Bush v. Gore and the Relationship between Rule of Law and Democracy

Bo LI

Perspectives, Vol. 2, No. 3

After Bush v. Gore was decided, some observers raised an interesting question regarding voting methods. If the U.S. Supreme Court requires a uniform standard for counting and recounting votes, why didn't it require a uniform method of voting? We all know that several different methods of voting were used by different counties of Florida. Why isn't this arrangement a violation of the equal protection clause?

The Court's ruling was based on two grounds: the equal protection clause of the Fourteenth Amendment to the U.S. Constitution and the due process clause of the same Amendment. The following is the text of Section 1 of the Fourteenth Amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Basically, Section One of the Fourteenth Amendment to the federal Constitution prohibits any state of the Union from violating basic human rights without due process of law, and from discriminating against any group of people in areas of important concerns (such as in voting, in public education, etc). This Amendment is an important way through which the federal government enforces the values of basic human rights and equal protection on state governments.

The equal protection clause does not require the "same" treatment; it only requires that various treatments be constitutionally equal (i.e., they do not result in unfair discrimination against any group of people). In the case of voting, it is fine that one county uses punch cards while another county uses computer voting, as long as each voting method is constitutionally sufficient (i.e. no denial or inhibition of people's freedom and opportunity to vote) and different voting methods do not result in unfair discrimination against any group of voters. A de-franchised voter (i.e., a voter whose vote was not counted) in a county where punch cards were used could conceivably challenge the election result in four ways (two against the method of voting, two against the method of counting the votes): first, there is a due process violation in the voting method because the punch cards are not a constitutionally sufficient way of voting; second, there is an equal protection violation in the voting method because punch cards are much less sufficient and much less fair than voting methods used by other counties (such as computer voting) so as to amount to constitutionally "unequal" treatment; third, there is a due process violation in counting/recounting the votes because the Florida Supreme Court ordered a recount without a uniform standard (i.e., without due process of law); and fourth, there is an equal protection violation in counting/recounting the votes because similarly punched cards are counted differently because there was no uniform standard for counting under-votes (either within the same county or across two different counties). I think few lawyers would challenge the election result based on the first two grounds, because the error rate of punch cards cannot be said to be constitutionally excessive and, as such, punch cards cannot be labeled as a constitutionally insufficient way of voting. As to the third and the fourth grounds, however, this happy voter will succeed because it is precisely what the Court decided in Bush v. Gore.

I think the Bush v. Gore case showed several things. First, it showed the enormous respect for laws (and for the court) in the U.S. When the Florida Supreme Court reversed the District Court's decision and ordered a recount, the recount resumed in an orderly fashion. When the U.S. Supreme Court accepted Bush's appeal and ordered a stay of the recount one day later, the recount stopped immediately and orderly. There was no resistance at the counting site. No army was used. No force was used. It was very remarkable if we consider how many other countries in this world could achieve this feat. This showed the power of, and the enormous respect for, laws in the United States. Gore's concession after the Supreme Court's decision was another example of the supremacy of law in this country.

This case also showed the limits of the rule of law. When reasonable people agree on some general rule, that rule should be in control even if it is not a written law. When reasonable people differ on certain general point, it is the limit of the rule of law. In theory, the way to resolve these reasonable differences on general rules is through a democratically accountable process with the majority rule, not by non-elected judges who are not democratically accountable. However, there is also a limit to democracy. Who is to decide the procedure of democracy? You may say it is also people because people can fix the procedure ex ante. What if something unexpected happens? Well, you may say that it should be resolved in a democratic way, but the problem is that for every unexpected problem, there are thousands of subsequent unexpected problems, and reasonable people could always differ on how the unexpected problems should be resolved. As such, it is infeasible to have a general vote on every problem that would surface. As such, there are two ways to resolve most unexpected and contentious problems in a democracy with the rule of law: the first is to let the representatives of the people (the legislature) decide, and the second is to let the court decide. No matter who decides, the contested issue will necessarily be decided in a political, not legal, fashion because, by definition, reasonable people differ on these issues. It is no longer a strictly logical process; it is also a process of ideological battle. This process, I submit, lies in the large gray border between democracy ("people's will" as interpreted by legislators, or the rule of person) and the rule of law ("pre-fixed rules as interpreted by judges"). Obviously, in Bush v. Gore both the legislature and the court were involved, and there was the danger of clash between these two branches of the government.

