by Charles L. Zelden. Lawrence, KS: The University Press of Kansas, 2008. 416pp. Cloth. $34.95. ISBN: 9780700615933.
Reviewed by Michael R. Dimino, College of Law, Florida State University (Visiting Associate Professor); School of Law, Widener University. Email: mrdimino [at] mail.widener.edu.
With the presidency of George W. Bush at its conclusion, it has come time to evaluate from an historical perspective the farcical events that led to its beginning. Charles Zelden has done so and has produced a volume that is invaluable to scholars, students, and anyone interested in understanding the confusion and the litigation that surrounded the 2000 presidential election in Florida. Roughly the first two-thirds of Zelden’s text describes the problems with the administration of the 2000 election, and the efforts to correct them, marvelously noting facts and strategies, and giving the reader a sense of the people whose decisions and actions were crucial during that period. The text reads as a journalistic account, with the drama of a novel, but with circumstances that are stranger than fiction. Professor Zelden’s attempts in the last third of the book to critique the Supreme Court’s decision in BUSH v. GORE and draw lessons from that election, however, are more controversial and less valuable. In all, Zelden’s book is a worthwhile contribution to the literature on election law and BUSH v. GORE, because it aids the reader in understanding the motivations and actions of the candidates and their legal teams, though it does not purport to be a legal analysis (p.210) and is not convincing in its analysis of the motivations and actions of the judges who decided the case or in its suggestions for reform.
Because the attention of students and scholars naturally focuses on the two opinions by the United States Supreme Court, it is easy to overlook the scores of other cases filed to complain about the butterfly ballot, absentee ballot applications, overseas military ballots, etc., etc., which resulted in the parties arguing for looser, and then stricter definitions of valid votes (or vice versa), depending on which interpretation was believed to help the party obtain an advantage. Zelden does an excellent job of presenting these litigations in a readable format, allowing the reader to re-experience the excitement of the period while viewing the various cases in the context of an overall strategy employed by each camp. (For Gore, because he trailed in the initial vote totals, the strategy was generally to expand the definition of legal votes and to do so as quickly as possible. Bush, on the other hand, generally urged a strict interpretation of the laws governing a valid vote and sought to delay, hoping to change the initial vote totals as little as possible.)
A particularly handy appendix (pp.285-97) lists the events surrounding the election controversy chronologically. As Zelden notes, a thorough discussion of [*36] any one litigation requires the writer to relate events occurring over the space of time (including, for example, the arguments in both sides’ briefs, the trial-court decision, and the appeal), though in the kaleidoscopic events of those weeks, several other developments would have occurred during that space of time. Zelman’s narrative wonderfully tells the stories of those intermixed litigations, including the proper context while avoiding confusion. But to the extent that the narrative discussions leave the reader unclear, the reader may consult the appendix for quick assistance.
After summarizing the United States Supreme Court’s opinions in BUSH v. GORE, the book’s approach takes a significant turn. Whereas to this point the book had been content to describe the actions of the candidates, voters, election administrators, lawyers, and judges involved in Election 2000, Chapter Nine begins Professor Zelden’s analysis of the opinion and subsequent reforms, ultimately leading to Zelden’s conjecture about how a different opinion might have prodded the country to learn the “lessons” of BUSH v. GORE and adopt what Zelden considers to be worthwhile election reforms.
Finding the Court’s announced reasons for staying, and then ending, the recounts unconvincing, the text asks what could have induced Chief Justice Rehnquist, and Justices O’Connor, Scalia, Kennedy, and Thomas to act as they did. Unfortunately, however, the effort quickly devolves into an effort at amateur psychology, or (as Zelden more charitably describes it) “reasoned speculation” (pp.235, 279, 301). Thus, for example, he concludes that Justice O’Connor’s taste for individual self-reliance made her unreceptive to claims of voters who had failed to punch out their ballots’ chads completely (pp.218-19, 225-26). Similarly, Zelden supposes that Chief Justice Rehnquist was motivated by a desire to save the country from a “constitutional and political crisis” brought about by the Florida Supreme Court’s misreading of its state’s statutes, and that Justice Kennedy’s “moderate conservati[sm]” (p.220) led him to reject the Chief Justice’s “highly technical” (p.219) conclusion based on Article II of the Constitution that the Florida Supreme Court had overstepped its authority. While these explanations are, on the whole, plausible, there is little to support them. Judicial decisions are complex, and the motivations for individual judges’ decisions are quite difficult to ascertain when they do not coincide with the judges’ jurisprudential philosophies.
