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In Supreme Injustice, best-selling author and legal expert Alan M. Dershowitz addresses these questions head-on, at last demystifying Bush v. Gore for those who are still angered by the court's decision but unclear about its meaning. Dershowitz--himself a former Supreme Court clerk--argues that in this case for the first time, the court's majority let its desire for a particular partisan outcome have priority over legal principles. As in his other bestselling books, Dershowitz clarifies complex legal issues, explaining concepts such as "equal protection" and "irreparable harm." Digging deeply into their earlier writings and rulings, Dershowitz proves beyond a reasonable doubt that the justices who gave George W. Bush the presidency contradicted their previous positions to do so.
The most egregious ruling since the Dred Scott Decision, Bush v. Gore has shattered the image of the Supreme Court as a fair and impartial arbiter of important national issues. The resulting loss of the American people's respect, Dershowitz concludes, has severely compromised the Court's role in national affairs. And yet Dershowitz sees some benefit emerging from this constitutional crisis--if we understand its lessons and take action to prevent it from happening again.
The most egregious ruling since the Dred Scott Decision, Bush v. Gore has shattered the image of the Supreme Court as a fair and impartial arbiter of important national issues. The resulting loss of the American people's respect, Dershowitz concludes, has severely compromised the Court's role in national affairs.
"This well-reasoned and controversial book asks central questions about American democracy and the role of citizens and courts in our society." --Library Journal
The five justices who ended Election 2000 by stopping the Florida hand recount have damaged the credibility of the U.S. Supreme Court, and their lawless decision in Bush v. Gore promises to have a more enduring impact on Americans than the outcome of the election itself. The nation has accepted the election of George W. Bush, as it must under the rule of law. It will have an opportunity to reassess this result in 2004. But the unprecedented decision of the five justices to substitute their political judgment for that of the people threatens to undermine the moral authority of the high court for generations to come.
The Supreme Court, which consists of only nine relatively unknown justices with small staffs, has wielded an enormous influence on the history of our nation. It is the most powerful court in the world—the envy of judges in every other country. Presidents accept its rulings, even when disagreeing. The public eventually embraces much of what the justices say in their judgments. Legislatures rarely seek to overrule their decisions. Though only one part of our delicate system of checks and balances, the high court speaks the final word on many of the most divisive and important issues of the day. This enormous power has always been viewed as legitimate because of the unique status of the justices as transcending partisan politics, eschewing personal advantage and pronouncing the enduring constitutional values of our nation. We defer to them because we respect them. Now in one fell swoop, five partisan judges have caused many Americans to question each of the assumptions undergirding the special status accorded these nine robed human beings. Bush v. Gore showed them to be little difference from ordinary politicians. Their votes reflected not any enduring constitutional values rooted in the precedents of the ages, but rather the partisan quest for immediate political victory. In so voting, they shamed themselves and the Court on which they serve, and they defiled their places in history.
Because the Supreme Court lacks the legitimacy and accountability that come with election and the power that derives from the sword and the purse, its authority rests on public acceptance of its status as a nonpartisan arbiter of the law. This moral authority is essential to its continued effectiveness as an important guarantor of our constitutional liberties. Unless steps are taken to mitigate the damage inflicted on the Court by these five justices, the balance struck by our Constitution between popular democracy and judicial oligarchy will remain askew. Preserving this delicate balance is essential to our liberties and to our system of checks and balances. That is why I have written a book about the Supreme Court decision rather than about the election.Here I offer a critical assessment of the decision itself as well as the motivations of the justices who rendered it. I provide both direct and circumstantial evidence that someof them were motivated by partisan advantage, while others were motivated by expectation of personal gain. I explore the dangerous implications of the decision in Bush v. Gore for all Americans, regardless of party affiliation or ideology, especially since the Supreme Court—prior to this case—was among the last institutions whose integrity remained above reproach. Finally, I propose steps that can be taken to avoid any repetition of this supreme injustice.
The majority ruling in Bush v. Gore marked a number of significant firsts. Never before in American history has a presidential election been decided by the Supreme Court.1 Never before in American history have so many law professors, historians, political scientists, Supreme Court litigators, journalists who cover the high court, and other experts—at all points along the political spectrum—been in agreement that the majority decision of the Court was not only "bad constitutional law"2 but "lawless,"3 "illegitimate,"4 "unprincipled," "partisan,"5 "fraudulent," "disingenuous," and motivated by improper considerations.6 In addition to the remarkable expert consensus regarding this case,there is also widespread popular outrage at what the high court did. Though the level of this outrage tends to mirror party affiliation, it is safe to say that the degree of confusion overwhat actually happened is not limited to one party.There are millions of Americans who do not strongly identify with the Democratic Party—indeed, even somewho voted for George W. Bush—but who cannot understand how five justices could determine the outcome of a presidential election. Moreover, the furor within the Supreme Court itself—among somejustices and law clerks—is unprecedented in the annals of this usually harmonious institution.
