Professor John Parry, University of Pittsburgh School of Law

I have been asked to provide some analysis of the briefs filed in Bush v.
Palm Beach County Canvassing Board. Given time constraints and the limits
of my expertise, I have decided primarily to give my impressions of the opening
briefs filed by Bush and Gore and to invite responses and additional
comments on these and the other filings in the case (replies, the supplemental brief, and the
briefs of amici and other parties). I should note that I voted for Gore and
sympathize with his arguments. While I make some attempts to be balanced,
my reading of the briefs reflects my political views.

The first thing I noticed was a strong difference in tone. The Gore brief
has an almost mild tone suggesting the reassuring reasoning of a wise
observer who wants to sort everything out for the justices. I haven’t read
enough of Professor Tribe’s briefs to know if this is his usual approach,
but I found it effective. The Bush brief is much more aggressive. For example, the brief mentions in several places that the manual
recounts are troubling because of the lack of uniform standards for
discerning the will of the voter. The brief paints a picture of chaos and
confusion and hints at improprieties. None of this, however, seems to be
properly at issue in the Supreme Court (the Gore Supplemental Brief gets at
this point). But even so, the discussion of these claims seems as much
designed to alarm the justices and to make the case for the Supreme Court’s
duty not just to rule, but to settle the whole business once and for all.

Ordinarily I have no trouble with this kind of aggressive approach (and I
don’t mean to say that the Gore brief is not aggressive in the substance of
its arguments). The tone of the Bush brief may have troubled me because of
its interaction with the substantive arguments, some of which in my view are
extreme. For example, the Bush brief refers to the Florida Supreme Court’s
rejection of “hypertechnical reliance upon statutory provisions,” as if this
alone is proof that the court made new law. The brief does not say that the
court drew this approach from prior cases — that is from the entire
pre-existing election law — statutes and interpretive caselaw of Florida.
The brief then goes on to characterize the court’s approach as one of simply
jettisoning the election statutes entirely and using “equitable power” to
write entirely new laws. But that is not what the court did. Instead — to
borrow the Gore brief’s phrasing — the court engaged in garden variety
statutory interpretation for the bulk of its opinion. I don’t know if the
court’s interpretations were correct, but nothing in the court’s application
of various maxims of statutory interpretation struck me as unusual. What
did strike me in the court’s opinion was the remedy section, where the court
shifted gears and explicitly employed its equitable power to craft a remedy.
Ultimately, I come out on the Gore side on this (as the Gore reply points
out, the new court-created deadline can be seen as favoring Bush more than
Gore), but I think it is a fair question whether the Florida court made new
law in this part of its opinion. But the earlier parts of the opinion are
not strikingly different from the kinds of statutory interpretations judges
engage in every day all over the country.

Perhaps the underlying ordinariness of most of the opinion explains why the
Bush brief proposes an extremely aggressive standard for determining new
law. In a surprising move, the brief claims that the new law standard of
Teague v. Lane — which applies to federal court habeas review of state
criminal convictions — should constrain state courts hearing claims
concerning the proper interpretation of state laws governing the selection
of presidential electors. Not only does Teague have little to do with the
task of statutory interpretation, but it is also intended to serve
federalism interests by protecting the finality and integrity of state court
decisions. Perhaps one could argue that the federalism argument runs the
other way when the issue is presidential elections, but the choice of Teague
seems forced and glaring to me.

My colleague Professor Arthur Hellman has suggested that contract clause caselaw could
provide a better standard for the new law inquiry. Under this approach, the
Supreme Court would “accord respectful consideration and great weight to the
views” of the Florida Supreme Court but would retain the ultimate power to
decide for itself whether the law changed. This approach leaves room for
the familiar idea that judicial interpretation of statutes is a legitimate
enterprise (and perhaps even foreseen by Congress under the plain language
of 3 U.S.C. sec. 5). The problem is that the result is far less clear under
such a standard than it would be under Teague v. Lane, and so the standard
lacks the punch that the Bush team must have felt it needed. (And the Gore
response, as discussed briefly below, is that there is no need for any
standard, because there is no new law issue under 3 U.S.C. sec. 5.)

Thus far, I have been attacking the Bush brief, and I should at least try to
be evenhanded. The Gore brief to my mind goes too far in its own
characterization of the Florida court’s opinion. True, most of what the
court did was “garden variety” statutory interpretation, but the remedy
section arguably strays out from the garden. Reading the Gore brief, one
gets the impression that the court did nothing except interpret the statute,
when in fact it made up a remedy based on its own conception of the policies
that should govern the secretary’s discretion and the interests of finality.
Of course, just as with the Bush brief, this characterization sets up later
arguments, in particular the very nice argument that the new law inquiry is
a non-issue under 3 U.S.C. sec. 5.

Another not entirely successful aspect of the Gore brief is the effort to
minimize the consequences of Florida’s potential failure to comply with 3
U.S.C. sec. 5. The Gore brief argues that sec. 5 was designed merely to
bind Congress to accept a state’s electoral votes if the state follows
pre-existing procedures for selecting electors — an argument with good
support in text and legislative history. Failure to comply with the statute
thus requires little or no judicial intervention, because Congress will
handle the situation by then deciding what to do. The Bush team argues
plausibly that resort to Congress is not on balance a good thing. The Gore
response is that leaving everything to Congress is no big deal. In some
sense the Gore team is correct; there is a process in place for dealing with
non-compliant states. But it is a process that is unfamiliar and inevitably
nakedly partisan. I have not spoken to anyone who thinks a congressional
decision about Florida’s electors would be a good thing. Like presidential
impeachment, it would be important and exciting but hardly desirable.
Indeed, as the Bush brief argues, we might then find ourselves in a
constitutional crisis. (Is there a settled definition of “constitutional
crisis,” or do we just know one when we see one?)

Rather than go on with additional impressions of the briefs, I want to stop
with one additional comment and a conclusion. First, the comment: there is
no need for me to discuss the Bush brief’s Article II argument because it is
manifestly without merit and is entirely demolished by the Gore brief.
Second, the conclusion: Gore ought to win, but the Court should not decide
the case at all if it cannot come close to unanimity.

November 30, 2000

John Parry teaches Constitutional Law at the University of Pittsburgh School of Law. He is a 1991 graduate of Harvard Law School.