The Wall Street Journal (subscription not required for this article) reported today on a rather obscure legal battle fought and won by Harriet Miers on behalf of George W. Bush, using arguments that could hardly be construed as “strict constructionist.”


The case involved a legal challenge brought by three Texans seeking to prevent the awarding of Texas’ 32 electoral votes to Bush based upon the relatively obscure 12th amendment to the Constitution which state’s that a delegation can’t vote for presidential and vice presidential candidates who are both from electors’ home state.

The 12th Amendment sat silently on the books for 196 years until the Bush-Cheney ticket, after falling 543,895 votes short of the Gore-Lieberman ticket, nevertheless stood poised to claim 271 electoral votes to the Democrats’ 266.


Annoyed by that prospect, three Texas voters filed suit under what they called the Constitution’s Habitation Clause, seeking to prevent the state’s 32 electoral votes from going to the Republicans. George W. Bush, then the state’s governor, didn’t deny his Texas standing, despite being born in Connecticut. But the plaintiffs also alleged that Mr. Cheney lived in Dallas as chief executive of Halliburton Co. Mr. Cheney contended he was a Wyomingite.

… Ms. Miers was head of the legal team that appeared before U.S. District Judge Sidney Fitzwater. Her name is atop briefs filed for the co-defendants.

With Bush v. Gore heading to the U.S. Supreme Court, few took notice of Jones v. Bush when it was filed Nov. 20 in Dallas’s federal courthouse. Mr. Bush understood the stakes and dispatched his crackerjack legal counselor Ms. Miers.

Like any good defense lawyer, Ms. Miers first fought to keep the case from being heard, arguing that the voters had no legal standing. According to transcripts of a telephone conference call with Judge Fitzwater and attorneys seven days later, Ms. Miers said she was speaking “on behalf of Governor Bush.”

According to court papers, Mr. Cheney bought a home and registered to vote in Dallas in 1995. After that date, he also held a Texas driver’s license, paid Texas taxes and claimed the state’s homestead tax deduction.

Mr. Cheney seemed aware of his Habitation Clause problem. In July 2000, shortly after deciding to run for vice president, he switched his voter registration and driver’s license back to Wyoming. That detail formed part of his defense in the case, along with the fact that he had attended the University of Wyoming, represented Wyoming in Congress and owned a vacation home in Jackson Hole, Wyo.

Mr. Cheney also owned a Cadillac and a Lexus registered in Texas. He registered a Mercedes-Benz in Virginia, where he owned a townhouse, and a Jeep in Wyoming. The Miers team noted that Mr. Cheney put his Dallas home up for sale while the plaintiffs pointed out a listing describing it as “owner-occupied.”

… Noting that Mr. Cheney’s wife Lynne had not switched her voter registration to Wyoming from Texas, the plaintiffs proposed to ask Mr. Cheney if he intended to live with his wife. “While I’m happy to say quite publicly that the marriage is good,” said Mr. Cheney’s lawyer David Aufhauser during a telephone conference, that question is “singularly offensive.”

This is where the argument turned interesting.

Ms. Miers’s brief contended that for constitutional purposes, the relevant date was Dec. 18, 2000, the date the Electoral College was scheduled to meet. By that time, Mr. Cheney would have fully severed his Texas ties.

… Mr. Aufhauser, Ms. Miers’s co-counsel, suggested that whatever the 12th Amendment might have meant in 1804, the provision’s meaning had, in effect, evolved with modern society. “Differences between the year 1800 and 2000 is more than two centuries, it’s light years,” said Mr. Aufhauser, noting the “rapidity with which each of us have changed addresses from schools and college to various marriages and jobs.”

That’s a style of legal interpretation more commonly associated with liberal-leaning judges. Mr. Bush later appointed Mr. Aufhauser general counsel of the Treasury Department. He is now global general counsel of UBS AG, an investment bank. In an interview, Mr. Aufhauser says his argument is “perfectly reconcilable with an orthodox reading of the Constitution.”

William Berenson, a Fort Worth lawyer representing the voter plaintiffs, insisted on a tighter interpretation of the clause, something more typical of the right. “I don’t think that these Founding Fathers…had in mind last-minute shenanigans where someone could start discarding baggage just at the last minute.” The plaintiffs’ brief noted that the Bush-Cheney ticket “promised to only appoint judges who would strictly interpret the Constitution.”

Judge Fitzwater, a Reagan appointee, sided with Ms. Miers’s earlier argument that the plaintiffs lacked standing. On Dec. 1, he ruled that their “general interest in seeing that the government abides by the Constitution” fell short of the requirement that they have an “an injury in fact to them personally.”

He went on to opine that Mr. Cheney, for constitutional purposes, was a Wyomingite. “It is undisputed that he was born, raised, educated and married in Wyoming and represented the state as a member of Congress for six terms,” Judge Fitzwater wrote, perhaps unaware that Mr. Cheney lists his birthplace as Lincoln, Neb.

The plaintiffs appealed to the Fifth U.S. Circuit Court of Appeals in New Orleans where Ms. Miers again argued on behalf of Mr. Bush, recalls Jerry Clements, a partner at Ms. Miers’s former law firm, Locke Liddell & Sapp, who worked with her on the case.

Rather than wait weeks, the three Republican-appointed judges returned in minutes with a decision for the Bush-Cheney ticket… [which Miers’ law partner Jerry] Clements attributes [to Miers’s] “great presentation.”

… For its part, the White House cautions against reading too much into it. “This case is a factual dispute regarding residency, and Harriet Miers vigorously represented her client,” White House spokeswoman Dana Perino said yesterday. “Arguments an attorney makes on behalf of a client do not necessarily reflect how one would rule as a judge.”

and there is no doubt that Harriet Miers vigorously represented the interests of her client. The same week she was arguing Jones v Bush she and her fellow law partners at Locke, Liddle & Sapp were busy donating $26,700 to the Bush-Cheney 2000 Inc.- Recount Fund working to prevent the Florida votes from being counted, an effort eventually settled in Bush’s favor by the Supreme Court which Miers now aspires to join. For her part Miers herself contributed $5,000 to the fund.