The 2000 Presidential Election Controversy

1. The 2000 Presidential Election Controversy Slides for 3/19/09

2. Analysis of Bush v. Gore Equal Protection Claim • Neither side is arguing that a recount per se violates the equal protection clause. The dispute in this case relates to the method being used. • The Gore side sought to have votes counted, even though the chad was still hanging on the ballot. • The Bush side sought to prevent votes from being counted when there was chad still hanging on the ballot. • Florida law stated that election judges should seek to determine the “intent of the voter.” • The Bush side is arguing that this standard is too vague and leaves too much discretion in the hands of the local election judges.

3. Potential of Unequal Treatment • Yes, there is potential that a hanging chad might be counted in one county that would not have been counted in another, but these types of potential inequalities exist all over the place and never rise to the level of a constitutional violation. • Different police officer make different judgments as to what constitutes a “complete stop” or “erratic driving.” • Different juries reach different decisions over what is or is not an obscene publication or whether the death penalty should be given in similar situations. • What is so important about hand recounts that it rises to the level of a constitutional violation?

4. 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?

5. Potential Victim #1 Candidate George Bush: • U.S. Supreme Court explicitly stated that the question before the court was whether “the Florida Supreme Court” treated “members of its electorate” arbitrarily. • Right to have vote counted rests with the voter, not the candidate. • George Bush was not a Florida voter.

6. Potential Victim #2 Voters who had unambiguously expressed their intent, but through no fault of their own, it had not been recorded in the machine count. • This is the group that Gore is fighting for. • Remedy would be to have a hand recount and count their vote--Not to stop the recount from happening.

7. Potential Victim #3 That leaves: Voters whose ballots were originally counted by machine and whose votes would be diluted if additional votes were added after a hand recount. • There are two problems with basing the decision to stop the recount on this group. • This same argument could be used against any recount, because any recount could result in dilution of votes that were already counted. • The recount actually restores the value of the original vote to what it should have been if errors in the counting had not been made.

8. Intent v. Effect As we have seen from other cases we have read, Washington v. Davis Village of Arlington Ht. v. MHD Personnel Adm. of Mass v. Feeney in order to have an equal protection violation, the plaintiff must prove discriminatory intent as well as a discriminatory effect. • In this instance the purpose of the recount was to reflect the will of Florida voters, not to favor one candidate over another or to treat one type of voter different than another. • Therefore, even if there were an indirect negative impact, there was no discriminatory intent.

9. Bush v. Gore: Where Justices Stood 7 Justices (Rehnquist, Scalia, Thomas, O’Connor, Kennedy, Souter, and Breyer) concluded the intent of the voter standard violated the equal protection clause. 2 Justices (Stevens and Ginsburg) concluded the “intent of the voter” standard was sufficient when coupled with judicial review.

10. Bush v. Gore: Disposition Four of the justices (Souter, Breyer, Stevens and Ginsburg): : • argued that too much significance had been placed on the Dec. 12 “deadline” date. The only date that really counts is the Jan. 6th date when Congress counts the votes and there was no reason to believe Florida couldn’t have a recount completed and certified by that date. • They therefore voted to remand the case back to the Florida S.Ct. for them to establish uniform guidelines and set new timetables for the recount.

11. Constitutional Crisis • If Florida vote wasn’t resolved in time to beat the “safe harbor” deadline, the election would have to be settled by the House of Representatives. • Why would it be a constitutional crisis for a political dispute to be resolved by a democratically elected representative body by a process that is included in the Constitution for this very purpose?

12. Influence of Political Agendas • All five of the Justices voting to take the case and to stay the recount were appointed by Republican Presidents. • Rehnquist, Scalia, Thomas, O’Connor, and Kennedy • If Bush became President, Scalia, O’Connor, and Kennedy had reason to believe they might become Chief Justice after Rehnquist, but knew that it would not happen if Gore became President.

13. Legislating from the bench • Given the vagueness of the wording of the equal protection clause and the absence of precedents, how can this decision be seen as anything other than legislating from the bench?

14. Originalism • Note how Justice Scalia abandoned his “originalism” in this case. • There was no discussion of whether the average person in the 1860s though the equal protection clause gave the federal government courts the power to step in and stop a state from conducting a recount in an election it was constitutionally responsible for running.

15. Legal Implications • Court majority stressed that this was a special case that would have little application to anything in the future. • Reality is that several suits have already been filed in other states, including Illinois, challenging election procedures based on equal protection grounds. • Examples include: • Black v. McGuffage South to require state board of elections to require a common “error notification system” state-wide. • Southwest Voter Registration Education Project v. Shelley sought to postpone recall election until new improved voting machines would be available.

16. RELIGION IN THE CONSTITUTION 3/19/09

17. Relationship Between Church and State One of the most controversial and the most misunderstood topics in constitutional law is the relationship between church and state. It is controversial because there is strong disagreement among many people as to what they think: the founding fathers intended, as well as What they think it should be like in today’s world. It is misunderstood, because there is so much misinformation about our history and about different religions.

18. Defining Religion How do you define religion? What separates one religious group from other religious groups? Is atheism a form of religion?

19. Defining Religion RELIGION is: a set of beliefs and practices (prayer, baptism, communion, animal sacrifice, etc.) associated with recognition of one or more supernatural beings/powers responsible for the creation of our world .

20. Variations Among Religions Religions differ as to: the extent to which they believe a single god or multiple gods the extent to which this supernatural power(s) controls what happens on earth and the extent to which it/they occasionally intervene through miracles, “acts of god,” etc. beliefs about what happens to people after they die. the extent to which what happens after death is a form of punishment or reward for what they did while they were alive on this earth.

21. Atheists, Agnostics & Humanists ATHEIST is someone who openly rejects the existence of a supernatural being. AGNOSTIC is someone who harbors serious doubts about the existence of a supernatural being, and generally rejects the idea that such a being intervenes in people’s daily lives. SECULAR HUMANIST is someone who believes people can live ethical and fulfilling lives that lead to the greater good of humanity without having to believe in a supernatural being.