Notre Dame Law Review
Could so many well-established scholars be wrong? Is it possible that Bush v. Gore is defensible, after all? The two pillars of the decision-the Equal Protection Clause justification for the merits holding and the "safe harbor" remedial ruling - indeed seem weak. The alternative merits view-that the Florida Supreme Court had engaged in statutory amendment under the guise of statutory interpretation, thus violating Article II of the federal Constitution-runs aground against the plausible (albeit not necessarily correct) readings of the state high court. If one agrees that these merits and remedial arguments are indefensible, then mustn't one agree with the critics and be compelled to view Bush v. Gore as a brazen act of politics masquerading as constitutional law? I think not. In my book, Understanding the 2000 Election, I offered a brief alternative justification for the merits holding of Bush v. Gore. I suggested that even if there is no Equal Protection Clause requirement that votes be counted (or recounted) in the same way across a state, and even if we reject the Article II arguments offered by concurring Chief Justice Rehnquist, there is still something deeply, powerfully, and constitutionally problematic about Florida's statutory system for recounting ballots. Simply put, the argument is this: In a long line of free speech and free press cases, the Supreme Court has invalidated statutes that give unguided discretion to local officials to pass on applications for parade permits and public space meeting licenses. This Article defends the merits holding of Bush v. Gore by analogy to the First Amendment cases involving political officials making determinations regarding rights of political participation without adequate statutory constraint. After describing the Bush v. Gore merits holding in Part I, the Article offers, in Parts II.A and B, a rare reexamination of the speech and press cases on which the analogy rests-the "Lovell doctrine," after the seminal case, Lovell v. Giffin. If one is to defend the merits holding of Bush v. Gore by analogy to the Lovell doctrine, one must first carefully understand what that doctrine is, and what it isn't. Thus, after setting forth some background, I correct a misperception that the parade permit cases are generally covered by the collateral bar rule, whether the permit was denied by an administrative official or whether the speech act in question was subject to a judicial injunction. doctrine is part of First Amendment overbreadth doctrine, allowing facial challenges by those constitutionally regulable, in part as a device to ward off the risk of chilling the speech of those who are not constitutionally regulable. After the detailed picture of the Lovell doctrine, we are ready, in Part II.C, for the analogy to the "voter intent" problem with the Florida statutes. Finally, in Part III, I turn to two important-and related-challenges, both initially proposed by Justice Stevens in his Bush v. Gore dissent. In the end, the case for analogizing the Bush v. Gore "voter intent" problem to the Lovell doctrine is powerful. Adopting this reading of Bush v. Gore would render it a powerful yet narrow precedent, invalidating only those state laws that give similar unguided discretion to elected officials to determine what counts as a vote, while leaving intact other "mechanical" statewide variations in vote tabulation. One ramification of this argument is that the Ninth Circuit's initial panel decision in the California gubernatorial recall case-holding, pursuant to Bush v. Gore, that mechanical county variations in vote tabulation violated the Constitution 22-was wrong on the merits.
Abner S. Greene,
Is There a First Amendment Defense for Bush v. Gore , 80 Notre Dame L. Rev. 1643
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/294