Recalling Bush v. Gore

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So what was the three-judge panel of the 9th Circuit Court of Appeals really thinking on Monday when they decided to halt the California recall election and throw the whole state into turmoil? Commentators — busy counting the number of noses appointed by Democrats as opposed to Republicans — think this is more evidence of liberalism unplugged. But that’s only half the story.

InsertArt(2017130)THE PAPERS ARE full of op-eds busy doing the work of courts. Pundits point out ways in which the California punch-card debacle either differs from the posture of Bush v. Gore or mirrors it. Here are the detractors: The Supreme Court got involved after the fact whereas the 9th Circuit is meddling in advance. The Supreme Court objected to differing methods of vote counting as opposed to voting. The Supreme Court dealt with a national election, whereas the 9th Circuit is interfering with a state constitution.

Here are the defenders: The Supreme Court stood for the broad principle that similar votes could not have different weight, and that is all the 9th Circuit decision demands. These exercises are mostly Talmudic. As is the case with every legal precedent, arguments may be made to extend its reach to a new set of facts or to limit its reach to the facts of the original case. That is what judges do all day so that we pundits can nap and golf. The real problem with all this analysis is that the high court expressly disallowed this kind of application of Bush v. Gore as precedent. With its now-famous disclaimer, “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” the court explicitly limited the reach of the equal protection application to the 2000 election. The Supreme Court, seeking to wade into a political catfight yet indemnify itself from ever having to do so again, insisted that their holding was good for one ride only.


The problem was that it was only a one-way ride-in favor of George W. Bush, and a lot of enraged liberals have spent the intervening years grinding their teeth over the unfairness of it all. We couldn’t riot, we couldn’t hunger strike. And there was no opportunity for payback; no opportunity to really stick it to the Supremes for rigging the election and using bad law to do it. Until now.

There’s really only one way to read the panel’s decision from Monday. It’s a sauce-for-the-gander exercise in payback. Pure and simple. The panel not only refused to accept the Supremes’ admonition that the nation would not be fooled again; it refused even to address it. Applying Bush v. Gore again and again in the unanimous opinion, the judges told the high court that it has no power to declare a case a one-ride ticket and defied the court to step in again to tell them otherwise. (The court isn’t likely to step in, as many have now noted, because they cannot win if they do. By getting involved, they risk either looking corrupt and partisan if they reverse the decision or permitting the courts to legislate things like the distances between polling places and the pant-length for elections workers for all eternity.)

You can’t read the 9th Circuit panel’s decision without recognizing that it is neither brilliant nor subtle. The court did not need to halt the whole election to achieve electoral fairness. It could have enjoined punch cards, demanded all paper ballots, recommended more polling places, or punted back to the California secretary of state to suggest something other than the existing disparate systems. But the court went so much farther. They shocked the whole country by halting the entire recall.

Why? Reading the opinion, it’s hard to escape the fact that the court seems to take pleasure in applying the broad and indefensible legal principle laid out in Bush v. Gore even more broadly and indefensibly. This wasn’t just a liberal panel trying to prop up an embattled Democrat. The 9th Circuit isn’t necessarily political, even where it’s ideological. No, the more likely explanation for the panel’s decision is that the court, which has been ridiculed, reversed, and unanimously shot down by the Supremes at rates that exceed (although not by much) any other court of appeals, just wanted this one sweet shot at revenge. This time, said the panel, it’s personal.

Reading the opinion, you can almost hear the panel saying: “Hey, let’s not just halt this recall, let’s have a little fun with the thing!” The opinion includes a fond historical nod to voting with fava beans and the wry observation that punch cards are “intractably afflicted with technologic dyscalculia.” It’s tough to count the number of times the judges gleefully point out that the secretary of state is barred from defending the punch-card machines because he is already subject to a consent decree holding that they suck.


And the — by my count — 12 references to Bush v. Gore often carry the deliberate leadup: ”Hey! It’s just like the Supreme Court said in Bush v. Gore.” Now, maybe I’m wrong. Maybe the judges on the 9th Circuit haven’t been lying awake at night, wondering when they might finally have revenge on the high court for years of abuse and disrespect. There are ample other explanations for 9th Circuit nuttiness (and I know because I clerked there): The number of judges (26) and the fact that they sit in panels of three means that there is little predictability and less accountability for occasional wacky decisions.

There is the possibility — which I’d dispute — that 9th Circuit liberals are more liberal than other liberals, including liberal Supreme Court justices. There is the phenomenon known by child psychologists as “labeling theory,” wherein the little kid who always gets in trouble for standing in his cubby and pulling his pants down starts to do it because it’s expected of him. And there is the fact that the 9th Circuit, while willing to bind itself by existing Supreme Court precedent, is not interested in playing the game played by other courts of appeals — namely, trying to predict how the high court might rule in cases of first impression. If there’s no precedent, say the judges of the 9th Circuit, the buck stops here. Hence the Pledge of Allegiance cases, the marijuana cases, and the three-strikes cases.

But none of these explanations really offers the satisfaction inherent in my hypothesis: that the panel stuck it to the Supremes because it could. Just like the Supremes threw the 2000 election because it could.


The fun has to stop now, of course. The logic of the panel (and of the original Bush decision) would hold that any election with differing voting apparatus is inherently unconstitutional. And that renders every election, past and future, illegal.

That cannot be the law. Since there is no principled way to apply the law of Bush v. Gore, the Supreme Court should get its initial unprincipled request and see the holding limited to a one-stop ticket. But with the high court reluctant to step in and say that, it may be up to the en banc panel to clean up their mess. (Click here for an explanation of how their en banc process works.) Whether these 11 judges will join their comrades in lording it over the Supremes, or behave more judiciously than did the court itself in 2001, is really the question they must now face. “They started it,” isn’t an answer on the playground. It can’t be the answer on the bench.

Dahlia Lithwick is a Slate senior editor.