Election 2000

"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution�s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront." -- From the Bush v. Gore Decision

Introduction

The 2000 Presidential Election result raises a lot of ire among those on the left, who wished for their candidate, Al Gore to be the next president, and those on the right who see those on the left as sore losers. It is my hope to present a Reasoned explanation of exactly how the election ended as it did, and to dispell as many misconceptions about the election and the legal battles that followed as I can.

My sources are the US Supreme Court decision in Bush v. Gore, the dissenting opinions in that case, and documents related to that case or mentioned in the decision or dissenting opinions.

Regarding The Stay Order That Halted The Manual Recounts

I start by examining a statement made by Justice Antonin Scalia, in his concurring opinion to the stay of the recount. This statement is often misquoted by those on the left, as if it somehow justifies their belief that the "truthful" results of the ballot recounts in Florida would delegitimize Bush's election to the presidency. The quote:

"The counting of votes that are of questionable legality does, in my view, threaten irreparable harm to petitioner [George W. Bush] and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance that democratic stability requires."

The key words in this quote, and ones that are readily ignored, are "votes that are of questionable legality." Scalia argued that a count of votes that did not satisfy the law that showed Gore won would cast even worse doubt on the legitimacy of Bush's election. I hope we all can agree that either Bush or Gore should have been elected by a fair and accurate count of perfectly legal ballots.

Scalia also wrote, "It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success."

A quote you will never see offered by those who supported Gore is one by the Chief Justice of the Florida Supreme Court, Charles Wells, who wrote, "the majority's decision to return this case to the circuit court ... has no foundation in the law of Florida. I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis."

Nor will those Gore supporters remember that the Florida Supreme Court narrowly ruled 4-3 to begin a statewide manual recount.

I quote the Bush v. Gore Decision:
"Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. "

History Leading Up To The Case

The decision in the Bush v. Gore case goes into detail about the history of the matter leading up to the Court agreeing to hear the case. These facts are a useful reminder of the legal proceedings initiated by Gore and the final one initiated by Bush.

On November 8, 2000, the Florida Division of Elecitons reported that George W. Bush had received 2,909,135 votes and that Al Gore had received 2,907,351. Bush had apparently won by 1,784 votes. Florida law required an automatic machine recount because the victory was less than "one-half of a percent of the votes cast." Bush also won this recount, but by a diminished margin.

Gore sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, which was provided for by the Florida election law's election protest provisions. A dispute arose over the deadline for which counties had to submit their returns to the Secretary of State, when she refused to waive the November 14 deadline imposed by state law. The Florida Supreme Court overrode her decision and imposed a new deadline of November 26 - one that was not written into the state law. The U.S. Supreme Court vacated this order and remanded the case back to Florida's Court, which ignored the U.S. Court and reimposed the November 26 date.

On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Bush the winner of the state's 25 electoral votes.

Gore then filed a complaint in the Leon County Circuit Court under the election code's contest provision. The court ruled that Gore failed to meet his burden of proof, and Gore appealed to the Florida Supreme Court.

The Florida Supreme Court partly affirmed the lower court ruling. Gore had challenged the reults in Nassau County and had sued the Palm Beach County Canvassing Board because they had determined 3,300 ballots were not legal votes. The Court rejected these claims by Gore. But the Court did rule that Gore had satisfied his burden of proof and ordered that the results of a partial recount in Miami-Dade County be added to the vote totals, giving Gore a 168 vote gain. A complete recount of that county was completed and showed that Gore actually lost votes overall. The Court also ruled that ballots counted in Palm Beach County, but not counted until after November 26, were to be included in the totals as well, giving Gore an additional 215 votes overall.

Finally, the Florida Supreme Court remanded the case back to the Circuit Court and ordered that Court to being a statewide manual recount of all undervote ballots. But with no standard other than, "determine the intent of the voter."

