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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

The Nine In a Pickle

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October 28, 2004

This op-ed originally appeared in The New York Sun, October 28, 2004, p. 11.

There is a common perception - actually a misperception, in my judgment - that the U.S. Supreme Court determined who won the White House in 2000. Even if Bush v. Gore had not stopped the Florida recount, it is most likely that the current President Bush would have been the occupant of the Oval Office anyway.

Without the court's intervention, the process leading up to Number 43's inauguration might have been even uglier: The U.S House of Representatives accepting a pro-Bush slate of presidential electors picked by the Florida legislature; the U.S. Senate, with Vice President Gore himself breaking a 50-50 tie, accepting a pro-Gore group of electors approved by the Florida Supreme Court; and, then, Florida Governor Bush breaking this bicameral deadlock in favor of his younger brother. Some think that the Supreme Court agreed to consider Bush v. Gore in order to give the process more legitimacy.

The problem now, as all can see, is that Bush v. Gore gives legitimacy to almost any conceivable claim of differential treatment among voters in the casting or counting of votes. Suppose that so-called "provisional ballots," which voters submit when there are questions about their eligibility, are more likely to be tossed out as suspected fraud by one local elections board than another. That's an unconstitutional denial of equal protection in the same way as the differential treatment of dimpled chads in Bush v. Gore. The same is true if some local boards reject voter registration cards using subjective standards that they apply more rigorously than other local boards.

If asked this year to address one of these Bush v. Gore-derivative claims, the Supreme Court might find itself in a bit of pickle. Let's assume that intervening again to sustain the equal protection claim would cause the decisive state's electoral college votes to go to Mr. Kerry. The country would then perceive that twice in a row the court determined the presidency, and the country might be quite displeased about that.

In this scenario, however, deciding not to intervene presents problems of its own. A principled application of the court's jurisprudence in Bush v. Gore would cause the Democrat to prevail this time. By not intervening, with the consequence that Mr. Bush gets a second term solely because the court refuses to entertain the application of its own precedent, the court inevitably would invite the accusation that it selectively decides to get involved only when doing so achieves a desired partisan outcome. In this situation, then, the court's refusal to consider the equal protection claim would be just as much a president-picking decision as the exercise of its jurisdiction.

We must hope then that the vote counting process avoids this awkward circumstance. Fortunately, the odds still seem to favor that. The initial tally may not be close enough for legally disputed ballots to make the difference whether a majority of the Electoral College goes one way or the other. While the number of provisional ballots in a swing state might well exceed the margin of regular ballots, when the dust settles the number of legally contested provisional ballots may end up smaller. This possibility increases to the extent that the legal system is able to resolve some basic questions about provisional ballots (for example, that state law may require them to be cast in the correct precinct in order to count, as the Sixth Circuit federal court of appeals ruled this past weekend).

Nonetheless, we cannot be too sanguine. Some observers have suggested that there is a less than 10% chance that the outcome of the presidential race depends on the result of litigation. This estimate, regrettably, seems too low. If the race is as tight as many polls suggest, then it is quite plausible that there will be enough provisional ballots to fight over to make a difference.

Perhaps some litigation outcomes would be more palatable than others. It is possible, for example, that the Supreme Court might rule unanimously - based on its interpretation of the new Help America Vote Act adopted by Congress - that states may choose to discard provisional ballots submitted by individuals who were never added to voter registration rolls because they omitted information required by state law on their voter registration forms. That sort of ruling, even if it were to cause Kerry to lose, might be accepted by the public as coming more from Congress's decision than the court's.

Contrast that possible result with one in which the court, by a 5-4 vote, either accepts or rejects - or even refuses to consider - an equal protection challenge to the process by which the names and addresses on provisional ballots are checked against the names and addresses on official registration rolls. This is the frightening prospect that we should most wish to remain hypothetical.