Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  18 argument was. 40 Given the skepticism that these same conservative Justices elsewhere have evinced toward equal protection challenges to state political processes, 41 their willingness to intervene in Bush would not have been easy to predict. Even after the majority identified an equal protection problem with the “standardless” recount, however, the ordinary remedy would have been to remand the case to the Florida Supreme Court, to afford it an opportunity to cure the problem. Instead, the per curiam opi- nion concluded that such a remedy would be pointless, since the December 12 “deadline” for resolving Florida’s election contest was immediately at hand. 42 The Court manufactured this deadline out of thin air. The federal statute identifying December 12 as a relevant date in the presidential election process plainly is a “safe harbor” provision, to be utilized or ignored by the states at their discretion; it operates as an instruction to Congress, when that institution counts the states’ electoral votes, not as a command to the states, to be en- forced by the federal courts. 43 Nothing in federal law requires that a state’s presidential electors be appointed until the date set for the electors to meet and cast their votes (December 18, on the 2000 election calendar). The majority opinion does not dispute this point. Rather, it reads the Florida Supreme Court decision under review as declaring the state legislature’s intention to take advantage of this federal safe harbor provision. Thus to remand Bush to the state court would have been pointless, according to the majority, since under 40 See, e.g., William Kristol & Jeffrey Ball, “Against Judicial Supremacy,” Weekly Standard , Dec. 4, 2000, 10 (noting that “[i]t would . . . be a mistake . . . for Bush to put too much hope in the federal courts” because “[m]ost GOP-appointed judges will vote as federalists, for the right of states to prevail on election law,” and thus will reject the equal protection argument); Charles Lane, “Bush’s Appeal to High Court Raises Issue of Fairness,” Washington Post , Nov. 23, 2000 (“Even Republican lawyers who sympathize with Bush’s case express doubt about the Bush campaign’s [equal protection] claim.”); Editorial, “The Election Road Narrows,” New York Times , A28 (noting, after the initial Supreme Court remand, that once the Florida Supreme Court revised its ruling to address the Court’s Article II concern, “there is unlikely to be any federal issue that would warrant further review by the United States Supreme Court”); Charles Lane, “Territory is Uncharted for Court Action,” Washington Post , Nov. 10, 2000, A1 (describing the various state law disputes generated by the election and then noting that “[f]ederal law generally leaves the administration of elections for federal office up to the states, so the matter is likely to be settled in Florida’s courts, with no ultimate appeal to the U.S. Supreme Court.”). See also Scott Turow, “No Turning Back From the Dart the Court has Thrown,” Washington Post , Dec. 17, 2000, B1 (noting that constitutional scholars “of all stripes” had predicted that the Supreme Court would not get involved in the case). 41 See, e.g., Davis v. Bandemer, 478 U.S. 109, 143, 145, 158, 161 (1986) (O’Connor, J., with Rehnquist, J., dissenting) (warning against “the federal judiciary” becoming involved in “the most heated partisan issues,” denying that the Equal Protection Clause provides “a judicially manageable standard” for adjudicating political gerrymandering claims, and deny- ing that “mainstream political parties” require federal judicial protection). 42 Bush , slip opinion at 12. 43 See Bush , slip opinion at 5 (Stevens, J., dissenting); id . at 2 (Souter, J., dissenting).