Bush v. Gore: Legal Precident And Background

Before I get into the details of the decision, there is another misconception perpetuated by those on the left. They suggest that the Supreme Court and the Federal Government, in general, have no right to interfere in how states run their elections. Well, that's just not true. The U.S. Supreme Court has heard many cases dealing with how states run their elections in the past. As well, the elections must be run in accordance with federal law, passed by the Legislative Branch. In fact, the Bush v. Gore decision mentions FOUR cases decided by the Court: Harper v. Virginia Bd. of Elections, Reynolds v. Sims, Gray v. Sanders, and Moore v. Ogilvie.

I mention this to establish that the Court absolutely has the power and right, and even moral obligation, to hear cases involving state elections, even elections that are not federal elections. Consider if the Court could not hear cases where a state violated the civil rights of some of its citizens.

There are references to two specific parts of the U.S. Constitution made in the Bush v. Gore decision. I quote these here:

Article II, Section 1, Clause 2:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

And the 14th Amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "

The decision also references the U.S. Code, Title 3, Chapter 1, Section 5:

"If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. "

The Decision: Bush v. Gore

The U.S. Supreme Court was faced with two specific questions:

1) Did the Florida Supreme Court establish new standards for resolving Presidential Election contests, thus failing to comply with the Article II of the Constitution and the U.S. Code?

2) Did the use of standardless manual recounts violate the Equal Protection (14th Amendment) and Due Process Clauses (5th Amendment)?

The Court ruled 7-2 that the use of standardless manual recounts did indeed violate the Equal Protection Clause. The Court listed several reasons for this finding:

1) "The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right" [to vote]. In other words, the lack of rigid standards "has led to unequal evaluation of ballots in various respects."

2) The Florida Supreme Court "ratified ... uneven treatment." That ballots within the same county were not treated equally is clear: Palm Beach County started using a 1990 written standard, changed to a different standard (can see light through the chad), and then switched back to the 1990 standard - all during the same recount. That ballots from different counties were not treated equally is also clear.

3) Manually counting all the ballots in three counties and just the undervotes in others is unequal treatment of the ballots. "A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes."

4) "The votes certified by the court included a partial total from one county, Miami-Dade." Not only is the partial result not meaningful, it clearly does not treat the uncounted ballots equally to those that were counted.

5) The recount process ordered by the State Court provided no standard for identifying valid ballots. Nor did it specify who would perform the recounts. The Supreme Court specifically objected to the State judges performing the recounts becuase they had no training in handling or interpreting ballots.

6) Importantly, "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."

The Remedy

While seven justices agreed the recounts as instituted by the State Court were unconstitutional, there was less agreement over what the remedy should be.

Justice Souter proposed setting a December 18th deadline for completing a statewide recount of every single ballot (6M+) with a well-defined standard. That would have given the state less than 6 full days to complete the task; the Bush v. Gore decision was rendered late on December 12th.

The State Supreme Court declared that the legislature intended the State's electors were to vote for the Presidency, per the state law. The state law requires any controversy or contest be completed by December 12th, and even with an expedited hearing and ruling, the Supreme Court made its ruling on December 12th. Time had run out.

The Court considered Souter's proposed remedy, but did not believe it could either extend the December 12th deadline and override the Florida statute, nor was there a satisfactory recount procedure in place.

Dissenting Opinion: Justice Stevens

Justice Stevens argues that Aritcle II and USC 3,5 were not violated by the Florida Supreme Court decision. He contends that the States are free to select electors right up to election day, and that the State Court had the jurisdiction to resolve electoral disputes with respect to the State's laws.

He proposed a manual recount supervised by a single impartial magistrate. He also argued that different voting methods in different counties might also violate the Equal Protection Clause. He also contends that the Florida Court made no substantial changes to the State voting laws.

He concludes, "Although we may never know with complete certainty the identity of the winner of this year�s Presidential election, the identity of the loser is perfectly clear. It is the Nation�s confidence in the judge as an impartial guardian of the rule of law."

Dissenting Opinion: Justice Souter Souter suggests that the Supreme Court might have ignored the whole sordid affair. He believed "it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress." Souter proposes a 6-day extension and to allow the State Court to set a constitutionally acceptable standard for performing the recount. He concludes, "To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now."

