Fifty More Bush v. Gores?

Will Tuesday’s elections be decided by the Supreme Court?

Illustration by William L. Brown

Last week, Mickey Kaus asked for my thoughts on the possibility of these midterm elections turning into “Florida times 50,” with dozens of Mini-Me, Bush v. Gore-style lawsuits blooming nationwide, as disparities in vote-counting, chad-reading, and absentee-balloting lead to contested results in various state elections—some of which will inevitably wind up in the courts. More specifically, Mickey wonders how the Supreme Court can avoid being drawn into these battles, especially if there are equal-protection allegations as “compelling” (imagine!) as those leading to the court’s halting the Florida recount in 2000.

My own bet is yes, we’ll be hearing about problems at least as bad and likely worse than Florida’s by this time Wednesday. We already have. State supreme courts have already rejiggered their own election laws in ways that impact voters as significantly as Florida’s in 2000. The New Jersey Supreme Court’s decision to ignore their own election laws and swap Frank Lautenberg for Bob Torricelli on the ballot at the last minute was at least as serious as the Florida court’s decision to generously re-conceive their own election statutes in Bush v. Gore. And absentee ballots cast for Paul Wellstone before his death in a plane crash last week have similarly led to equal-protection allegations, since Minnesota law provides that all absentee votes for Wellstone are to be thrown out while all votes for his Republican challenger, Norm Coleman, will be counted. To try to remedy that, the Minnesota Supreme Court ruled late last week that although state statutes provide that “Official supplemental ballots shall not be mailed to absent voters to whom ballots were mailed,” county officials could still go ahead and mail out supplemental absentee ballots to voters who had cast a vote for Wellstone, but only to those voters who request it.

I believe the Minnesota situation at least raises an equal-protection claim for Minnesota voters who failed to request a new ballot or whose ballots aren’t mailed in time to be counted. But this is beside the point. The U.S. Supreme Court won’t take these cases because they lost too much political capital over Bush v. Gore, and they aren’t willing to look that bad again. Mickey’s suggestion that the court would feel the need to intervene if there were conflicts between courts of appeals nationwide assumes the high court cares that there are conflicts. Circuit conflict doesn’t confer an automatic right to be heard in the Supreme Court. Maybe it should, but it doesn’t.

Finally, the court won’t take these cases because it would be impossible to reconcile the various lower courts’ equal-protection jurisprudence with its holding in Bush v. Gore, especially since it can’t reconcile its own equal-protection jurisprudence with its holding in Bush v. Gore. (Recall that until Bush v. Gore, some of those majority justices had never met an equal-protection claim they liked at all). The reason Bush v. Gore doesn’t create a precedent for the court to jump into midterm election battles is that Bush v. Gore deliberately and reflexively didn’t create a precedent for anything. Remember the court’s brazen limitation of its holding: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

Even the staunchest defenders of the majority decision in Bush v. Gore defend it only on the grounds that the presidential election needed to be resolved quickly and definitively, not because they believe its holding was consistent with the court’s federalism, equal protection, or voting jurisprudence. So who could expect the court to apply this reasoning to any future cases? Even the majority knew they were just making it up! Don’t get me wrong; if it comes down to the courts deciding who controls the Senate (and thus who shapes the next court), the issue will be of vast political import, same as Bush v. Gore. But I’m betting it still won’t be important enough for the court to look as partisan and corrupt as it looked two years ago. The court’s afraid we won’t be fooled again.