In light of these factors, many Americans who believed that the Court was an institution that could be trusted to remain above partisan politics are now experiencing a genuine loss of confidence in the impartiality of the judicial branch of our government. This widespread loss of confidence, reaching to the pinnacle of our judiciary, should be the concern of all Americans, because the Supreme Court has played such a critical role in the history of our nation. Without its moral authority, we would be a less tolerant, less vibrant, and less free democracy. The high court, throughout its long and distinguished history, has helped us—not always perfectly or swiftly—through crises of institutional racism, religious intolerance, McCarthyism, systematic malapportionment, presidents who deemed themselves above the law, and governors who defied the Constitution. The Court stepped in when the other branches of government were unwilling or unable to enforce the constitutional rights of unpopular minorities. The justices were always at their greatest when they could act unanimously and on principles that could be easily justified and widely accepted. When they act in an unprincipled and partisan manner—as they did in Bush v. Gore—they risk losing respect and fritteringaway the moral capital accumulated by their predecessors overgenerations. That is what Justice Stephen Breyer was referring to when he wrote in his dissent in Bush v. Gore:
this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure. It has been built slowly overmany years....It is a vitally necessary ingredient of anysuccessful effort to protect basic liberty and, indeed, the rule of law itself....risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation.
The Constitution, after all, places the power to elect our president in everyinstitution of government but the judiciary. The people vote for electors. The electors vote for the president. If this process produces no clear winner, then the Constitution (and the laws enacted pursuant to it) assigns varying roles to the Senate, the House of Representatives, the state legislatures, and even the governors. No role, however, is explicitly given to the Supreme Court. James Madison, in recording his own views of the constitutional debate as to how the president should be elected, dismissed selection by the appointed judiciary as "out of the question."
Indeed, the justices themselves seemed to initially recognize the absence of a judicial role when they unanimously remanded Bush v. Gore back to the Florida Supreme Court for that court to explain whether it had improperly changed the election law as enacted by the Florida legislature. The high court suggested that if the state supreme court had changed duly enacted state legislation, then it may have violated Article II of the Constitution, which vests in state legislatures the authority to select the manner by which electors should be chosen. It seems ironic that the U.S. Supreme Court would take upon itself a judicial function nowhere specified in the Constitution—effectively ending a presidential election—while seeming to deny to the Florida Supreme Court its traditional role in interpreting and reconciling conflicting statutes.
Some of the Court's defenders have argued that since, in their view, the Florida Supreme Court engaged in partisan judicial activism in support of Gore, it was permissible for the nation's highest court to "correct" the lower court and undo the harm it had done. Indeed, I am reliably informed that several of the majority justices were outraged at what they believed was crass partisanship by the Florida justices. I have been told that one of the dissenting U.S. Supreme Court justices characterized the mind-set of someof the majority justices as follows: "If the Florida Supreme Court is going to act like a bunch of Democratic political hacks, well, by God, we will act like a bunch of Republican political hacks." Even if it is true that someFlorida justices acted in a partisan manner, that would not justify a retaliatory partisan decision by U.S. Supreme Court justices. Two partisan wrongs do not make a judicial right. Moreover, under the U.S. Constitution, a state court has the right to be wrong on matters of state law, and the Supreme Court has no power to correct it unless its mistake is a matter of federal constitutional or statutory law. Even then, the Supreme Court does not traditionally correct everyerror a state court makes. Citing death penalty cases, Justice Ruth Bader Ginsburg, in her dissenting opinion in Bush v. Gore, reminded her colleagues that "t uncommonly, we let stand state-court interpretations of federal law with which we might disagree."
During oral argument, she put it even more directly to Bush's lawyer:
"I do not know of anycasewhere we have impugned a state supreme court the way you are doing in this case," Ginsburg scolded Olson. Florida's seven justices "may have been wrong; we might have interpreted it differently, but we are not the arbiters—they are."
The very justices who typically allow state prisoners to be executed even if their conviction was based on a mistaken reading of federal constitutional law11 jumped into this case on the ground that the Florida Supreme Court's decision violated the equal-protection clause of the U.S. Constitution in a manner never before suggested by anycourt. Even somescholars who supported Bush—Robert Bork, Harvey Mansfield, Michael McConnell, and Richard Epstein, among others—have found this conclusion unconvincing, troublesome, and wrongheaded.
It also seemed baffling to many that these five justices, whose records on the high court showed them to be the least sensitive to claims of equal protection, determined a presidential election on such doubtful equal-protection grounds.
These and many other questions have led many Americans to wonder whether the black-robed justices are really anyless politically partisan than elected politicians. When Antonin Scalia—one of the architects of the majority decision—was still a law professor, he made an observation that aptly characterized the feelings of many scholars in regard to this decision:
It is increasingly difficult to pretend to one's students that the decisions of the Supreme Court are tied together by threads of logic and analysis as opposed to what seems to be the fact that the decisions of each of the Justices on the Court are tied together by threads of social preference and predisposition.
In dissenting from the Supreme Court's decision ending the hand count, Justice John Paul Stevens, the court's senior associate justice, echoed Professor Scalia in strong words that will be long remembered and often quotedby those who follow the Court. He warned that the majority's position "can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is," said Justice Stevens, "confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. 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."
Justice Stevens is wrong in only one respect: Time will never heal this wound so long as it remains untreated by the strong disinfectant of sunlight. And heal it must if our system of checks and balances, with the unique role our Supreme Court has played throughout our history, is to remain strong.