Dissenting Opinion: Justice Ginsberg

Ginsberg suggests that she would agree with the majority opinion, but that she feels the Court does not have the jurisdiction to make the decision it made. She says, "Rarely has this Court rejected outright an interpretation of state law by a state high court. " She argues that USC 3.5's safe harbor is not as significant as the Court wrote in its decision.

She concludes, "The Court assumes that time will not permit �orderly judicial review of any disputed matters that might arise.� Ante, at 12. But no one has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court�s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court�s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States."

Dissenting Opinion: Justice Breyer Breyer argues the federal legal qustions are insubstantial. Specifically, since Bush never argued the overvotes might contain valid ballots/votes, there was no problem with those. Nor did Bush ask for all ballots, not just the undervotes, be counted.

Breyer agrees with the majority that a lack of standards is a problem. He wrote, "since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the State�s highest court, I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. "

Breyer concurs with Souter's proposed remedy; let the State decide how to count, but to finish by December 18th, or let the Congress sort it out. Breyer also questions whether the Court is overstepping its authority by looking at the Florida statutes.

Breyer concludes, "I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary �check upon our own exercise of power,� �our own sense of self-restraint.� United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, �The most important thing we do is not doing.� Bickel, supra, at 71. What it does today, the Court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards."

My Conclusions

There was no sort of Coup D'Etat here. The majority presents a well-reasoned decision, based upon existing State law and other Supreme Court precidents. While the minority dissents talked about the Court overstepping its bounds, the Court did refuse to rule on whether the Florida Court established new standards. In spite of the 4 dissenting opinions, 2 of those Justices did agree with the majority that the recounts were unconstitutional.

My feeling is that if the Souter remedy had been implemented, the statewide recount would never have finished by December 18th. The case would have been brought to the Supreme Court again, and the ultimate result would have been a 7-2 decision to stop the recounts.

There is absolutely nothing in the opinion or dissents that indicate any kind of political motivation for the decision. I cannot find any justification for making such a claim.

The most blatant inequity in the recounts that were occuring was how the State Supreme Court allowed the partial recount of Miami-Dade County to be included. The Canvassing Board had not counted any precincts that voted heavily for Bush. All recent newspaper and public citizen organization results of ballot examinations show Gore would have actually lost votes in Miami-Dade, overall.

The minute the mandatory machine recount was concluded, the matter was certain to be decided by the courts, or the State legislature, or the U.S. Congress. This certainty was assured by Mr. Gore, who initiated a large number of lawsuits.

There was a clear disagreement between the State Court and the State legislature. The Court claimed the November 7th date was not really what the legislature meant when they wrote the law, and changed it. The legislature was prepared to select its own electors, to assure the state's 25 electoral votes would be counted. When it comes to defining the legislature's intent, the legislature gets the last word. For obvious reasons.

Was there an attempt to "steal" the election? Not exactly. Gore did his best to "cherry pick" the heaviest Democrat voting counties with his initial demands for manual recounts. The Democrats who ran those County Canvassing Boards were not obligated to comply, but they did - this indicates a willingness to at least give it a try. Gore did claim he wanted a fair and accurate count of the ballots and votes, but he made little effort to seek one. Only the Courts (both state and the Supreme Court) moved in that direction. Gore ended up suing everyone in the Florida government by the time it was over - even his own party members in those Democrat County Canvassing Boards.

Did Bush "steal" the election? No. He did little to assist Gore in his attempt to recount (and recount) ballots in the counties he chose. He did file 3 lawsuits of his own (compared to 30+ for Gore). From a publicity standpoint, he did appear to be obstructing the recounts. The public probably did not fully understand the nature of the counts, in spite of watching those Democrat Canvassing Boards looking for light through hanging chads; the issue was a statewide one. Bush never trailed in the vote after any of the recounts.

Unresolved Issues

From the viewpoint of the left, somehow Gore should have won or been "selected" as president. From the viewpoint of the right, Gore did his best to prolong his defeat to damage Bush; to make the legitimacy of his election a question, and to delay Bush's transition team from getting a good running start for the handover of power.

There was a lot of noise about voter disenfranchisement and voter fraud. I find no credible evidence of either.

Black voters made up 11% of the Florida population, yet black voters made up 15% of the votes. This is indication that black voters clearly were allowed to vote, if not encouraged to do so.

