And certainly it is ironic that Justices Rehnquist, Scalia and Thomas, of all people, would embrace the Article II argument. Indeed, if there was ever a "political thicket" that the federal courts should avoid, it would seem to be a dispute between a state legislature and a state supreme court on a matter of state law concerning a highly-charged political election. Article II, Section 1 could easily be read as a purely structural provision that should be left, except in the most egregious of circumstances, to the States and to the political branches of government. Second, the Chief Justice's argument assumes that this is an appropriate matter for federal judicial review. This would be like interpreting the word "Congress" in the First Amendment-as in, "Congress shall make no law abridging the freedom of speech or of the press"-to mean that the First Amendment does not apply to the executive and judicial branches of the government, a hyper-literalist interpretation that no court has ever embraced. First, it places peculiar weight on the word "legislature," as if the framers of the Constitution had actually intended to draw a substantive distinction between the State, which is expressly empowered to "appoint" its electors, and the State's own legislature.
To make this argument, Chief Justice Rehnquist emphasized the word "legislature" in Article II, Section 1, and maintained that in its interpretation of the Florida election code the Florida Court had, in effect, inappropriately substituted its judgment for that of the Florida legislature.Īs the Justices who rejected this argument made clear, this is, at best, a novel construction of the United States Constitution. Gore, Chief Justice Rehnquist, joined only by Justices Scalia and Thomas, argued that the Florida Supreme Court decision violated this provision. He argued that the decision of the Florida Supreme Court allowing a recount of disputed ballots violated both Article II, Section 1 and the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.Īlthough I will devote most of my attention to the Equal Protection issue, the Article II issue merits at least passing notice, for although only three Justices found any merit in this argument, it has received some attention recently from conservative legal commentators in their efforts to rescue the Supreme Court's decision.Īrticle II, Section 1 provides that, in presidential elections, "each State shall appoint, in such manner as the legislature thereof may direct," the electors to which the State is entitled. Gore, candidate Bush challenged the Decemdecision of the Florida Supreme Court on two constitutional grounds. Equal Protection? The Supreme Court's Decision in Bush v.