A significant diminution of confidence in our Supreme Court, based on legitimate concerns, should not be covered up or minimized in the false hope that it will be forgotten overtime. Nor should well-intentioned defenders of the justices hold back their criticism out of fear that it will be misused by those who would weaken the Supreme Court as an institution. Well-founded criticism, if it leads to proper healing, can only strengthen the Court.
In this book, I will try to cast a bright light on the Court's decision and the justices who engineered it. At the same time, I will try to explain how we could have come to the pointwhere five unelected judges, appointed for life and accountable to no one, could have had so much influence—in so partisan a manner—on the political destiny of a nation that proclaims itself to be the world's protector of democracy.
It will come as no surprise that I, too, was a partisan in this election and in the postelection legal and political dispute. I am a Democrat (who occasionally votes for Republicans) who in this election voted for Al Gore. A few days after the election, two groups of voters in Palm Beach County asked me to represent them on a pro bono basis to oppose the Bush efforts to stop the mandatory hand recount requested by Gore and to obtain other legal relief. I appeared in court once on behalf of one of these groups and continued to maintain an interest throughout the litigation. I also appeared frequently in the media, not as a spokesman for the Democratic Party—indeed, I disagreed strongly with someof their tactics—but rather as a supporter of a statewide hand count that categorized each disputed ballot by its salient characteristics (how many were fully punched through; how many had one, two, or three hanging chads; how many had chads that were pierced or dimpled; and so on). I am also an academic who has practiced before the Supreme Court for many years and who has taught courses for even more years dealing extensively with Supreme Court decisions. I served as a law clerk to the late Justice Arthur Goldberg during the 1963-64 term of the Supreme Court. I think I understand the important and unique role our high court plays in our system of governance, and I revere the Court as an institution, though I have often been critical of its work. In this book, as in all my writings, I try to bring to bear a combination of my experience, advocacy, academic orientation, and principles. It is for others to judge whether I have struck the appropriate balance, but I try to give the reader all the information about my biases necessary to make that judgment.
I wanted Al Gore to be elected president, but it was not Gore's loss or Bush's win that motivated me to write this book. I care much more about the enduring impact of this case on the credibility of the Supreme Court than about the transient effects of a single presidential election. I am angry at the Supreme Court not so much because of whom it elected, but because it took it upon itself to elect anyone.
Nor is it relevant to the point of this book that had the Supreme Court not stopped the hand count, Bush might well have won—according to someaccounts, by even more of a margin than the official count gave him.16 The Supreme Court did not know what the result of the hand count would be when it stopped it. A hijacking occurs when someone unlawfully seeks to divert a vehicle from its course. The fact that the vehicle ultimately ends up at its intended destination does not mitigate the hijacker's culpability.
This book is about the culpability of those justices who hijacked Election 2000 by distorting the law, violating their own expressed principles, and using their robes to bring about a partisan result. I accuse them of failing what I call the shoe-on-the- other-foot test: I believe that they would not have stopped a hand recount if George W. Bush had been seeking it. This is an extremely serious charge, because deciding a case on the basis of the identity of the litigants is a fundamental violation of the judicial oath, to "administer justice without respect to persons...." In this book, I marshal the evidence in support of this charge. In a larger sense, this book is also about the Supreme Court and its continuing importance to all Americans. Its purpose is to alert the American people to a serious problem in the hope that constructive criticism can help to avoid a crisis that could endanger our liberties.
Five Justices Decide the Election
There's a story, almost certainly apocryphal, about a lawyer making his first argument before the Supreme Court. Justice Felix Frankfurter, a stickler for procedural regularity, asked the rookie advocate the question he commonly asked lawyers in cases of questionable federal jurisdiction: "How did you gethere?" To which the flustered young man replied, "By taxi!"
How a case gets to the Supreme Court is often intriguing and sometimes confusing. Despite the common misperception that everycitizen has a right to bring his grievances to our highest court, the reality is that the Supreme Court's jurisdiction—that, is, its power to consider a case—is relatively limited. In somecountries (Israel is a notable example) anyone has the right to appear before the supreme court on specified days to seek justice.1 In the United States, the power of the Supreme Court is circumscribed by the U.S. Constitution and federal statutes. For example, the Supreme Court may not offer "advisory opinions" about abstract or hypothetical questions of law; it may rule only in actual "cases or controversies" involving litigants with a real stake in the outcome. Nor may it decide issues of state law; under our system of federalism, the highest court of each state is the final arbiter in local matters lacking a federal interest, such as domestic relations, local crimes, contracts, torts, and similar issues. But pursuant to the supremacy clause of the U.S. Constitution2—and a series of cases interpreting that clause3— the U.S. Supreme Court has the final word on questions of federal law, including federal constitutional law.
Cases within the Supreme Court's jurisdiction get to the justices through several different routes. With a few very narrow and rarely used exceptions, cases do not come to the Supreme Court directly.4 They must first pass through either the lower state courts or the lower federal courts. In the Florida election matter, cases were being litigated simultaneously in both the Florida state court system and the federal court system.5There were as many as fifty separate, but often overlapping, court cases growing out of the election in Florida.6 Because of the looming deadlines, these cases were also necessarily on a fast track, thus compressing the time ordinarily taken by courts to render decisions. The result was a flurry of lawsuits, arguments, and legal decisions, which were often difficult to follow.
