Pretending That Bush v. Gore Is Constitutional Law II

I will have some discussion about constitutional “minimalism” later today, but in the meantime a quick note about the first case critics of this theory are likely to bring up. In comments, Redbeard refers us to this piece by Adam Cohen:

There are several problems with trying to airbrush Bush v. Gore from the law. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power.

The courts should also stand by Bush v. Gore’s equal protection analysis for the simple reason that it was right (even if the remedy of stopping the recount was not). Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The conservative justices may have been able to see this unfairness only when they looked at the problem from Mr. Bush’s perspective, but it is just as true when the N.A.A.C.P. and groups like it raise the objection.

There is a final reason Bush v. Gore should survive. In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.

Longtime readers will know that I consider Bush v. Gore an abomination, if anything worse than it’s commonly perceived as being. But they will also know that I largely agree with Cohen’s argument. About whether the equal protection argument is “right,” I’m not sure; I certainly approve of the abstract policy result, and it doesn’t directly contradict the text of the Constitution, although it’s still a stretch. Cohen is right, however, that what made the decision uniquely appalling was not the equal protection argument but the fact that the remedy was completely inconsistent with the constitutional analysis. And to try to pre-emptively claim that the decision will have no precedential value is simply absurd. If the rule of law means anything, it’s that once announced legal principles should bind similar cases until the law changes. As I argued a few months ago:

The Supreme Court has announced that there is a fundamental right not to have one’s vote diluted, a right clearly violated by Ohio’s 2000 election procedures, as well as those of all states that allow some individuals to have their votes diluted by less reliable voting machines or arbitrary recount procedures. Whether or not this decision was right in the first instance, lower courts should apply the principle. There is no reason, conversely, to be bound by the B. v. G 5’s lawless “minimalist” dictum that “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”; it is the responsibility of lower courts to sort through these complexities, and faithfully apply the precedent to cases in which there is vote dilution inherent in state election procedures. The rule of law demands no less. To paraphrase Michael McConnell, is the bottom of the slippery slope so bad? Reforming the country’s egregiously irrational electoral system would certainly be a good outcome.

There is another upside to taking Bush v. Gore seriously, in that it would put the 5 justices [well, yes, actually only 3, although it will be fun to see Bush’s appointments squirm too–ed.] who disgraced themselves in 2000 into a delicious bind, like George Costanza driving Susan’s parents to his fictional house in the Hamptons. Either they can allow lower courts to apply the precedent with some measure of logic, or they can take a case and admit that the case was not constitutional law in any relevant sense at all. I say we get to it…

Legal principles do not have an “only when they help Republican Presidents” limitation. Bush v. Gore is the law of the land, and unless the court wants to overturn it courts should hold that voting systems that dilute the votes of some citizens are unconstitutional. That this would require considerable changes to American electoral law isn’t the lower courts’ problem, and courts should also ignore Kennedy’s meaningless dicta about how the inequities in Florida’s voting system were somehow unique (when in fact they were entirely banal.)