The unsigned per curiam opinion in Bush v. Gore is a shabby
piece of work. Although the justices who handed the election
to Bush - O'Connor and Kennedy - were afraid to sign their
names, the opinion unmasks them more nakedly than any TV
camera ever could. To understand the weakness of the
conservatives' constitutional argument, you need only restate
it: Its various strands collapse on themselves. And, because
their argument is tailor-made for this occasion, the conservatives
can point to no cases that directly support it. As Justices John
Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote
in their joint dissent, this "can only lend credence to the most
cynical appraisal of the work of judges throughout the land."
What, precisely, is the conservatives' theory? "Having once
granted the right to vote on equal terms, the State may not, by
later arbitrary and disparate treatment, value one person's vote
over that of another," they declare. The citation is Harper v.
Virginia Board of Elections, the case that invalidated the poll tax
in 1966 on the grounds that it invidiously discriminated against the
poor. But there is no claim here that Florida's recount law, shared
by 32 other states, discriminates against the poor. Indeed, Florida
argued that its scheme is necessary to avoid discrimination against
the poor, because a uniform system of recounting that treated the
punch-card ballots used in poor neighborhoods the same as the
optically scanned ballots used in rich ones would systematically
undercount the votes of poorer voters. By preventing states from
correcting the counting errors that result from different voting
technologies, the conservatives have precipitated a violation
of equal treatment far larger than the one they claim to avoid.
"The fact finder confronts a thing, not a person," write the
conservatives in a clumsy and perverse inversion of the famous
line from Reynolds v. Sims, the great malapportionment case,
which noted that "legislators represent people, not trees." But
things to not have constitutional rights. It is absurd to claim that
the "right" of each ballot to be examined in precisely the same
manner as every other ballot defeats the right of each individual
to have his or her vote counted as accurately as possible.
Were this theory taken seriously, many elections over the last
200 years would have violated the equal protection clause, because
they were conducted using hand counts with different standards.
The effect of the majority's whimsical theory is the fan the suspicion,
which now looks like a probability, that the loser of both the
popular vote and the electoral vote has just become the president
of the United States. At least the ballots can sleep peacefully.
The conservatives can rustle up only two cases that purportedly
support their theory that Florida's recount scheme gave "arbitrary
and disparate treatment to voters in its different counties." (Both
were written in the 1960s by liberal activist Justice William
Douglas, which must have given the conservatives a private
chuckle.) The first case, Gray v. Sanders, held that Georgia's
county-based scheme of assigning votes in the Democratic
U.S. senatorial primary discriminated against voters in urban
counties, whose votes were worth less than those in rural
counties. The same logic, applied to this case, would hold that
the Florida legislature could not adopt a county-based scheme for
assigning votes in presidential elections. But this conclusion is
completely inconsistent with the conservatives' earlier argument, the
one that emboldened them to stop the manual recount in the first
place: that Article 2 of the Constitution allows the Florida
legislature to structure its presidential electing system however it
chooses. The second case, Moore v. Olgilvie, held that
applying "a rigid, arbitrary formula to sparsely settled counties and
populous counties alike ... discriminated against residents of the
populous countires of the State in favor of rural sections." That
case, in other words, does not support the conservatives' claim that
ballots in rural and urban counties must be counted and recounted
in precisely the same manner. It suggests the opposite.
The reason the conservatives can find not a single precedent to
support their equal protection theory is because the theory is made
up for this case only.
