The Florida Moment
E.J. DIONNE JR.
Our nation has never decided a presidential contest the way it decided the election of 2000. Never before has an election hung on the judgment of the United States Supreme Court, let alone on a decision that split the court into bitter camps and was settled by a single vote. Not in 124 years has a presidential election result been so disputed. Never in all those years have so many Americans believed that the winner of the White House actually lost the election. Nor in all those years has the winning side been so convinced that the losing candidate was intent on "stealing the election." Rarely in our history have Americans been so divided on basic issues of democracy: how the votes should be counted, whether the electoral system was fair, and which legal bodies should decide the winner.
The editors of this book are friends who disagree on what should have happened in the extraordinary five weeks following Election Day 2000. We agree that the judiciary played a much larger role in the result than is proper in a democratic republic. But we disagree, as our own essays in this volume make clear, about which court decided wrongly. We disagree as well about whether or not the Florida legislature had a role to play in determining which candidate should have received that state's 25 electoral votes. We disagree over the merits of the United States Supreme Court's 5-to-4 ruling in favor of Bush.
But we both believe that what might be called The Florida Moment was an important momentevena touchstonein our nation's politics and history. This collection is built around that premise. It will be, we hope, of immediate interest to the many citizens who became passionately involved in the great national debate about the Florida recount and the very mechanisms of democracy.
But we hope and suspect that this book might also be of long-term interest to students of American politics (in classrooms and lecture halls, to be sure, but not just there), because the debate surrounding the Five Week Recount War engaged fundamental issues of American politics. These include the obligations of fairness and equality, the requirements of a democratic system, the roles of elected bodies and the courts in interpreting and vindicating the Constitution, the best means of ensuring racial justice at the polls, the value of openness and public disclosure. During the Florida battle, we argued about everything from how (and if ) ballots should be recounted to the ways in which some voting mechanisms treated some voters more fairly than others. And we argued about court decisionsespecially the Supreme Court's final ruling in Bush v. Gore, which will be debated in the coming months and years as intently as many other famously controversial court cases.
The first half of the volume gathers what we and the editors at the Brookings Institution Press believe to be the most important legal documents in the Bush-Gore confrontation. Although written by lawyers for legal purposes, most of these documents are surprisingly accessible to those without formal legal training (a group that includes us). Their readability may reflect the fact that almost all of them dealt with more than legal technicalities. They engaged some of the most basic issues in our democracy.
The book begins with the early advisory rulings on the recounts by Florida's state officials. It moves on to the intermediate court rulings and ends with the critical decisions in early December by the Florida Supreme Court and the United States Supreme Court. We have included the dissents in all the major cases. As is often the case with dissents, they provided some of the most eloquent statements of principle in the entire controversy. Readers interested in other legal documents relating to the Florida election cases, including oral and written arguments, will be able to find them on a web site established as a companion to this book, at www.brookings.edu/bushvgore. In some instances, court decisions reprinted here have been edited to cut out long, distracting, parenthetical, references to other cases. The full texts can be found on the website.
The second half of the book consists of contemporaneous commentaries on the controversy. These include columns, magazine articles, editorials and also a few news stories that shed important light on the issues at stake.
Whatever else people make of this controversy in the future, it's fair to say that it generated a rather high level of discussion at the timemuch of it produced on very short deadlines. We believe that many of these articles (we don't pretend to know for certain which ones) will remain illuminating many years from now as powerful testimony to the issues that mattered at a crucial moment in our country's political history. Philosophers, law professors, political scientists, and political commentators understood rather quickly the significance of what was transpiring, and they were moved to place the controversy in a larger contextwithout, as you'll see, putting aside their own commitments, principles, and passions. Yes, there was also a fair amount of invective, directed especially (and, in the view of one editor but not the other, unfairly) at Al Gore, and also at the courts. But for better or worse, invective is also part of the political debateand what may look like invective to one person may look like reasoned argument to another. In the end, the reader can decide which was which.
We have tried to minimize the level of invective by selecting articles that highlight what we see as particularly important issues raised by The Florida Moment. These include judicial activism (on both sides); the right of voters to have their ballots counted; the role of the political branches of government in deciding political contests; the right of all Americans to know how Florida actually voted; the obligations of political candidates in close races to the common good; the vices and virtues of the electoral college; the right of all voters to cast their ballots free from intimidation; and the proper reading of what our Constitution says about how presidential elections should be decided.
We also warn readers that, to keep this volume to a manageable size, we have left out much fine writing about the Florida struggle. In the final stages of editing, we had to cut commentaries that one or both of us admired, because we had run out of space. We do think that the writers included here are broadly representativeand among the best representativesof the range of opinions offered during The Florida Moment. We tried to make the best judgment we could about which article, of several candidates, best presented a particular aspect of the case. But we understandand hope readers, and those writers not included here, will understandthat such judgments can be subjective. On certain issues, especially on the U.S. Supreme Court's final ruling, we decided to run the risk of including overlapping arguments because the questions at stake were of particular interest. This collection leans toward commentary rather than reportage. Many good journalists will continue to report on what happened in Florida, and several comprehensive accounts will no doubt be published in the coming months and years. That also means we have left out much of the fine work done by Florida newspapers during the recount struggle. We hope and suspect that the efforts of Florida journalists will be captured in other volumes.
