Showing papers in "Florida State University Law Review in 2001"

Bush v. Gore and the Future of Equal Protection Law in Elections

Abstract: The Supreme Court's per curiam majority opinion in Bush v. Gore held that a state violates equal protection when its fails to have uniform standards for the recounting of votes during a statewide election contest. Part I of this Article argues that although some have heralded the opinion as the (perhaps unintended) dawn of a new era in the jurisprudence of equal protection in elections, there are good reasons for doubting that the Supreme Court majority intended anyone to take their equal protection holding seriously. Language in the per curiam opinion limits it to the facts of the case, or, at most, to cases where jurisdiction-wide recounts are ordered. Moreover, the Court's own analysis was superficial. It failed to explain or justify its large extension of precedent; it ignored serious standing questions; and, most importantly, the Court appeared to speak the language of strict scrutiny but apply something much less than strict scrutiny. Finally, the kind of equal protection claim favored by the conservative justices in the Bush v. Gore majority is a strong departure from the usual equal protection jurisprudence they favor.Part II of this Article considers not whether the Court meant what it said, but rather what would be the consequences if the Court indeed meant what it said. The equal protection jurisprudence of Bush v. Gore moves election law jurisprudence to an uncharted third level of political equality - equality in the procedures and mechanisms used for voting. Part II explores a range of election law cases that may be subject to a "third level" political equality claim. It concludes that, if the case were taken seriously, Bush v. Gore would have great precedential value in changing a host of voting procedures and mechanisms, particularly when challenged prospectively. Part III of this Article explores the benefits, costs, and implications of expanding equal protection to such third-level claims. The benefits of the approach are fairly obvious: a precedent requiring scrupulous equality in the holding of elections will increase resources used to conduct elections. But expanding political equality to the third level would be a mixed blessing. Putting aside costs, three concerns arise with extending equal protection jurisprudence to the nuts-and-bolts of elections. First, third-level claims provide a new reason and a pretext for federal courts to nullify state and local election results. Second, third-level claims undermine federalism. Third, third-level claims create a disincentive for jurisdictions to experiment with new methods of voting, such as internet voting.Finally, it is worth thinking about the doctrinal implications of extending equal protection jurisprudence to the third level. It is unclear whether extension of equal protection to the third level differs meaningfully from arguments calling for greater political equality in terms of electoral structures (such as Justice Marshall's argument in his dissent in Mobile v. Bolden) and financing election campaigns (such as the arguments of Jamin Raskin and John Bonifaz).

The Electoral College, The Right to Vote, and Our Federalism: A Comment on a Lasting Institution

Abstract: I. LOOKING TO HISTORY 883 II. THE ELECTORAL COLLEGE IN MODERN TIMES 892 A. The Good College 893 B. The Big, Bad College 895 1. Faithless Electors 895 2. Inspiring “Respect & Acquiescence” 897 3. Ideological Purity, the Minority President, and Contingencies 899 4. Unit Voting 903 a. The Electoral College and Third Parties 904 b. The Electoral College and Voters of Color 905 III. ELECTIONS AND LEGITIMACY 908 A. Our Federalism 909 B. The Reapportionment Revolution and the Right to Vote 915 CONCLUSION 922 APPENDIX 923

The Concept of National Law and the Rule of Recognition

Abstract: It is a commonly held position that a rule cannot be a legal rule unless it is binding; or to put it differently, that one element that distinguishes legal rules from other kinds of rules is that legal rules are regarded as binding by duly constituted officials - typically, courts - who are called upon to apply them. Similarly, it is an often-held position that the law consists of the rules of a jurisdiction that are duly enacted or adopted by officials who have the power to make rules that are binding in the jurisdiction. The thesis of this article is that both positions are incorrect. I begin by developing a concept that I call national law. The concept of national law is that there is a body of law in the United States that is made by officials across jurisdictions, legal scholars, and scholarly institutions, which constitutes law despite the fact that it is not binding in, and is not necessarily made by, officials of a deciding jurisdiction. Examples of national law are the rules that a donative promise is enforceable if relied upon, that an acceptance is effective on dispatch, and that the remedy for breach of a bargain contract is expectation damages. National law is law because, as I show, under the practice of the legal profession, particularly the courts, the rules of national law (and not simply the reasons for those rules) are invoked as legal rules of decision. Next, I take the concept of a rule of recognition as a postulate, and develop the following four principles concerning the meaning, application, and scope of that concept, which are independent of, but exemplified by, the concept of national law: (1) The social group that must accept a secondary rule for the rule to constitute a rule of recognition is the legal profession, rather than simply judges and other officials. (2) Whether the legal profession accepts a secondary rule as a rule of recognition can be determined by examining the kinds of primary rules that are invoked by the profession as legal rules in resolving legal issues in general, and deciding cases in particular. (3) A rule can be a legal rule even though it is not binding. (4) In the United States, law is made not only by judges and other officials of the deciding jurisdiction, but also by the national judiciary, legal scholars, and professional institutions (in particular, the American Law Institute).

The Supreme Court, Bush v. Gore, and Rough Justice

Abstract: I. BUSH V. GORE AND ROUGH JUSTICE 789 A. Bush v. Gore’s Pursuit of Rough Justice Was Not Unprecedented 791 1. New York Times Co. v. Sullivan 791 2. Henry v. Mississippi 794 B. Supreme Court Intervention in Bush v. Gore Was Appropriate 796 II. DID THE COURT REACH THE RIGHT RESULT? 800 A. The Ruling for Bush Was Necessary to Avoid a Constitutional Crisis ...... 800 B. The Gore Forces Were Manipulating the Recount 804 C. The Florida Court’s Decision Required Reversal 805 CONCLUSION 808

A Place at the Table: Bush v. Gore Through the Lens of Race

Abstract: I. COUNTING VOTES AND ASSUMPTIONS ABOUT DEMOCRACY 473 II. MERITOCRACY THROUGH THE LENS OF RACE 479 A. Race Exposes the Shortcomings of the Merit-Based Vision’s Individualized Focus 479 B. Race Exposes Particular Expressive Components of Merit-Based Vision .. 484 III. MERIT AND THE EXCLUSION OF US ALL 489 CONCLUSION 491

Institutional Lessons from the 2000 Presidential Election

Abstract: Although scholarly and media attention in the wake of the presidential election of 2000 has focused primarily on its unusual aspects, such extraordinary events also lead us to analyze aspects of our legal and political systems that we tend to take for granted when elections run smoothly.1 Among the latter set of lessons that can be drawn from the contest between George W. Bush and Al Gore are conclusions about the dynamic and complex relationships among our institutions of governance. In this Essay, I will discuss two related issues of institutional design and institutional choice that have applicability beyond the most recent presidential contest. First, the Bush-Gore election concretely illustrates that institutional design is a crucial consideration in determining which part of the government is best suited to render particular decisions. When institutions must become involved in majoritarian political decisions such as the selection of a President, it may be better to rely largely on the political branches than on the judiciary for several reasons. This allocation of decisionmaking authority is preferable because of the greater democratic credentials of Congress. As Justice Breyer put it in the context of the 2000 election, “Congress, being a political body, expresses the people’s will far more accurately than does an unelected Court. And the people’s will is what elections are about.”2 In addition, there is a less-often recognized advantage of institutional design enjoyed by the legislature. In some cases presenting highly charged political questions, the legislature can adopt procedural frameworks to shape decisionmaking and restrain partisan opportunism before a particular controversy arises. In the case of the 2000 election, the United States Congress actually had a framework in place that would have allowed it to handle any challenges to the