The 2000 Presidential Election Controversy

1. The 2000 Presidential Election Controversy Slides for 3/17/09

2. Legal Consistency v. Partisan Political Interests • Bush v. Gore challenges the popular idea that Republican Presidents have appointed strict constructionist judges that do not “legislate from the bench.” • In Bush v. Gore conservative Republican justices took legal positions that were completely inconsistent with their purported judicial philosophies and inserted themselves in the middle of partisan politics.

3. Legal Consistency v. Partisan Political Interests In a major book written about the case, Harvard law professor Alan Dershowitz wrote: “The very justices who typically allow state prisoners to be executed even if their conviction was based on a mistaken reading of federal constitutional law jumped into this case on the ground that the Florida Supreme Court’s decision violated the U.S. Constitution in a manner never before suggested by any court.”

4. Florida’s Role in 2000 Election • Vote totals for Bush and Gore were extremely close. • Initial vote totals in Florida gave Bush 2,909,135 and Gore 2,907,351. • A difference of 1,784 or .03% of the votes cast. • Since Electoral College is “winner take all” system, Florida’s 35 electoral votes were enough to put either Bush or Gore over the top.

5. Recounts • Florida election law mandated an automatic machine recount whenever the top candidates are separated by 0.5% or less of the vote. • The machine recount narrowed Bush’s victory margin even further, but still left him with more votes than Gore. • Gore then requested hand recounts in four, predominantly Democratic counties [Volusia, Palm Beach, Broward, and Miami-Dade]

6. Errors on Punch Card Ballots • Since the Votomatic cards used were know to have a failure rate of 4%, the Gore campaign requested a hand recount. • If the stylus failed to break out all of the perforations, it left what was known as “hanging chad ” on the punch card ballots. • If the “chad” was not completely detached, it could block the hole in such a way that the machines used to count these ballots would not record the vote. • In addition to note pushing hard enough on the stylus, hanging chad could also result from blockage from other voter’s chad that gets caught in the voting machine. • These “undervotes” could only be detected by hand recount.

7. Butterfly Ballots • Poorly designed “butterfly ballots” also produced “voting combinations” that suggested many voters had miss-marked their ballots and voted for persons they had not intended to vote for. • These were not the ballots that were the focus of the Bush v. Gore case.

8. Palm Beach County Canvassing Bd. v. Harris • When Republican Secretary of State, Katherine Harris, refused to extend the deadline for certifying the election in order to allow time for a hand recount to be conducted, one of the Democratic controlled local election boards sued her in Florida courts to make her wait until the results of the recount were in. • On 11/21 the Florida S.Ct., based on Florida law, extended the deadline for certifying the vote by 12 days.

9. Bush v. Palm Beach County Canvassing Bd. • To the surprise of most legal scholars, the U.S. Supreme Court decided to review the Florida S.Ct. decision even though it was a state case involving state law. • The U.S. Supreme Ct. remanded the case back to the Florida S.Ct. for further proceedings with a warning that it should be careful not to violate Art. II provision of the U.S. Constitution giving the state legislatures the power to determine the procedures for selecting presidential electors. • The justices said nothing about the equal protection clause and explicitly denied review of the Bush claim that a manual recount employing different standards for counting questionable ballots denied equal protection clause of the 14th amendment.

10. Bush v. Gore • On 12/8 in Gore v. Harris, the Florida Supreme Court ruled by a 4-3 votethat the Gore campaign had produced enough evidence of machine error to justify their request for a hand recount. • The Bush campaign promptly appealed to the U.S. Supreme Court to stop the recount. The appeal came to the U.S. Supreme Ct. as Bush v. Gore. • In addition to being asked to rule on the constitutionality of the recount, the U.S. S.Ct. was asked to stop the recount from taking place while they reviewed the case.

11. Bush v. Gore: The Stay • On 12/9 the U.S. Supreme Court chose to stop the recount while they reviewed the briefs and heard oral arguments. • Dershowitz observed: “Of all the judicial decisions rendered in this case, none was more surprising and controversial than the 5-4 ruling to stop the counting even before hearing arguments. The Supreme court issues stays very rarely, and when it does, it is because the harm in not doing so would be irreparable and extraordinary, such as with executions.”

12. Bush v. Gore: The Stay • A decision on the merits was made four days later. • What irreparable harm would have occurred if the Supreme Court had allowed the recount to continue until it made a decision on the merits of the case?

13. Bush v. Gore: Support ofthe Stay In seeking to justify this unusual stay, Justice Scalia wrote: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, 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 democratic stability requires.”

14. Bush v. Gore: the Stay • Why would it be a threat to “democratic stability” to first count the votes and then have the Court rule as to whether they were legal? • Isn’t this what happens in elections all the time? Don’t we always count the votes on election night and then deal with challenges and recounts in the weeks that follow?