Before considering these cases and the manner by which they made their way up through the courts, let me first outline the constitutional and statutory framework within which presidential elections are conducted in this country, and provide a brief chronology and a few words about the election itself. While many readers will be familiar with much of this information, it is sufficiently important to an understanding of Bush v. Gore to warrant a brief recounting.
How We Elect Our President
Many Americans were surprised to learn that they have no constitutional right to vote for the president of the United States. The framers of our Constitution did not trust all of the people to elect their president. Fearful of "mobocracy," they created a governmental structure under which elites would check and balance the rabble. These elites consisted of electors, chosen by whatever manner each state legislature designated, who would select the president and vice president; senators, who would be chosen by state legislatures; and judges, appointed for life. Only the members of the House of Representatives were to be elected directly by the voters. Moreover, a relatively small percentage of people were deemed qualified to vote in any elections.
Challenges to this elitism soon began to emerge. Jacksonian democracy placed more trust in the people than in the elites. The requirement that one had to be a taxpayer in order to vote was gradually eliminated; secret paper ballots largely replaced the old method of oral voting; andwhereas in 1800 only two states provided for the popular selection of presidential electors, by 1836 only South Carolina still left the selection of electors to the legislature.
Gradually the U.S. Constitution, and the constitutions of many states, changed to reflect this growing distrust of elites. Senators were elected directly by the people.11 Universal suffrage was introduced. The voting age was lowered. Many state judges were elected. In Florida today, even public defenders are elected.
The only elite institution that remains close to what it was when our original Constitution was adopted is the federal judiciary, headed by the Supreme Court. If anything, the power of the Supreme Court has been enhanced. In 1803, in the transforming case of Marbury v. Madison, the Supreme Court allocated to itself the power to declare the actions of the other branches unconstitutional. This decision, which had no precedent anywhere in the world, made the Supreme Court the final arbiter on how the Constitution would be interpreted. As Justice Robert Jackson once quipped in regard to this awesome power: "We are not final because we are infallible, but we are infallible only because we are final."
Following the democratization of all the other branches of government, the Supreme Court remained the only elite check on the perceived excesses of democracy. It was permitted to retain that power on the assumption that it would act differently than the popular branches and that its decisions would not be driven by partisan political considerations, self-interest, or the desire for immediate popular approval.
Now back to the way our Constitution and statutes determine how our presidents are to be elected.
Under Article II of the Constitution, electors decide who shall become president, and each state legislature may decide for itself the manner by which its electors are appointed. The legislature could appoint them, or it could—as everystate legislature has now done—delegate that authority to the voters. In all but two states, the winner of the popular vote receives all of the state's electors, who are committed—either by law or by tradition—to vote for the candidate who wins the state popular vote. Ifthere is a dispute overwho has won the popular vote in a given state, the election law of that state, with its provision for recounts, governs—at least initially. Under a federal statute enacted after the disputed Tilden-Hays election of 1876, if a state makes "its final determination" of who its electors shall be "at least six days before" the Electoral College meets, that determination "shall govern." This deadline is popularly known as the safe-harbor provision of federal law—a provision that came to play a pivotal role in the 2000 presidential election.There is, of course, no actual Electoral College, in the sense of a group that meets in a single location and deliberates on who shall become president. The electors from each state meet in the state capital and send their vote (or votes) to the United States Capitol in Washington,where all the votes are tabulated. If a majority of the electors vote for a given candidate, he becomes president, but ifthere is no majority, the election is thrown into the House of Representatives,where each state casts one vote.There, a majority of twenty-six votes is needed to win.
The 2000 Election and Its Aftermath
It was within this constitutional and statutory framework that the 2000 election was held on November 7. Shortly before 8 p.m., the major television networks projected, based on exit polls, that Al Gore had won Florida. Within a few hours, they retracted this projection and declared the state too close to call. At approximately 2:15 a.m. on November 8, the networks declared that George W. Bush had won Florida by approximately fifty thousand votes and hence had won the presidency, despite Gore's lead in the national popular vote. Gore called Bush to concede, but less than an hour later, Gore learned that the actual count had shrunk Bush's lead to the pointwhere, under Florida law, an automatic machine recount was required.17 He again called Bush, this time to retract his private concession. At 4:15 a.m., the networks withdrew their projection that Bush had been elected. From this point on, confusion reigned, and the world turned its attention to Florida and to several key counties in particular. Within days, virtually everyAmerican had learned new terms such as "butterfly ballot," "chad," and "Votomatic." We were introduced to new characters in the unfolding drama, such as Florida secretary of state Katherine Harris and Florida attorney general Bob Butterworth. Images of weary vote counters holding perforated ballots up to the light flashed around the world.
The thirty-six days between November 7, when Americans voted, and December 13, when Al Gore finally conceded the presidency to George W. Bush, were among the most confusing, exhilarating, nerve-wracking, educational, divisive, uplifting, and depressing in our political history as a nation. We were exposed to what many called a high-stakes civics lesson on a subject about which most Americans had strong feelings but little prior knowledge. It was a wild ride for the candidates, their supporters, and a fascinated world that hadn't seen anything quite like this struggle for an Electoral College victory, which would determine the leadership of the free world based on several hundred disputed ballots in counties few people had ever heard of prior to November 7.
