From my colleague Dan Lowenstein

[Volokh, Eugene]

        I thought I'd pass along an interesting perspective from my
colleague Dan Lowenstein, who's one of the top election law specialists in
the country.  Dan is a moderate Democrat -- he worked for Jerry Brown and
was Brown's appointee to be the first head of the state Fair Political
Practices Commission -- but I've generally found him to be refreshingly
trans-partisan.  This message was originally Dan's response to a query from
a nonlawyer colleague in another department here at UCLA.

> -----Original Message-----
> From: Lowenstein, Daniel [SMTP:lowenste at mail.law.ucla.edu]
> Sent: Saturday, December 09, 2000 6:30 PM
> To:   Election-law Listserver (E-mail)
>
        . . .

>         I can very easily understand your outrage at what the Supremes did
> today.  But to keep things in perspective, you should realize that
> partisans on the other side of the fence have exactly the save outrage at
> what the Florida court did yesterday.  Because I had mixed views of the
> Florida Supreme Court's action, I also have mixed views regarding today's
> action by the U.S. Supreme Court.  I have long been distressed by
> appellate judges being much too willing (in my opinion) to dictate public
> policy in a variety of areas, especially (because it is my specialty)
> related to election law.  Both courts seem to me to be guilty of this.
> Perhaps a broader portion of the public will learn from these that the
> slogan, "the rule of law," can sometimes be a mask for the exercise of
> political power by individuals who are not held accountable to the public
> through competitive elections.
>
>         What I liked about the Florida Supreme Court's decision, as a
> policy matter, was the requirement of a statewide recount.  What I didn't
> like about it was two things.  First, I believe it is fundamentally flawed
> by incorporating the results of the county boards' counts of Broward and
> part of Miami-Dade.  From what I could tell this morning, most of the
> counts were being held along much more objective lines, analogous to those
> used in Palm Beach.  To mix recounts held according to objective standards
> with recounts that appear to have been biased in two heavily Democratic
> areas, would not have been fair.  Broward and all of Miami-Dade should
> have been required to be recounted, under Judge Lewis' supervision.
>
>         The other and even more serious problem with the Florida Supreme
> Court's decision was the lateness of the hour.  I believe the odds were
> against the recount and subsequent legal proceedings, including another
> appeal to the Florida Supreme Court, being completed by the end of
> Tuesday.  There were four possibilities.  Two would have been fine: the
> count got completed and (a) Bush won or (b) Gore won.  The other two
> possibilities were that the counts would have only been partially
> completed.  In one of those, Bush would still have been leading.  That
> would have been okay, because it would not have been substantially
> different from the situation before the recounts began.  But the fourth
> possibility would have been that Gore was in the lead, but because of the
> incompleteness, Bush would still be the winner.  That would have been the
> worst imaginable situation.  Though there is much that I sympathize with
> in the Florida Supreme Court decision, the fact that it made the fourth
> possibility possible leads me to believe that fundamentally, it was a
> highly irresponsible act.
>
>         Also, because of that fourth possibility, I don't think the
> question of balancing the irreparable harms is as easy as you do.  I agree
> that the irreparable harm to the Gore campaign is momentous.  Indeed, I
> cannot now think of a plausible path to victory for Gore.  But it is
> plausible to believe that if they know they are going to overrule the
> Florida Supreme Court anyway, then it is better for them to do it now.
> Although that is a plausible view, it is not my view.  The reason is that
> if they had denied the stay and if the recount were completed and if Gore
> were the winner, then it would become extremely difficult for the Supreme
> Court to overcome that result.  The conservative majority might have
> foreseen that possibility and issued the stay in a kind of Ulysses and the
> Sirens strategy.  Ulysses' strategy was quite rational, but not
> necessarily the kind of behavior I look for in a Supreme Court justice.
>
>         None of this has anything to do with what (I think) I sent to
> Salon, which was that I thought the Florida decision was quite vulnerable
> under the federal constitution and statutes, as the U.S. Supreme Court was
> reading them.  That turned out to be true, apparently.  But I was somewhat
> surprised that they issued a stay.  And although, as the above indicates,
> I think there are a lot of other important considerations, I share your
> frustration at this count being called off.  Seeing those county officials
> and volunteers coming in on Saturday and doing their best to cope with a
> variety of difficult problems seemed like a little picture of America at
> its best.
>
>            Best,
>
>                Daniel H. Lowenstein
>                UCLA Law School
>                310-825-5148
>
>
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