The desire to have a popular government that is reflective of popular will (democratic rule of person), on the one hand, and the desire to have order, stability and justice (the rule of law), on the other, can sometimes conflict with each other. Bush v. Gore is a case where these two desires clash. In order to know what the popular will is, it is important to have an accurate count of each voter's vote. However, if there were no rules regarding how to count, when and how a recount can be requested and granted, how to conduct a recount, when all counting and recounting have to stop, and what standards each counting/recounting procedure must meet, then democracy would not work because there would not be order, stability or predictability. Bush v. Gore basically says that, first, the recount as ordered by the Florida Supreme Court did not meet two standards that all counting/recounting procedures must meet (the equal protection clause and the due process clause of the Fourteenth Amendment); second, any constitutionally valid recount would not make the deadline as interpreted by the Florida Supreme Court (December 12). Both the equal protection/due process clauses and the counting/recounting deadlines are pre-fixed rules and in this case, as usual, pre-fixed rules trumped the desire to have a more accurate count of popular will. Although reasonable people could differ on the question of whether equal protection/due process clauses were indeed violated or on the exact deadline for all counting/recounting, there is another important pre-fixed rule: when the highest court of the land reaches a conclusion regarding certain legal issue (such as the equal protection/due process issue and the deadline issue in Bush v. Gore), people must accept it. In a democracy with the rule of law, we cannot give certain politicians the opportunity to use "popular will" as an excuse to invalidate pre-fixed rules and to ask for the retroactive application of a new rule. Rules can change according to generally accepted procedures (such as through democratic procedures), but new rules can only be applied prospectively, not retroactively. Otherwise, democracy won't work.

Another way to view the relationship between democracy and the rule of law is that, since democracy cannot work without sticking to pre-fixed rules (i.e., the rule of law), how to make rules binding? Obviously, voters or legislators cannot bind their own will: they can always throw away old rules and make new rules through democratic processes. This creates the danger of ex post facto law: the voters or legislators may adopt rules after the fact and apply them retroactively. The only way to make rules binding and to prevent the problem of ex post facto law is to let an independent court to be the enforcer of rules. Once certain rules have been established through generally accepted procedures (such as through democratic procedures), the court will make sure these rules are binding on people's behavior, until a valid new rule is adopted through certain generally accepted procedures. In this sense, the court is a disinterested enforcer of rules, and the rule of law (i.e., sticking to pre-fixed rules) is possible only when an independent and disinterested court has a generally accepted power to enforce established rules.

How to reconcile with the fact that judges do have ideological and political biases? I think the remarkable thing about American democracy is that judges' ideological and political biases have already been factored into the system, and people accept them as an unavoidable evil. This can be a typical thinking process of an American citizen: "Sure, judges are ideological and political animals. But who is not? With the system of separation of power, with a life time tenure for judges (whose salaries according to the U.S. Constitution can only increase during the tenure), with a system where judges are not elected officials so are not worrying about campaign contributions or pleasing special interest groups, with the checks and balances in the process of selecting/nominating/confirming judges, with the strict press and academic scrutiny, and with a strong reputation mechanism, the court is at least the least political and least ideological place in our government, and the judges are most likely to use logic and reason instead of politics to decide cases. Since we need a final arbiter on questions of law, why should we give that power to any branch of the government other than the court? The court's decision is final not because it's always the 'right' decision, but because we are willing to accept it as the final decision. Sure the court might hand out some ideologically or politically divided decision once in a while, we trust that by and large this least political and least ideological branch of the government is the best place for meting out justice and providing order. In addition, whenever there is such a politically charged decision by the court, our unforgiving professors, jurists, journalists, political activists and popular press will not spare their ink, time, energy and clout to try to criticize and punish the judges, just like what is happening right now after Bush v. Gore."

A couple of observations are due. First, the Bush v. Gore decision was actually not strictly politically divided. The equal protection holding obtained seven votes (out of nine Justices), including two liberal Justices and five conservative Justices. That is, seven out of nine Justices agreed that the recount as ordered by Florida Supreme Court violated the equal protection clause of the Fourteenth Amendment. There was more disagreement only regarding whether the December 12 deadline is a firm deadline. Second, a lot of criticism has been launched against the conservative Justices on the Court, but it could be that the liberal Justices were more partisan than the conservative ones. Remember when the stay was issued last Saturday, it was five to four -- all four liberal Justices were against the stay. However, when it came to the question of equal protection, two liberal Justices joined the conservative Justices. If the strength of the equal protection holding is indicative of what is logically and legally correct, then it is more likely that some liberal Justices might have been partisan (meaning, party politics were used instead of logic or reason) when the stay was issued last Saturday.

The fact remains that the court's reputation is harmed every time when the court hands out an ideologically or politically charged decision, especially in a case as politically contentious as Bush v. Gore. How serious is the harm this time? Probably it is more serious than a typically divided case, but not serious enough to shake the constitutional system of the United States.

(The author is an attorney at the New York law firm of Davis Polk & Wardwell.)