It is a rare book signing or media appearance related to American Original that does not bring a question about the Court’s 2000 decision in Bush v. Gore. Yesterday when I was on the Diane Rehm Show, based in Washington, D.C., and broadcast on NPR, a woman named Janice from Renton, Washington, called in to say, “I resent Justice Scalia saying ‘Get over it,’ when we’re really talking about a coup d’etat by the judiciary.” She was referring, of course, to the 5-4 decision stopping the Florida recounts in the presidential election and ensuring George W. Bush’s victory over Al Gore. Half the country still seems angered by the decision handed down nine years ago this month.
Comments such as that from Janice highlight Justice Scalia’s singular role in the dispute, on which I elaborate below. Her remark also prompted me this time to check on how the decision has been faring in the case law. To my surprise, the decision that the justices wanted limited to the Florida case has now been cited in more than 200 federal and state court rulings. So as it lingers in the public psyche, Bush v. Gore remains a reference in the law, not just politics.
Scalia’s leading role came before the Supreme Court decided the merits of the dispute between then-Texas Gov. George W. Bush and then-Vice President Al Gore, when the justices by a 5-4 vote first shut down all recounts of Florida ballots. In that Dec. 9 order (three days before the Dec. 12 decision favoring Bush), Justice Scalia took it upon himself to defend the majority’s action. He wrote in a statement (signed by none of his colleagues) that letting the recounts continue would threaten the “legitimacy” of Bush’s election. “Count first, and rule on legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Scalia continued, ”the counting of votes that are of questionable legality does in my view threaten irreparable harm to [Governor Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” As I write in American Original, that was a surprising and dubious assessment of the situation. He was suggesting that if Bush were to win the presidency through a Court judgment that the recount was unfair, it would be better to have stopped the recount outright and avoided any tally that ended up favoring Gore. When challenged on the case during his own appearances on the road, Justice Scalia tells audiences, “Get over it.” And he complained in one our interviews, “I take most of the heat for that case,” suggesting he thought that simply was not fair. Janice would not agree.
The recent comments from her and others – nearly a year after George W. Bush finished his two terms — led me to check on how Bush v. Gore was doing in the case law. When the five-justice majority ruled that the Florida standards for counting ballots varied too widely and failed to meet the constitutional equality guarantee, it said “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Law professors teach Bush v. Gore as one-of-a-kind decision, and the justices certainly have turned away from it. The high Court has not relied on the holding of Bush v. Gore for anything since December 2000. Yet I discovered that it has been cited in a couple hundred lower court rulings. It has endured — not with as much force as the political anger and likely not as the five-justice majority wanted it to endure. The 2000 ruling has enhanced the grounds for equal-protections challenges to unreliable voting procedures. As the U.S. Court of Appeals for the 6th Circuit wrote in a case last year, League of Women Voters of Ohio v. Brunner, “Although Bush [v.Gore] was necessarily ‘limited to the present circumstances,’ district courts have found its analysis applicable in challenges to voting systems.” The 6th Circuit relied on the case as it allowed the League of Women Voters and several individuals in Ohio to bring an equal-protection challenge to balloting practices during the 2004 Ohio presidential election. Among the claims, in the case recently settled, were that some voters had to wait up to 12 hours to cast a ballot and many disabled voters were turned away from the polls.