Zelden never explains, moreover, why he chose to focus on these “wider questions” of motivation (p.210) except to assert that such a focus is necessary to “understand the meaning and import of BUSH v. GORE and the entire 2000 presidential postelection controversy” (p.200). He is too quick to dismiss the importance of the fundamental question in evaluating any judicial decision: Was the decision correct, as a matter of law? Instead, he focuses on the correctness of BUSH v. GORE solely as a political matter, gauging whether it was the best way to achieve particular results (among them the installation of George W. Bush as president and the reformation of the nation’s electoral systems).
Indeed, though Zelden at times appears to leave the question of BUSH v. GORE’s [*37] correctness to others, at other times he treats the question as fundamentally unimportant or unanswerable. Thus, he states that “[a]ny answer we could arrive at [concerning the correctness of the decision] would depend too much on who was constructing the answer” (p.210) and concludes that all manner of varying judicial decisions from state and federal courts were “legitimate” (pp.118-19, 241) without ever offering us a criterion or definition of legitimacy. Zelden seems to consider a decision “legitimate” if it is plausibly correct, though he never says so explicitly.
I certainly would not argue that judicial questions can be definitively resolved, and that we all should be able to agree as to whether a particular judicial decision is correct or not. But the extent to which a decision is legitimate must relate to whether the decision and the methodology are right, by whatever criteria we individually assess them. Stated more simply, BUSH v. GORE is a problematic judicial decision only if, because, and to the extent that, it is wrong.
In the end, Zelden’s critique of BUSH v. GORE is not that it was wrong on the law or that it was politically motivated (he concludes that a variety of motivations likely contributed to the outcome, and that rank partisanship was not enough by itself to explain the Court’s actions). Rather, Zelden complains that the Court’s equal-protection rationale could have been phrased more expansively, and the Court could have used BUSH v. GORE – especially if the Court was able to maintain a seven-Justice majority invoking the Equal Protection Clause – to prod the country into changing the nation’s electoral systems (pp.279-83). Zelden suggests that permitting partisan officials to make determinations that shape elections and that therefore determine election results is antidemocratic and perhaps should be held unconstitutional. It is this capacity for partisan manipulation of the electoral system that Zelden identifies as the “hidden crisis in American democracy” to which he refers in the subtitle.
Nothing is new about these criticisms; Zelden cites reports recommending various reforms in complaining that the reports’ recommendations have, in large part, been ignored (p.251-52). The United States’ practice of having elections run by partisans has received scorn from commentators, and solutions such as non-partisan districting commissions have been suggested. But Zelden’s dream that BUSH v. GORE could have brought about these changes if it were written slightly differently is pure fantasy.
In the first place, Zelden’s belief that achieving a seven-Justice majority opinion would have been “eas[y]” is wrong (p.221). Yes, the per curiam opinion’s decision to stop the recount was an especially weak part of its opinion, and yes, a remand to the Florida Supreme Court to construct an appropriate standard for the recount would probably have been able to attract the votes of Justices Souter and Breyer, who found an equal-protection violation in the Florida Supreme Court’s ordering of the statewide recount but who objected to the majority’s decision to halt the recount entirely. But such a remedy would have driven away Chief Justice Rehnquist and Justices Scalia and [*38] Thomas. Those three Justices believed the Florida court’s decisions had so changed that state’s election law as to violate Article II’s requirement that legislators be chosen in a manner directed by the state legislatures. To permit the Florida Supreme Court to act again would have compounded the error, in the view of those Justices. Accordingly, had the per curiam opinion found an equal protection violation but sought to remand the case to permit Florida to conduct a recount under proper standards, there might have been four votes (Justices O’Connor, Kennedy, Souter, and Breyer) for such an approach, but three votes would have demanded an end to the election, and two others (Justices Stevens and Ginsburg) would have preferred to affirm the Florida decision. The result would have been a Court unable to render a judgment.
Even if there were a seven-Justice majority willing to call for electoral reform, I have no confidence at all that the Court’s opinion would have brought about the changes Zelden desires. Zelden does recognize that “the realities of partisan politics might have undermined reform” (p.281). Nevertheless, he draws on the Court’s efforts in dismantling de jure segregation to argue that the Court could have pressed the country to modernize its electoral system if it had issued “a mandate grounded in the Constitution” (p.280, see also 242). There is no reason, however, to expect success in such an endeavor when the Constitution itself contains no such mandate.
