Maryland Law Review, Vol. 61, No. 3 (2002), pp. 711-738


This Article puts aside the equal protection rationale on which the majority relied in Bush v. Gore. We share Richard Epstein's view that "[a]ny equal protection challenge to the Florida recount procedure quickly runs into insurmountable difficulties." In our view there is a more compelling argument to support the ruling. It begins with Chief Justice Rehnquist's concurring opinion, which focused on Article II, Section 1, Clause 2, of the United States Constitution. Clause 2 provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct" electors for President and Vice President. The critical issue in Bush was whether the Supreme Court of Florida's interpretations of the Florida election statutes violated this provision, not whether it violated the Equal Protection Clause. Rushed for time, none of the Justices addressed this novel constitutional issue in a systematic way. Though the concurring and dissenting opinions in Bush disagree sharply on the merits of the underlying case, they appear to share a common premise as to how Article II ought to be interpreted. Both agree that Article II assigns the task of making presidential election rules to the legislature and forbids state courts from taking that power for themselves. While we begin with the Chief Justice's emphasis on Article II, we do not endorse his "state separation of powers" reasoning. In Part I we argue that it is a mistake to treat Article II as a device for protecting state legislatures from state courts. The problem with this interpretation of Article II is that state legislatures have ample means to protect themselves without the assistance of the federal courts. Part II makes the case for an alternative, novel reading of Article II, one that is not developed in the opinion of any of the Justices nor in the scholarly commentary that has appeared in the wake of the decision. In this alternative view, Article II serves as a guarantee that election rules are put in place before the election, so as to minimize the problem of self-dealing by partisan officials (whatever posts they hold) who know how their rulings will affect the outcome. Part III applies this principle to the Florida election case and defends the United State Supreme Court's ruling.