The kinds of allegations of voter fraud make little sense. Road blocks miles away from the polling places. And the ultimate question is why would those Democrats in those Gore counties want to restrict access to likely Gore voters?

Jeb Bush's involvement appeared to be minimal. There's no evidence, whatsoever, to support claims he was involved before the election in any kind of scheme to rig the election. As soon as the election became contested, Jeb recused himself from the whole process. He probably would have had to sign the legislature's selected slate of electors had it gone that far, but the legislature was prepared to override a veto or non-signature.

The reverse may be true; Jeb Bush and Secy. of State Kathryn Harris were assaulted by people on the left, likely without merit. For example, an unsubstantiated rumor persisted that the two were linked romantically.

The issue of the "confusing" ballot is frequently raised. But it was not raised for more than the first couple of days by Gore and his crew. For good reason: the Courts have long held that confusing ballots are the voter's problem, not one with the election machinery. There just is no way to look at a ballot that has a Buchanan vote on it and say it should be a Gore one. To do so is to truly manufacture a vote where there was none.

The issue of the networks and 24-hour cable news channels calling Florida early for Gore clearly distorted the election results, not only in parts of Florida where the polls were still open, but in the rest of the country in time zones west of Florida. People who bothered to go to the polls, or who had serious intentions to do so, were likely to hear on the radio, on TV, or from a friend via cell phone that it didn't matter if they voted anymore. The premature announcement that Gore had won Florida may have cost Bush hundreds of thousands of votes, and even the electoral votes of midwestern and western states.

Gore won the popular vote, so he should be the president, right? Wrong. The popular vote win by Gore has nothing to do with the Electoral College. If anything, the popular vote win by Gore indicates he won bigger than expected in New York and California, which hardly is representative of the people nationwide. If Bush and Gore were going after popular vote, Bush would have spent more money in Texas and Gore would have spent some money in California. The strategy just wasn't to go for popular votes.

I found a November 2, 2000 tracking poll. In the CNN/USA Today/Gallup poll, Bush led Gore 47% to 43%, and had a similar lead for the previous six days. In the ABC News poll, Bush led 49% to 45%. In the Reuters/MSNBC/Zogby poll, it was 45%-42%. In the CBS poll, Bush led 44% to 43%. The thinking at that time was that Gore might win the electoral vote and Bush the popular vote. Ironic how it turned out.

And perhaps the most obvious unresolved issue... The Bush v. Gore decision does a good job of stating it: "This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting."

What Went Wrong?

I conclude by examining the things that went wrong in the period after November 7th and December 12th.

The most glaring mistakes were made by the Florida Supreme Court. Not only did they fail to uphold lower court decisions, they instituted unconstitutional remedies. This court is the only one that Gore won in, strangely enough.

The first mistake, and the one that cost Gore his real chance to win, was the Court's first decision. That decision likely cost the state at least 19 days of time to manually count ballots in a proper manner. The court should have ruled that the election be certified on its proper date of November 14th, allowing for a much longer contest period. The Court should have ordered the statewide recount then, with the intent of looking at the results anytime before December 12th.

It's easy to look back and say the loser made mistakes, but Gore made plenty. He should have asked for recounts in every county from the start. If he truly felt he had more votes in the state, he had nothing to lose and everything to gain. A letter sent by one of his operatives describing the strategy for disqualifying overseas ballots of enlisted men may indicate his true intention, and at least made him look very bad.

It's likewise hard to find fault with what Bush did, since he ended up the winner. But he didn't inspire confidence in the electorate that his election was legitimate by not cooperating in any attempt to get a true fair recount. On the other hand, he may have been right that the recounts shouldn't have been done - the Supreme Court said they were unconstutitional.

References

http://www.geocities.com/mykesx/info/constitution/text.html

http://www.geocities.com/mykesx/info/constitution/amendments.html

http://www4.law.cornell.edu/uscode/3/5.html

http://www.cnn.com/2000/LAW/12/10/scalia.stevens/

http://www3.cnn.com/2000/ALLPOLITICS/stories/11/02/tracking.poll/index.html

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