P.S.: I’m not saying the Florida Legislature should intervene. That would be ugly. It’s obviously better to have an election with a result. I’m just saying they have the power to intervene under Article II’s pretty-darn-explicit language. (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. …”)