Shortly after the polls closed, several things became apparent: Gore appeared to have won the national popular vote by a razor- slim margin, but whichever candidate secured Florida's twenty- five electoral votes would win in the Electoral College and become president. More Floridians probably intended to vote for Gore than for Bush, but if the machine count was an accurate reflection of votes properly cast, more had actually voted for Bush. Gore was going to challenge the machine vote unless the automatic machine recount put him overthe top, and Bush was going to resist anysuch challenge. This was going to be a fight to the finish, with neither candidate likely to concede until all hope was lost.
Both campaigns sent teams of lawyers, political operatives, and media mavens to Florida to conduct the anticipated litigation as the post-Election Day drama played itself out on several fronts: the legal, the political, the public relations, and the personal.
The Ground War in Florida
I was in Palm Beach and Miami for only a few days shortly after Election Day, and others who werethere have written more detailed accounts of the ground war in Florida. I will focus instead on what the Supreme Court did in the five crucial decisions it rendered:
1. It agreed to review one aspect of the initial decision of the Florida Supreme Court, which had ordered the manual recount to continue and which extended the deadline for certifying the election by twelve days.
2. It vacated that decision and sent the case back to the Florida Supreme Court for clarification regarding the grounds of its decision.
3. It stayed the Florida Supreme Court's second decision, which had mandated a statewide recount of all undervotes and had ordered certain votes not counted by the machines but identified in the hand count to be included in the final certification.
4. It agreed to review that decision on its merits.
5. It reversed that decision and permanently stopped all hand counting of undervotes,thereby ending the election in favor of George W. Bush.
In order to understand the context of these decisions and to assess their validity, we must briefly look at somebackground information regarding the ground war and the numerous overlapping battles—in both the courts of law and the courts of public opinion—that were raging throughout Florida and beyond between Election Day and the night of the Supreme Court's final decision.
The Butterfly Ballot
The first hint of trouble emerged even before the polls closed.20 By midday on November 7, it was becoming obvious thatTheresa LePore, the election supervisor of Palm Beach County, had made a dreadful error in designing the ballot for her constituents. What was not yet obvious was that her mistake would change the outcome of the presidential election. As the result of a little-noticed 1998 referendum, it had become easier for marginal third-party candidates to demand a place on the ballot. Ten candidates, instead of the usual three or four, had their names listed on the presidential ballot, and this crowding of the field required election officials to figure out a way of getting so many names on a single ballot. The most common solution was simply to use smaller print. LePore rejected this approach because the voters in her county tended to be older and might have difficulty with small print. She decided instead on a design that was described this way in a report in the Washington Post:
The design LePore chose placed the names on two facing pages, with the punch holes running down the center. Arrows pointed from the names to the holes—but when the ballot cards were fed into the voting machines, the holes didn't always line up with the arrows. Not that the arrows were entirely clear, either: The hole for a minor third-party candidate, Patrick J. Buchanan, was higher on the card than the hole for Al Gore.
All through the day, complaints came in from voters who were confused by the ballot and worried that they had accidentally voted for the wrong candidate. This occurred before anyone had any idea how close the Florida election would turn out to be. The butterfly ballot caused so much confusion—almost all of it hurting Gore.
The tragedy is that any moderately intelligent elementary-school student could have avoided these problems without anyadditional cost. My then-ten-year-old daughter was asked by her teacher to redesign the ballot so as to avoid the confusion. She changed nothing other than to add a circle around each candidate and his correct hole.
Had these circles or someother simple visual device been added,there is virtually no doubt that Gore would have been elected president, without any recount or challenge.
The Palm Beach Post later conducted a review of more than nineteen thousand double-punched ballots that had been invalidated. The newspaper concluded that "Gore lost 6,607 votes when voters marked more than one name on the county's `butterfly ballot."' This does not even include around three thousand individuals who may have intended to vote for Gore but inadvertently cast a vote for Patrick Buchanan. As one elderly Jewish woman who believes she accidentally voted for Buchanan told me colorfully: "I would rather have had a colonoscopy than vote for that son of a bitch Buchanan." Buchanan himself acknowledged that very few of the votes he received in heavily Jewish and Democratic Palm Beach County were intended for him.
The newspaper's review found that 5,330 voters punched chads for both Gore and Buchanan. An additional 2,908 voters punched chads for Gore and the Socialist candidate whose hole was just below Gore's; these voters apparently thought they were voting for Gore and Lieberman. As Palm Beach County resident Paul Berman told a reporter from the Washington Post: "I voted for Gore, but I also voted for the vice president. I punched two holes instead of one....All I had to do was just punch Gore....But I saw Lieberman—so I punched it too."
Bush lost 1,631 votes as a result of people punching his name and Buchanan's. But the net loss for Gore was 6,607—more than ten times the number of votes he would have needed to overcome Bush's official 537-vote margin of victory.
