The Big Fix
Jeffrey Rosen writes in TNR today:
It’s November 2, and the presidential election looks close in Ohio. An army of lawyers are dispatched by the Bush and Kerry campaigns to scour all 11,614 precincts in the state for any hint of voting irregularities. Within hours, both sides have filed competing suits in state courts challenging the standards for counting provisional, absentee, and military ballots, as well as for the use of different voting machines. Within days, Laurence Tribe and James Baker are filing petitions to the Supreme Court, arguing that Bush v. Gore–the case that decided the 2000 election–compels the justices to intervene. The justices, who once confidently predicted that Bush v. Gore would have no effect on future elections, are horrified. Even the Bush v. Gore dissenters are shocked at the mess the decision has created. After all, Justice Ruth Bader Ginsburg called Bush v. Gore a “one-of-a-kind case” as recently as February 2003 in a speech to San Diego law students, adding optimistically, “I doubt it will ever be cited as precedent by the court on anything.”
[…]
Unfortunately, the hopes that Bush v. Gore would fade from memory like an embarrassing dinner guest have proved to be wildly mistaken. And, if the election is close, the nightmare scenario described above seems all too likely to come to pass. During the four years since Bush v. Gore, the case has emboldened political candidates to file a tangle of litigation challenging election procedures in federal and state races–from the recall of Governor Gray Davis in California to the replacement of Senator Robert Torricelli in New Jersey. Moreover, in response to the legalization of politics that has followed Bush v. Gore, Democratic and Republican legal swat teams have been assembled to challenge the results of the 2004 presidential election if the vote in any state proves close enough to provide the margin of victory in the electoral college. And, even if the presidential election is not close, Bush v. Gore will continue to haunt congressional and local elections in November and beyond. “You could have dozens or even hundreds of cases filed on the Wednesday morning after the election,” says Jack Goldsmith of Harvard Law School. “Given the litigation opportunities in Bush v. Gore, you could have real, real uncertainty for many weeks and months, not only about national elections but about local elections. And it’s likely to get worse.”
If this came from anyone but Rosen I would think it was another of those Greenfield-esque parlor games in which they sit around on CNN for hours at a time in stultifying discussion of bizarre election scenarios that will never happen. But we’d be fools to ignore the fact that Bush vs Gore is a cancer that has the potential to metastisize very rapidly if this election is as close as we expect it to be.
If you haven’t had a chance to read the fascinating in-depth article in Vanity Fair this month about the Florida debacle in 2000, here are the (pdf) links to it— Part one and Part two. It opens with a conversation between two of the Supreme court clerks who seem to have had the exact same opinion that I forcefully espoused at a dinner party during the recount drama (as I imagine many others did throughout the country.)
Shortly after the presidential vote in November 2000, two law clerks at the United States Supreme Court were joking about the photo finish in Florida. Wouldn’t it be funny, one mused, if the matter landed before them? And how, if it did, the Court would split five to four, as it so often did in big cases, with the conservative majority installing George W. Bush in the White House? The two just laughed. It all seemed too preposterous. Sure, friends and relatives predicted that the case would eventually land in their laps, but that was ignorant, naïve talk — typical of people without sophisticated legal backgrounds.
A majority of the justices were conservatives, but they weren’t partisan; mindful of the Court’s fragile authority, the justices had always steered clear of messy political spats. Moreover, the very jurists who’d normally side with Bush were the ones most solicitous of states’ rights, most deferential to state courts, most devoted to the Constitution’s “original intent” and the Founding Fathers had specifically provided that the Congress, not the judiciary, would resolve close elections. To top it off, the Court rarely took cases before they were ripe, and the political process in Florida was still unfolding. “It was just inconceivable to us that the Court would want to lose its credibility in such a patently political way,” one of the clerks recalls. “That would be the end of the Court.”
Boy, was I ever wrong. And as you read the article the sheer partisan nature of the court’s involvement becomes even more obvious than we have previously known. The article goes on to show how Anthony Kennedy, widely considered dumb as a post and obsessed with his own grandeur, had been staffed by the right wing with a cadre of federalist society Hitler Youth who “guided” him the partisan direction Big Tony and the Chief wanted him to go. (Our gal Sandy, it turns out, was in the tank from the get-go.)
The Bush’s petition for certiorari – that is, for the Court to take the case?went initially to Justice Anthony Kennedy, whose task it was to consider all emergency motions from Florida, Georgia, and Alabama. For Kennedy, then 64, a man known to relish the pomp and circumstance of the Supreme Court and his own, often crucial role in close cases, weighing such a momentous matter must have been glorious indeed. Batting aside a Thanksgiving Day plea from the Gore campaign to pass on the case, Kennedy urged his colleagues to take it on, suggesting that the Court was absolutely the essential arbiter of such weighty matters. He conceded, though, that Bush faced an uphill struggle on the law. When Kennedy’s memo circulated, one flabbergasted clerk had to track down Justice John Paul Stevens on the golf course in Florida and read it to him over the phone. Under the Court’s rules, Kennedy needed only three votes beside his own for the Court to hear the matter. Quickly, the four others who make up the Court’s conservative block signed on: Chief Justice William Rehnquist, along with Justices Antonin Scalia, Clarence Thomas, and Sandra Day O’Connor.
