Richard L. Hasen, Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar

61 Fla. L. Rev. 979 (2009) | | | |

INTRODUCTION :: Akhil Amar begins his impressive Dunwody Lecture by questioning whether there “are any new things left to say about the Bush-Gore episode.” 1 It is a legitimate question to ask, given the torrent of scholarship since the 2000 Florida debacle. In some ways, Professor Amar follows the well-trodden path of liberal critics of the U.S. Supreme Court’s opinion in Bush v. Gore in arguing that: (1) the Florida Supreme Court did not violate Article II of the Constitution when ordering a partial recount of votes; (2) the U.S. Supreme Court majority failed to respect Congress’ role in resolving disputes over Electoral College votes; (3) the Court’s equal protection holding which ended the Florida recount promoted inequality, rather than equality; and (4) Chief Justice Rehnquist and Justices Scalia and Thomas voted strategically in support of the per curiam opinion’s equal protection holding because of the bad press that would come from having “a majority of Justices in fact reject[ing] each of the only two theories put forth by the Bush campaign to end the recount.” Professor Amar’s arguments, though convincing to me, are unlikely to convince supporters of the U.S. Supreme Court’s decision in Bush v. Gore.


However, Professor Amar’s lecture makes a much broader point, one that has resonance for future election disputes well beyond debate over the legacy of Bush v. Gore. Drawing from the writings on all sides of the debate, Professor Amar teases out a consensus against lawlessness in the resolution of election disputes. That is, Professor Amar shows that everyone agrees elections should be decided as nearly as possible under the “rules of the game” put in place on election day, and that it is illegitimate to change (or “twist”) the rules after the election ends. Where people part company in the Florida 2000 dispute is over what the rules of the game actually were on Election Day 2000, and who was more guilty in changing those rules after the fact-the Florida Supreme Court or the U.S. Supreme Court.

This consensus against lawlessness in resolving disputed elections is a profound point, and one that can be used to help avoid future Bush v. Gore-like debacles. In this brief response to Professor Amar’s lecture, I aim to do three things. First, I show why, even though there is consensus about the lawlessness principle in the abstract, consensus can never be reached about who was right in Bush v. Gore despite Professor Amar’s impressive arguments. Second, I show how the lawlessness debate replayed itself in the contest over the winner of the 2008 U.S. Senate election in Minnesota. Finally, I argue that an understanding of the lawlessness principle can be used to help avoid similar debacles in the future. In particular, disputes over election outcomes may be curtailed through statutory interpretation instructions directed to state courts which are passed ex ante by state legislatures and through increased centralization of election processes.

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