15. Opposition to the Stay In a harshly worded dissent, Justice Stevens (joined by Souter, Ginsburg, and Breyer) wrote: • “On questions of state law, we have consistently respected the opinions of the highest courts of the States.” • “Counting every legally cast vote cannot constitute irreparable harm.” • “On the other hand, there is a danger that a stay may cause irreparable harm to the respondents-and, more importantly, the public at large-because …preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.”

16. Activism v. Self-Restraint • By deciding to take a second case they didn’t have to review and then ordering a stop to the Florida recount, the “conservative” justices on the U.S. Supreme Court again became judicial activists. • Rehnquist, Scalia, Thomas, and other conservative justices claimed they had to take the case to avoid a constitutional crisis. • What was the nature of the “constitution crisis” they foresaw?

17. Bush v. Gore Constitutional Issues Raised • Did the Florida Supreme establish new standards that violated Art. II, §1, cl. 2 of the US Constitution? • Did the Florida Supreme establish new standards that violated federal “safe-harbor” statute, 3 U.S.C. §5? • Did the standards set by the Florida Supreme violate the equal protection and due process clauses of the 14th amendment?

18. Bush v. Gore: Article II • Under Article II §1, cl. 2 of the U.S. Constitution, each state legislature may decide for itself the manner by which its electors are appointed. • 3 Justices [Rehnquist, Scalia, and Thomas] concluded that the recount violated Art. II §1, cl.2 because that section of the constitution delegates the selection of the method of selecting electors to the state legislature rather than the courts.

19. Bush v. Gore: Article II • 4 justices [Souter, Breyer, Stevens and Ginsburg] concluded Art. II §1, cl.2 doesn’t change the traditional role of the courts in interpreting laws passed by the legislative branch. It assumes the operation of judicial review to interpret the statute and resolve disputes. • 2 Justices [O’Connor and Kennedy] chose not to join with either side on this issue.

20. Bush v. Gore: “Safe-harbor Statute • 3 U.S.C. §5 (referred to as the “Safe harbor” provision) provides that states are supposed to make their “final determination” of who its electors shall be “at least six days before” the Electoral College meets. • 3 Justices [Rehnquist, Scalia, and Thomas] concluded that the challenged action to be in violation of 3 U.S.C. §5 because the court’s action interfered with the Florida legislature’s desire to qualify for the “safe-harbor” protection.

21. Congress & Electoral College • The 2nd issue raised in Bush v. Gore involves interpretation of federal “safe harbor” statute, 3 U.S.C. §5 • The electors meet in their state capital and then send their votes to Washington D.C. where Congress is responsible for counting the their votes and certifying the results. • the final authority on which electoral votes are to be counted.

22. Congress & Electoral College • If a majority of the electors voted for a given candidate, he/she becomes the President. • If no candidate received a majority, the House of Representatives will pick the winner based on a system in which each state gets to cast one vote.

23. Congress & Electoral College • The “safe harbor” statute, 3 U.S.C. §5, provides incentive to the states to get their votes in on time, by promising not to challenge state vote totals that are received by the “safe harbor” date. • It does not say that state votes received after that date won’t be counted.

24. Bush v. Gore: “Safe-harbor Statute • 4 Justices [Souter, Breyer, Stevens and Ginsburg] concluded 3 U.S.C. §5 assumes the operation of judicial review to interpret the statute and resolve disputes arising under it and that “safe harbor” was less important than accurately counting the votes. • 2 Justices [O’Connor and Kennedy] again chose not to join in this part of the decision.

25. Bush v. Gore: 14th Amendment • So the outcome of the case came down to the 14th amendment challenge. • 6 of the 7 Justices appointed by Republican Presidents (Rehnquist, Scalia, Thomas, O’Connor, Kennedy, and Souter) concluded that the recount violated the equal protection clause on the basis that the intent of the voter standard violated the 14th amendment.

26. Application of Precedent Cases Majority didn’t cite a single case that involved use of the intent of the voter standard. • Harper v. Virginia Bd. of Elections involved poll tax and court’s decision added voters as opposed to not counting their votes. • Reynolds v. Simms and Gray v. Sanders involved reapportionment and the court ruled you couldn’t dilute the value of citizens’ votes. NOTE: Bush v. Palm Beach Canvasing Bd. was cited for background facts on the election—not as precedent for application of the equal protection clause. Majority didn’t cite: • Lassiter v. Northampton Election Bd. In which the Court upheld a standard-less literacy test for voting.

27. General Principles of Equal Protection Analysis When there are no cases directly on point, courts attempt to apply general principles to the situation in question. • What are the two groups that were being treated differently? • What standard/test was used and what was the basis for using this standard? • What government interest was being served by treating these two groups differently? Was that interest compelling, important, or simply legitimate? • What was the relationship between the means and the ends? Were they reasonably related, substantially related, or did they represent the only reasonable alternative?