[…]
As was customary, the Court did not detail how many justices had voted to hear the case, or who they were, and Gore’s lawyers didn’t really want to know. At that point, they felt a certain faith in the institution and in the law: it was inconceivable to them that the court would intercede, much less decide the presidency by a vote of five to four.
As you continue through this article you see that this was the problem for the Democrats throughout the recount period. It wasn’t cowardice, it was a naive faith in the rule of law. It was the last vestige of true, internalized belief that the American legal system was immune from naked, opportunistic partisanship.
Desperate for legal advice, Klain reached out to prominent firms in the capital of Tallahassee. He found little help. “All the establishment firms knew they couldn’t
cross Governor Bush and do business in Florida,” recalls Klain. And so he improvised,
pulling together a team headed by former secretary of state Warren Christopher, now a Los Angeles-based lawyer in private practice. Christopher, Gore felt,would imbue the team with an image of decorous, law-abiding, above-the-fray respectability.[…]
Unlike Christopher and company, Baker spoke to the press loudly and often, and his message was Bush had won on November 7. Any further inspection would result only in “mischief.” Privately, however, he knew that at the start he was on shaky political ground. “We’re getting killed on “count all the votes,” he told his team. “Who the hell could be against that?”
Baker saw his chance that Thursday, November 9, when the Gore team made a formal request for a manual recount in four counties: Volusia, Palm Beach, Broward, and Miami-Dade. Asking for a recount in these large, Democrat-dominated counties left the Gore team fatally vulnerable to the charge that they wanted not all votes counted, as Gore kept claiming in his stentorian tones, but only all Gore votes. Yet the Bush team knew full well that Gore could not have asked for a statewide recount, because there was no provision for it in Florida law. A losing candidate had 72 hours to request a manual recount on a county-by-county basis or wait until the election was certifed to pursue a statewide recount. The requests had to be based on perceived errors, not just the candidate’s wish to see recounts done. Certainly, Gore chose counties that seemed likely to yield Gore votes. But he chose them because that’s where the problems were.
Proper as this was by Florida election law, the Democrats?strategy gave Baker the sound bite he’d been seeking: Gore was just cherrypicking Democratic strongholds. It was a charge the Bush team wielded to devastating effect in the media, stunning the Gore team, which thought its strategy would be viewed as modest and fair.
Foolishly, Gore thought that being modest and fair still meant something. He was not prepared for a streetfight. And, looking back I realize that I wasn’t either. Like a green youth I didn’t believe they’d actually go that far. Even after the impeachment sideshow, an event that solidified my belief in the lethal, fascistic nature of the modern Republican party, I was not fully prepared for the no holds barred approach they would take in this situation.
It is what led me to the point at which I am able to say without any sense of restraint or caution that I would put NOTHING past them — even a staged terrorist attack. This is because every time I think they have some limits, they prove me wrong. As the old saying goes, fool me once shame on you, fool me twice…won’t get fooled again….
Gore and his team knew that the Republicans would fight with everything they had, but they still maintained some faith in the legal system to require basic fairness in something this important. And, even the most cynical of us thought that the egos of the Supreme Court justices would never allow them to make a purely partisan decision because history would remember them as whores.
If I had any political idealism left it died on the day that Antonin Scalia stopped judges from counting votes in Florida.
This article shows that fix was in from the beginning. Had Gore audaciously requested a statewide recount he would have been accused of not following the strict laws that required him to show problems in each precinct. It was always headed to the Supremes and once they took the case, the interviews with the Supreme court clerks show that there was never any question about who would win. It was always a decision in search of a rationale.
If Jeffrey Rosen is correct and dozens of lawsuits await filing in close races out there, all based on this ill-considered opinion, then we are likely to see a repeat. After all, the same five vote majority still sits on the court today. And like all the others who voted for this irresponsible, unqualified, incompetent boob in 2000, they are not likely to admit their mistake and vote otherwise this time out.
This time, we must operate on that assumption and prepare for a knife fight — in the courts and in the realm of public opinion. There are no rules other than winning.
I urge you to read the entire article. There is much more about the disenfranchisement of the black community and the shocking actions they’ve taken since then to supposedly update the voting system. (Kevin Drum has more on this latest.) With fine fellows like “Buckhead” working on the wing nut Voter Integrity Project, and Ashcrofts new intimidation tactics, this election could be very, very ugly.
Update: Via Suburban Guerilla, here is more on the suppression of black voters Jeb has planned for 2004.