Our purpose here is to present the arguments raised by the recount battle and to explore the issues behind the controversy. Virtually all the commentaries we have chosen are short, pungent, and aimed at a general audience. Many of them are by distinguished scholars who joined the national debate on op-ed pages and in magazines. Readers who believe that some important article or comment was excluded should contact us through the Brookings Institution Press. If we ever put together a second edition of this book, we'll be grateful for the advice.
As best as we could, we organized the commentaries in chronological order so readers could follow the arguments from the beginning of the controversy to the end. We have included dates on all the pieces. But dates on magazine articles can be misleading, since magazines often date themselves for the end of their newsstand sale period rather than by the date of actual publication. In ordering the commentaries, we have tried to follow the real time of publication, not the magazine cover dates.
We confess to having included several of our own pieces here. It would be perfectly just to accuse us of having a bias in our own favor, but those pieces might at least help explain why each of us believes The Florida Moment was so important and enlightening. We'd also note that some of our own articles were among those that hit the cutting room floor and didn't make the book.
Both editors stand behind the book as a whole, but there was a division of labor. Dionne was primarily responsible for selecting the pieces that were sympathetic to the idea of carrying the recount forward, opposed to the Florida legislature's effort to insinuate itself in the battle, and critical of the United States Supreme Court's decision. Kristol was primarily responsible for selecting those critical of the Florida Supreme Court's rulings in favor of further recounts, supportive of a role for the Florida legislature, and favorable toward the U.S. Supreme Court decision. It should be said, though, that in a fair number of cases we agreed on what were the best arguments presented, even against our respective sides. We also tried to include commentaries that did not strictly represent one side of the argument or the other, though we did lean toward pieces that sharpened and, we hope, might clarify the debate.
Readers will note that some writers have identifications under their articles about what they do, where they teach, and the likeand others do not. We generally followed what originally appeared in print. Writers without identification are editors, staff writers, or columnists for the pubication listed, or well-known syndicated columnists. This volume would have been impossible absent the remarkable work on a demanding schedule by a long list of very able and very generous people at the Brookings Institution Press. Robert Faherty, the director, and Becky Clark, marketing director, saw that a collection of this sort might be appealing to readers, useful to teachers and students, and helpful in furthering the debate unleashed by The Florida Moment. They went to work immediately and with great skill and good cheer.
They enlisted virtually the whole staff of the press. Chris Kelaher searched, searched, and searched again for the various commentaries. It is not an exaggeration to say this book could not have happened without him. Tin-Ming Hsu and Chris were extraordinarily thoughtful in helping to choose the commentaries. Charles Dibble did a superb job editing and organizing the cases. Lawrence Converse, Janet Walker, Susan Woollen, and Tanjam Jacobson handled design, editing, and production and did amazing things on an extremely condensed schedule. Tom Parsons restructured the Brookings catalogue to allow us to announce this book.
Cynthia Strauss-Ortiz ably did the very onerous and essential work of gaining permissions to reprint the pieces here. And for help on so many tasks, great thanks also to Colin Johnson, Nicole Pagano, Christopher O'Brien, and Isha Wilkerson.
This book would have been impossible to produce if a large number of publications and columnists' syndicates had not granted us permission, on a very timely basis, to reprint work published elsewhere. We acknowledge them elsewhere in the book, but we are grateful to them all.
Shortly after the votesor at least most of themwere counted, the conservative writer Terry Teachout suggested in Commentary magazine that the results of the election showed our country divided into two nations. He called them "Republican Nation" and "Democratic Nation." Most striking, Teachout argued, were the divisions along the lines of region and culture.
Although it's possible to argue that the divisions in the country are not quite as stark as Teachout suggestsa fact he acknowledges himselfhis argument is compelling. And it is dead on when it comes to the country's reaction to The Florida Moment.
Millions of Democrats will believe for the rest of their lives that George W. Bush became president through illegitimate means. They will believe he won only because his campaign blocked and obstructed recounts in Floridaand because this cynical strategy was ratified by a narrow, partisan U.S. Supreme Court majority that abused its power to install its preferred choice in the White House.
Millions of Republicans will forever resent Democrats for not acknowledging the legitimacy of Bush's election. They will always see the recount as an unprincipled ploy by the Gore campaignsupported by a narrow Florida Supreme Court majorityto add into the state's totals as many questionable ballots in selected counties as might be necessary to grant Gore victory.
A difference of this sort is not easily forgotten and the wounds it creates are not easily healed. This book proposes not to settle the argument but to document it. It shows how intelligent Americans came to disagree so profoundly and so passionately not only on which candidate should become our president, but also on how he should be chosen.