Initially, most of the legal attention was focused on the butterfly ballot, since the incompetently—and perhaps illegally26— designed ballot probably resulted in more lost Gore votes than anyother potential legal issue. But ultimately the Gore legal team concluded that they were unlikely to prevail on this matter.There were two daunting hurdles to overcome. First, the person who had designed the ballot was a registered Democrat. Theresa LePore—whom the media dubbed "Madame Butterfly"—had obviously not deliberately designed the butterfly ballot to help Bush, though anyone looking at it should have seen that it gave Bush a significant benefit. The problem for the Democrats was that they had looked at a sample ballot before the election and had not noticed the potential for con- fusion.
The other hurdle—this one even more difficult to overcome— was thatthere was no apparent practical remedy that a court would be willing to impose even if it concluded that the rights of confused voters had been violated by the ballot. The Gore legal team considered asking for a complete revote with a less confusing ballot in Palm Beach County, but after reviewing previous election cases, it became apparent to them that no court would order such a radical remedy. The law requires presidential elections to be held on a given day, suggesting that a revote on another day might raise legal concerns. As one Bush lawyer put it: "There are no do-overs in a presidential election." Indeed, when somePalm Beach voters sought this remedy, a circuit court judge rebuffed them, saying that he lacked the authority to order a revote. Other remedies were suggested, including an effort to determine the number of votes lost to each candidate by using a probabilistic extrapolation of the kind ultimately done by several newspapers with the help of expert statisticians, but the consensus was, rightly, that no judge would allow a presidential election to be decided by statisticians or hypothetical extrapolations, and that the public would never accept a president selected by experts.
According to an account published in the Washington Post, Gore's campaign manager, William Daley, was among those who argued strongly against seeking a remedy that he felt they would never get. Daley acknowledged that Gore had been hurt by the butterfly ballot, but he pointed out that "people get screwed everyday" and "they don't have a remedy."There was "no way to solve this problem," he insisted, urging the Gore legal team to focus on problems they could solve, such asthe county-by-county hand count provided for by Florida law. The decision was made to abandon the butterfly ballot issue and try to count as many Gore votes as possible that were missed by the machine counts.
The butterfly ballot, it was soon learned, was not the only poorly designed part in the complex machinery of the Florida election process. Interviews with poll workers disclosed that the voting machines used in several counties failed to count a significant number of ballots that were validly cast under Florida law. The Votomatic cards were "alarmingly unreliable," with a failure rate of "4 percent or more," and in an election decided by a mere fraction of 1 percent of the votes cast, this is highly significant. A Gore lawyer found a 1982 patent application by the man who helped design the Votomatic machine, which read in part as follows:
"If chips are permitted to accumulate...this can interfere with the punching operations,...and occasionally, it has been observed that a partially punched chip has been left hanging onto a card" resulting in the machine becoming "so clogged with chips as to prevent a clean punching operation. Incompletely punched cards can cause serious errors to occur in data processing operations utilizing such cards."
Another Gore lawyer noted that "it has been eight years since Miami-Dade County cleaned the chads from its machines." A poll worker said that she had "tried to shake out the chads every few hours" but some machines "became clogged beyond repair."
Beyond the clogging problem, the machines themselves had a design flaw that made them entirely inappropriate for use in Florida and other states that, by law, require the counting of everyballot from which the intent of the voter could be clearly inferred. The Votomatic sometimes did and sometimes did not count ballots whose chads were fully punched through (thus demonstrating a clear intent to vote for that candidate) but on which the chad was not fully detached. These "hanging chads," as they came to be called, generated considerable controversy. Voters received written instructions at the polls to inspect their ballots to be sure that no chads remained hanging, but thousands failed to do so. No reasonable person could claim—though Justice O'Connor later appeared to—that this failure somehow reflected an intent not to cast a valid vote, anymore than, for example, using a No. 1 pencil when the instructions called for using a No. 2 pencil. And unless a ballot could be interpreted as not intending to cast a vote, it had to be counted under Florida law. Yet the Votomatic machines failed to count many such votes—enough to change the outcome of a close election. They also failed to count other ballots that arguably showed an intent to vote for particular candidates. For example, somemachines were clogged or misaligned so as to make it impossible or quite difficult to punch the chad through for anycandidates. Someballots that were uncounted by the machines showed clear indentations or pinholes for one candidate for every office, thus reflecting an effort to vote for those candidates. Those ballots can be distinguished from ballots on whichthere was only a slight indentation on one chad for a candidate for only one office, while the chads for candidates for everyother office were fully punched through, thus leaving open the possibility that the voter changed his or her mind and decided not to cast a vote for that office. Under Florida law, the former ballots surely should have been counted, while the latterprobably should not. Yet the Votomatic failed to distinguishbetween these ballots and did not count any of them. These "dimpled," "pregnant," and "penetrated" chads generated even more controversy than the hanging ones, and gave rise to much late-night and Internet humor ("Palm Beach is being called the Immaculate Conception county, because a chad can become pregnant without being penetrated").
It was against this confusing background that the Gore camp developed its strategy for turning the election in its favor.
