Law Commons^™

Article Ii And The Florida Election Case: A Public Choice Perspective, Michael L. Wells, Jeffry M. Netter

Scholarly Works

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 …

Were There Adequate State Grounds In Bush V. Gore?, Michael L. Wells

Scholarly Works

Few Supreme Court decisions provoke the immediate and intensely negative verdict that law professors passed on Bush v. Gore. Some of the criticism is deserved. Others have questioned whether the ruling rests on any general principle at all, given the care the Court took to limit its reasoning to the extraordinary circumstances of the Florida presidential election.

It is all too easy to leap from this well-founded critique of the Court's reasoning to the conclusion that the majority – all of whom were appointed by Republican presidents – were bent on installing George W. Bush in the White House by …