Florida 2000: The Sequel
Five ways the election could end up in court, again.
Nightmare Scenario No. 3: Litigation Over Colorado's Amendment 36
On Nov. 2, Coloradans will consider Amendment 36—a voter initiative—that, if passed, will change the way that Colorado's nine electoral votes are allocated from a winner-take-all to a proportional system. This initiative unambiguously states that it is intended to apply to this year's presidential election. So, the winner in Colorado could end up with 4 or 5 votes rather than 9, and the election could then hang in the balance over a technical legal question: whether Amendment 36 can properly apply to this election.
The major parties so far have stayed out of this particular dispute, but a businessman has just filed suit in federal court claiming that the retroactive nature of the amendment violates the constitutional right to due process (a somewhat dubious argument) and putting forth the more serious argument that Amendment 36 violates Article II of the Constitution, which vests the state legislature with the power to pick the rules for choosing constitutional electors.
The Article II argument was one that appealed to the three most conservative justices on the Supreme Court deciding Bush v. Gore. They believed the Florida Supreme Court's recount rules made new law (rather than interpreting old ones) that violated the Florida legislature's power to set the rules for choosing electors. Last June, in a case emanating, ironically, from Colorado, Chief Justice Rehnquist and Justices Scalia and Thomas reaffirmed their position, asking for a hearing on the question of whether the Colorado Supreme Court usurped the Colorado Legislature's power to set the rules for congressional redistricting. There are some old precedents on the meaning of "legislature" that may be relevant, but their application to the Colorado scenario is unsure. If the issue made it to the Supreme Court, the final call likely would come down to—surprise!—the votes of Justices Kennedy and O'Connor.
Given the recent Colorado case, the Colorado Supreme Court would be unlikely to sympathize with the Article II argument, should Amendment 36 pass and the legal challenges go forward. Republicans' best hope might be federal court litigation, where a more conservative Tenth Circuit Court of Appeals could consider the issue, and potentially spare the Supreme Court the choice of overturning yet another state supreme court and handing another election to Bush.
Nightmare Scenario No. 4: Electoral College Woes in Congress
With such a closely fought election, we could see an Electoral College tie. The 12th Amendment provides rules for breaking such a tie (the House votes, with each state getting one vote). There may also be disputes over the counting of Electoral College votes (for example, what if we have a "faithless elector" who is pledged to one candidate but wishes to vote for another candidate?). And there are also questions about whether the federal law governing Electoral College disputes—the Electoral Count Act—is clear enough to deal with any controversy and whether it is constitutional in the first place.
One might think Electoral College issues are for Congress, and perhaps the states, to resolve, and not the courts. But one unambiguous lesson following Bush v. Gore is that the Supreme Court will not be afraid to step in, if a court majority perceives a need to avert a national "crisis."
Nightmare Scenario No. 5: Terrorist Attack That Disrupts Voting
This is the true nightmare scenario. In a forthcoming article in the Election Law Journal, John Fortier and Norman Ornstein consider the myriad ways terrorists could disrupt our elections. Consider just one of them—an attack in a major city in a battleground state, making it physically impossible for voters to get to the polls in part of the city, although voting can take place in the rest of the state and country.
Should the election be postponed, as New York's primary was postponed on Sept. 11, 2001? Most of the battleground states do not have a statute in place to deal with an Election Day delay, and Congress has done nothing to put any rules in place to deal with such a catastrophe either, assuming (a big assumption) that Congress has the power to do so.
If the election should be postponed even in the absence of a statute, as was done in New York City, how broad should that postponement be? Such a question inevitably would end up in the courts.
We all hope that none of these nightmare scenarios come to pass. Planning ahead of time could have lowered the risk of electoral meltdown; none of the above scenarios was unforeseeable. But for the most part, that planning either didn't happen or wasn't complete. We can't eliminate the possibility of a terrorist attack, for instance, but we could have had each state put a plan in place to deal with emergencies on Election Day. Congress could have written the provisions of HAVA more clearly and appropriated money sooner to change voting technology. Proponents of the Colorado amendment could have made it applicable only for future presidential elections.
In the meantime, we are left with nothing to cling to but the election administrator's prayer: Lord, let this election not be close.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.