"Count All the Votes"—or at Least the Ones That Favor Gore
The Gore camp's mantra was "count all the votes," but, of course, they were particularly interested in counting Gore votes, and so they used Florida law to fashion a challenge that would maximize their chance of winning. Florida law permits a candidate to seek a hand count in anycounty if he can demonstrate that a preliminary hand count of at least 1 percent of the votes in three precincts "indicates an error in the voter tabulation which could affect the outcome of the election." Accordingly, they handpicked four Democratic counties in which to seek a recount, insisting on the broadest possible criteria for counting a vote, including dimpled, punched, pregnant, and scratched chads. They were behind and needed all the votes they could muster—and they needed them quickly.
Time was of the essence because several deadlines loomed on the horizon. The first was the Florida statutory deadline for certification of the official vote. This deadline—seven days after the election—carried with it both legal and political consequences, which seemed to point in opposite directions for Gore. Legally, certification marks the end of the period in which a candidate may protest an election and the beginning of the period in which the candidate may contest it. If Gore was behind at the time of certification, he would benefit from a longer contest period, which would suggest that he should accept certification as soon as possible and then move to contest. Politically, however, it was important for Gore to delay official certification until he had a chance to pull ahead byhaving votes hand-counted. Timing was everything, and the Bush camp controlled the clock, because Florida's secretary of state, Katherine Harris, who was formally in charge of enforcing deadlines, was a Bush campaign official loyal to Governor Jeb Bush, George's brother.
Even before the Gore campaign's request for hand counts could be acted on, the automatic machine recount mandated by law in close elections had shrunk Bush's lead, according to the Associated Press, to a mere 327 votes out of nearly 6 million cast.
The Bush team became worried at the prospect of being overtaken in a hand count of the four Democratic counties Gore had selected. They considered seeking a federal injunction, but ideology clashed with politics. Many of them were diehard conservatives who had always eschewed federal court intervention into state matters, and the hand count was clearly a matter of Florida law. The principal ground on which they considered challenging the manual count was that the Florida standard for deciding whether to count a ballot—the clear intent of the voter—violated the equal-protection clause of the U.S. Constitution. That clause is part of the Fourteenth Amendment, added to the Constitution following the Civil War, which provides, in relevant part, that " State shall...deny to anyperson within its jurisdiction the equal protection of the laws." The Fourteenth Amendment was passed explicitly to secure the rights of recently emancipated slaves and to prevent official discrimination against blacks. Despite its primary focus on the protection of blacks, the Fourteenth Amendment was drafted in broad and inclusive languageere is no mention of race or anyother defining characteristic in the amendment. Because the legislators who supported the Fourteenth Amendment favored an announcement of the general principle of equality overa narrowly tailored, race-specific provision, the amendment has been relied on to support a variety of non-race-based equal-protection claims. The Supreme Court has found equal- protection violations in cases involving discrimination on the basis of sex or mental capacity and in cases involving discriminatory interference with the right to reproduce, the right to vote, the right to travel, and the right to equal access to the judicial process.
Conservative justices have generally taken a narrow view of the equal-protec tion clause. In recent years, they have used it primarily to strike down affirmative-action programs that have provided benefits to blacks and other minorities. The Washington Post reported, "So sensitive was the question of federal intervention among conservative lawyers that when word of the plan for an equal protection claim began to drift up to Washington, angry conservatives started `telling Republican lawyers all over Washington that it was a terrible argument,"' as one recalled. Several Bush lawyers were particularly concerned about Justice Scalia, who was known for the "hard line" he usually took about "who has the legal standing to bring an equal-protection claim"—that is, who exactly was denied the equal protection of the law. Scalia believed that an alleged victim of discrimination must show "tangible injury and concrete harm," rather than merely a "perception of unfairness." If Scalia were to ask Republican lawyers to identify who the victims were in this case, they would be hardpressed to come up with a persuasive answer. Somein the Bush camp urged that instead of going to court, they should fight recounts with recounts—by requesting them in selected Republican counties. In the end, the decision was made not to seek recounts, for they were viewed as too risky. Bush was ahead—and who could predict what anyrecount, even in Republican counties, would show? The best tactic was to try to preserve the status quo, even if that required a federal lawsuit to stop the hand recounts. The Bush legal team was given the green light to seek a federal injunction, regardless of how ideologically inconsistent such a move would be. This was war, andthere would be plenty of time for ideological consistency after they won.
Bush Goes to Court
The stage was set for the first of many courtroom confrontations. This one was before federal judge Donald Middlebrooks on Monday, November 13. The Bush legal team, headed by Theodore Olson, sought to stop the hand counts, arguing that the Florida standard of clear voter intent was subject to varying interpretations and thus violated the equal-protection clause of the U.S. Constitution. Few experienced lawyers on either side believed they could win on this theory. According to the Washington Post, several of Bush's key lawyers characterized the equal-protection argument as "lame" and "extremely weak."
I certainly thought it was underwhelming as I listened to Ted Olson deliver it to a packed courtroom that morning. I wasthere representing a group of Palm Beach voters who did not want the hand count to be stopped. When my turn came, I argued that if "it is constitutional for the state to have two different kinds of machines, one of which provides a 5 percent margin of error and the other of which provides a 2 percent margin of error, surely it is not a denial of equal protection for that very same state to seek to remedy problems caused by the machine." I also argued that "in the interest of the right to know...what the facts are," the count should proceed. My Harvard colleague Laurence Tribe, who wasthere on behalf of the Gore campaign, made a similar argument, though in somewhat more detail. After politely giving Olson the chance to get in the last word, the judge quickly ruled against him.
