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

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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 …