The uniqueness of the 2000 election may have made it possible to assert, as Justice Scalia has done, that “[c]ounting somebody else’s dimpled chad and not counting my dimpled chad is not giving equal protection of the law” (230), but it is not possible to believe that the Constitution as historically understood requires any of the sort of reforms that Zelden sees as beneficial. The Court distinguished some of them in BUSH v. GORE itself, concluding that localities’ decisions to use different voting technologies did not lead to the equal-protection concerns presented “where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards” (531 U.S. 98, 109 (2000)). Even more clearly, the Constitution has not been an effective impediment to partisan gerrymandering, though the practice is hundreds of years old (VIETH v. JUBELIRER (2004)). Still less has the Constitution stood in the way of elected officials taking part in the political process in other ways that could advantage one party or another.
Had the Court used BUSH v. GORE to issue a “call to arms” for electoral reform (p.280), the mandate would not have been “grounded in the Constitution.” Rather, the Court would have faced the same criticism it continues to face for issuing such a poorly reasoned opinion, and would have been criticized additionally for being brazen enough to urge an even more extensive remedy than the case required – based on nothing other than the political theory favored by a majority of unelected, unaccountable judges.
Furthermore, the idea that Justices should use court cases as means to alter public policy is a conception of the judicial role anathema to three of the Justices joining the majority opinion. [*39] Rather, it views the role of the judge in the Warren Court mold, in which perceived injustices were rooted out, and constitutional language and history were decidedly secondary. That this approach may have been the same one used (hypocritically) by the Justices in the BUSH v. GORE majority is reason to condemn that decision – not to lament that the Court’s holding was limited.
Zelden’s policy-oriented view of judicial decision-making is shown by his description of the purposes of a Supreme Court opinion. Zelden states that in addition to deciding the case, opinions should be “sweeping enough to convey the overall meaning of the Court’s ruling to nonlawyers,” and goes so far as to state that “the job of the Supreme Court is to produce order out of chaos and direction out of confusion” (p.180). Producing order out of chaos (whatever that means) has nothing to do with the job of the Supreme Court, and though a few high-profile cases will garner attention from the popular press, “the job of the Supreme Court” is to decide cases consistently with the requirements of law. If the question in a case turns on technical parsing of language in a statute or administrative regulation, a “sweeping” ruling unnecessary to the case before the Court would fail to respect the proper limits of the Court’s judicial-review power.
Zelden is especially concerned about the potential for election outcomes to be skewed in favor of Republicans through means that depress turnout among minorities, the poor, and other Democratic constituencies. Accordingly, he complains about such matters as requirements that voters present identification (a requirement upheld by the Court this past Term in CRAWFORD v. MARION COUNTY BOARD OF ELECTIONS (2008)); argues for the expenditure of millions of dollars to update voting systems, poll-worker education, and registration lists; and criticizes allegedly discriminatory purges from registration lists of persons thought to be ineligible to vote (pp.244-78). But of course the country is hardly united in Zelman’s call to action on these matters. Rather, democracy in the United States continues to carry a meaning different for everyone. BUSH v. GORE called national attention to a few problems – such as the use of punch-card ballots without criteria for judging votes cast by that method – that everyone realized needed to be fixed. To go beyond solving those problems to overhauling the entire “broken electoral system” (p.247) is to adopt a highly contestable idea of “the lesson” to be learned from the 2000 election.
The most interesting and the most pervasive theme of American election law is the interrelationship between elections and legislating: The political process determines who the legislators are, but the legislators determine the shape (and indirectly the results) of the political process. A course on election law must wrestle with that paradox, and must consider the proper place of the judiciary in such a scheme.
But just as we should be worried that the politicians in power can perpetuate their hold on power by manipulating elections, so can judicial decisions skew the results of the political process in favor of one party or one set of interests. Zelden believes judicial power should be exercised in favor of increasing participation and power of liberal voters, [*40] but he never explains why such actions would be any more appropriate (or any less partisan) than decisions by the other branches that advance partisan interests. The judiciary, as well as the other branches of government, can place a thumb on the scale in favor of one side or the other – just ask any of the Democrats who are still upset at BUSH v. GORE, or the Republicans who viewed the Florida Supreme Court’s decisions as disregarding statutory language when doing so improved the chances of a victory for Vice President Gore.
What BUSH v. GORE teaches is not just that election administration can have partisan consequences, but that election laws and their interpretation and enforcement are not politically neutral, regardless of the party or the institution responsible for making, interpreting, or enforcing those laws.
BUSH v. GORE, 531 U.S. 98 (2000).
CRAWFORD v. MARION COUNTY BOARD OF ELECTIONS, 128 S. Ct. 1610 (2008).
VIETH v. JUBELIRER, 541 U.S. 267 (2004).
© Copyright 2009 by the author, Michael R. Dimino.