Ned Foley: “Is Texas v. Pennsylvania an obituary for Bush v. Gore?”

The following is a guest post by Ned Foley, on the 20th anniversary of the Supreme Court’s decision in Bush v. Gore:

On the evening before the twentieth anniversary of Bush v. Gore, one of the most infamous Supreme Court cases in U.S. history (if hardly one of the most precedent-generating), the Court summarily disposed of the case that in some ways is the closest comparison to it.

            In Texas v Pennsylvania, this year’s case that most directly attempted to have the Court control the outcome of the presidential election—because it was a simultaneous challenge, joined by Donald Trump himself, to the electoral votes of four states, enough to make the difference in the outcome—the Court dismissed the case with a single substantive sentence: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

            Just imagine if twenty years ago, the Court had been equally dismissive of then-Governor George W. Bush’s efforts to overturn the recount ordered by the Florida Supreme Court, a single sentence something along the lines of “Petitioners have not demonstrated a sufficient basis for federal judicial interference with the State’s conduct of a recount in an election conduct pursuant to state laws and procedures.”  Who knows how history might have turned out differently?

            Perhaps nothing much would have changed; Bush still would have prevailed in the recount and thus become president, with all the implications that followed from his presidency, most especially the ill-fated Iraq war.  But maybe Gore would have won the recount—although that only would have set the stage for more contestation over the result, with Florida’s legislature appointing a rival slate of electors as it was already considering—with the dispute reaching all the way to Congress, and Gore having to decide whether he as Vice President would have to recognize Governor Jeb Bush’s authority to decisively certify the electors appointed by the legislature rather than the ones appointed pursuant to the court-ordered recount. That scenario, still resulting in George Bush becoming the 43rd president, would have set a different sort of precedent for how to handle these electoral disputes than the Court’s decision in Bush v. Gore.

            But Bush v. Gore appeared to judicialize the resolution of a presidential election. Insofar as Texas v. Pennsylvania emphatically refused to judicialize this year’s election, does yesterday decision effectively signal the death of Bush v. Gore? If so, it’s a lethal present for its twentieth birthday.

            My guess, and it can only be a guess given the brevity of yesterday’s decision, is that the two cases will sit side-by-side in uneasy tension until the next time the result of a presidential election gets litigated.  Until overruled, Bush v. Gore will continue to show that there is at least a range of issues, depending on when and how presented, that are susceptible to judicial resolution and could (at least conceivably) affect the counting of ballots in a way that would change the outcome of the popular vote in a pivotal state to determining an Electoral College majority.  At the same time, Texas v. Pennsylvania will now show that not every effort to undo the count of the popular vote in states that will determine the Electoral College outcome can be put in a form palatable to Supreme Court resolution. Next time, commentators will speculate whether a particular case is more like Bush v. Gore or more like Texas v. Pennsylvania—until the Court itself answers that question.

            The Court soon may add to the evidence that will affect this analysis. Still left over from all litigation about the 2020 election is the question whether Pennsylvania’s supreme court violated the federal Constitution by improperly deviating from the state’s statutory law concerning the delivery of absentee ballots. The Court may grant cert on this issue, although not in a way that would affect this year’s election, but instead to provide guidance for the future.  If the Court does say that the Pennsylvania Supreme Court violated the federal constitutional prerogative of the state’s legislature, the Court will be opening the door to a lot more litigation of this nature—as evidenced most clearly by the Texas case itself, where multiple versions of this claim were rolled into one omnibus lawsuit.  The prospect of opening that Pandora’s Box might be enough for the Court to keep it firmly shut, at least for as long as possible.

            But even if the Court decides to venture down this road, it would not necessarily want to do so in the procedural posture of deciding who wins the White House.  There would be a way to confine these claims to lawsuits brought before ballots are cast, analogous to the Purcell principle regarding the timing of election-related litigation. The only thing that remains true about Bush v. Gore twenty years on is that the Court is not especially comfortable picking presidential winners.

            Most assuredly, the justices feel better about themselves—and will have no regrets—having stayed out of Texas v. Pennsylvania, despite all of Trump’s jawboning about their need to get involved, compared to all the heartburn and regrets that Bush v. Gore caused as later admitted even by members of that Court’s majority.  

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