Lost at the Equal Protection Carnival: Nelson Lund's "Carnival of Mirrors."(response to Article in This Issue, P. 609)
Tribe, Laurence, Constitutional Commentary
Talk about losing sight of the forest for the trees! What I trust interests readers is what to make of the equal protection twist in Bush v. Gore, not an exchange of volleys between scholars. That exchange having descended from the trivial to the absurd, (1) I want to return to the substance of the equal protection issue that has perplexed Bush v. Gore's observers from day one. It is worth noting initially Professor Lund's inability to dispute the per curiam opinion's conspicuous failure to identify any individual voters, or groups of voters, who were treated unequally by the Florida Supreme Court's ballot counting scheme. Nor could he dispute my argument that the deviations present in the Florida court's recount order were characteristic of the degrees and kinds of deviations that a reasonable reading of Reynolds v. Sims and its progeny permitted. (2) Rather than engaging these arguments, Professor Lund has replied with a barrage of technical, literalist defenses of both his Carnival of Mirrors and the Court's opinion. I have space in this response to address only two of Lund's replies.
First is Professor Lund's assertion that the remedy in Bush v. Gore did not "foreclose the Florida court from ordering a new recount." (3) Lund is, of course, technically correct that the per curiam opinion didn't order the Florida Supreme Court in so many words to toss in the towel. (4) But anyone who could seriously depict the opinion as a mere suggestion that the Florida court consider it quits would fail to see the humor in the cartoon captioned: "'Shut up!', he explained." Even assuming the leeway the Court theoretically left open was real, the window it had failed to slam shut was hardly the sort of opening through which anyone would dare to crawl. To describe the opinion's languages as only encouraging an end to the dispute is a gross understatement. The Court's "time's-up!" decree readily explains why nearly every observer, including Vice President Gore, understood the decision to end the Election 2000 dispute. (6)
More fundamentally, the alleged December 12 "deadline"--cited by the per curiam opinion two hours before that midnight as the justification for finding that a uniform recount could not proceed--was not, as Lund suggests, the result of the Florida Supreme Court's "own ... questionable interpretation of the state statutes." (7) To the contrary, it was the U.S. Supreme Court that cobbled the deadline together from a variety of opinions that, viewed individually or collectively, could not support the proposition that Florida law--as written or as authoritatively construed--imposed a hard-and-fast deadline on the recount process. Justice Shaw, who dissented from the Florida Supreme Court decision that ruled in favor of Vice President Gore, explained that "December 12 was [never] a 'drop-dead' date under Florida law," but "was simply a permissive 'safe-harbor' date to which the states could aspire. It certainly was not a mandatory contest deadline under the plain language of the Florida Election Code (i.e., it is not mentioned there) or this Court's prior rulings."s And the prior opinions on which the Court explicitly relied merely discussed "the Florida Secretary of State's authority to reject late returns arising from a pre-certification protest action, not.., a court's obligation to stop a recount in a postcertification contest action. To mix these two actions is to confuse apples and oranges." (9) The U.S. Supreme Court was the only court to find "a legislative wish to take advantage of the 'safe harbor'" (10) in the relevant context of that contest phase.
Finally, even if the Florida court had explicitly read the December 12 date as a binding deadline, deferring to that "interpretation" contradicted the Court's equal protection holding. The Court did not deny the Florida court's conclusion on December 8 that hundreds of ballots had been lawfully cast under Florida law--evinced by partial and completed recounts (11)--yet were not tallied in Katherine Harris's certified count. …