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The Kabuki Mask of Bush v. Gore |
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Nick Levin [View as PDF]
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111 Yale L.J. 223 (2001)
Is law merely Kabuki politics? Many critics consider the Supreme Court's recent foray into electoral matters, Bush v. Gore, as resounding evidence that it is, with concerns for equality and electoral deadlines constituting the "conservative" Justices' masks. These critics point to flaws in the equal protection argument, the "conservative" Justices' decision not to remand the case to determine appropriate vote-counting standards, and the irony of the pro-federalism Rehnquist Court's intervention in a state supreme court's interpretation of state law. They conclude that political animus must explain the result.
In this Case Note, I assume arguendo that the equal protection critiques are valid (even though some disagree ). I nevertheless seek to justify the Court's equal protection holding, not as correct on its own terms, but as a vehicle through which the Court addressed a likely First Amendment freedom of association violation. The real problem was not that the difference between standards was inherently too large but rather that political partisanship (i.e., viewpoint discrimination) may have caused it.
In particular, I focus on how the absence of specific standards guiding permissible legal votes--when the instrumental effect of a county's choice of recount standard was immediately apparent--provided counties with an opportunity to try to manipulate the election results. The risk of viewpoint discrimination arose because the county canvassing boards in predominantly Democratic counties, such as Broward (on which I focus in this Case Note), knew that Gore would lose if the pre-recount vote held. There was a substantial possibility that Broward's Democratic agenda may have caused it to choose a more lenient vote-counting standard in order "to maximize the number of recovered votes." Even if the resulting standard were applied equally to Bush and Gore votes (which I presume to be true), this partisan choice of standards would--for reasons that I explain--unconstitutionally restrict Bush voters' freedom of association by intentionally providing Gore with a relative gain.
Part I explains the bare-bones facts pertinent to this Case Note and briefly restates the Court's equal protection holding. Part II discusses the doctrinal underpinnings of freedom of association analysis. Part III describes how Bush v. Gore would have presented a unique but cognizable--and potentially meritorious--relative restriction of association.
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