Bush Versus Kerry.

BUSH V. GORE COULD HAPPEN AGAIN
Professor Thomas E. Baker
Florida International University College of Law

The Jurist Guest Columnist
Going into the presidential election with an uneasy feeling of d?j? vu reveals that the absolute worst thing about the Supreme Court's decision in Bush v. Gore is that it is stare decisis or precedent. That means it could happen again.

Suppose that history repeats itself in a closely-divided popular vote in the November 2004 election--a hypothetical that has to be taken seriously, given recent polling numbers and the lengthy list of contested states. Suppose that neither John Kerry nor President Bush has the necessary 270 vote majority in the electoral college and so the outcome depends on the electoral votes of a single state and suppose that once again that particular state--Florida or some other state--is simply "too close to call."

Under the law of every state, there is some procedure for a recount. Lawsuits and legal challenges would follow and there would be appeals to the state supreme court. The precedent of Bush v. Gore is that no matter how the state supreme court decides the case, Kerry v. Bush is going to be decided by the Supreme Court of the United States.

Before Bush v. Gore, jurists and academics would have confidently explained that the legal issues in a presidential election undergoing a contested recount were a matter of state law and the federal courts could not hear and decide the appeal in the first place, because the issues on the merits were nonjusticiable, i.e., political questions that were beyond the ken of Article III courts.

Indeed, in December 2000 the experts and the pundits were all over the newspapers and cable news shows predicting that the Supreme Court of the United States would not take the Florida case. That their predictions proved to be mistaken, that the Supreme Court took the case on appeal from the state high court--two times, no less--highlights how much Bush v. Gore changed election law and the Constitution.

Not a single one of the nine Justices seriously argued that the case should not have been heard because under the Constitution those issues were committed to the political process and therefore for the elected branches to resolve. Sure, the per curiam opinion said the decision was "limited to the present circumstances," but the not-so-far-fetched hypothetical is the identical situation. Sure it takes four votes to grant review in the Supreme Court, but Bush v. Gore itself is evidence that there will be four Justices willing to take the next case.