Gore still had a barrier to overcome before his request for a hand count could be granted. As previously indicated, Florida law provides that a manual recount may be conducted only if a preliminary hand recount of at least 1 percent of the ballots cast indicates "an error in the vote tabulation which could affect the outcome of the election." The Republicans took the position that the statutory phrase "error in the vote tabulation" meant a hand count was permissible only if the voting machines themselves had malfunctioned, not if voter error had caused the ballot not to be counted.Theresa LePore agreed, arguing that "the vote difference...was not due to machine error." It is only natural, of course, that somevoting officials would prefer to shift the blame from the machines, for which they are responsible, to the voters, who are responsible for themselves. The reality is thatthere is no sharp distinction between machine malfunction and voter error when the machines that are used fail to count votes that are perfectly valid under Florida law.
The confusion resulted, in part, from the fact that the general Florida standard for counting a ballot—"no vote shall be declared invalid or void ifthere is a clear indication of the intent of the voter"—appears in a section of the voting law that deals specifically with damaged ballots. But the Florida courts, including the Florida Supreme Court, have long ruled that the clear-intent standard governs in all situations, including those in whichthere is no damage to the ballot and no machine error. In 1917, the Florida Supreme Court ruled that "ere a ballot is so marked as to plainly indicate the voter's choice and intent in placing his markthereon, it should be counted as marked unless somepositive provision of the law wouldthereby be violated." In 1975, that court reiterated the governing principle that "the primary consideration in an election contest is whether the will of the people has been affected." And in 1998, Florida's highest court made it crystal clear that the voter intent standard was generally applicable even in cases of pure voter error, no machine malfunction, and no damaged ballot. Ruling in a case in which many voters had used the wrong type of pencil to mark ballots that were to be read by optical scanners, a unanimous Florida Supreme Court had ruled that "we construe `defective ballot' to include a ballot which is marked in a manner such that it cannot be read by a scanner," regardless of whether the problem was caused by voter error.
If the Florida legislature disagreed with this entirely reasonable reading of its statutes, it could have amended them. Instead, it effectively ratified the state supreme court's interpretation by changing the voting laws in other respects, while leaving the voter intent provisions unamended.
Failure to clearaway a hanging chad may also be called voter error, analogous to using the wrong type of pencil. But since either a fully punched-through chad or a mark with the wrong pencil reflects a clear intent to vote for the candidate, that vote is legal in Florida, and if the machine fails to count it—even if the machine is not designed to count such a vote—that is machine malfunction as a matter of law. Anyhuman error in not checking for hanging chads or in using the wrong pencil must, under Florida law, be deemed harmless if the intent of the voter is clear. This is particularly so because these Votomatic machines sometimes do and sometimes do not count a ballot with a hanging chad; it may depend on which way the chad hangs and whether it covers the hole. To attribute such randomly uncounted imperfect ballots exclusively to voter error ignores Florida law. I have also been told of instances in which perfectly punched ballots with no attached chads are not counted, perhaps because a loose chad from another ballot blocked the hole or for another reason not attributable to voter error. No machines are perfect, especially the error-prone Votomatics, as evidenced by the fact that virtually everymachine recount produces a somewhat different result. (See p. 226, note 11.)
Moreover, different types of machines produce significantly different rates of error and types of error, andthere were allegations that the rates of error were highest in those areaswhere more blacks and other minorities lived.
On November 13 and 14, conflicting advisory opinions were issued by the Republican-controlled secretary of state's office and the Democratic-controlled attorney general's office. Not surprisingly, the secretary of state ruled that only a machine malfunction, narrowly defined, warranted a hand count, while the attorney general said the failure of a machine to count a ballot that shows the intent of the voter should also trigger a hand count. This conflict was enoughto stop the counting in Palm Beach County, because LePore's lawyer decided not to proceed with the hand count until the conflict was resolved by the courts. The secretary of state, Katherine Harris, then announced that she would not accept anyhand recounts submitted to her after the certification deadline on the seventh day following the election. This ruling set the stage for yet another lawsuit—the one that would eventually end up in the U.S. Supreme Court.
That lawsuit began in the courtroom of Judge Terry Lewis, a Democratic appointee, who ruled for Bush, concluding that Secretary Harris did have the authority to certify the election on the designated day. However, he also gave Gore a Pyrrhic victory, telling Harris that she could not refuse to accept late returns without a good reason. Harris immediately wrote to the county election supervisors, requiring them to provide, in advance, the reasons why they should be allowed to file late returns. This unprecedented demand caught them off guard, and they failed to offer the one argument that would have made it difficult for Harris to refuse late returns. Earlier, she had given as an example of a good reason a broken machine. Yet despite the trouble-plagued Votomatic machines, none of the supervisors offered this reason—which was the actual reason for the delays. As the Washington Post subsequently reported:
Two and a half weeks later, the Gore campaign would present evidence in court that aging Votomatic machines are plagued by problems—the rubber strips can harden, the punched chads can pile up, all sorts of things can happen to make it more difficult to vote properly. But at this point, no one thought to allege a mechanical problem. Had they done so, in the words of Donna Blanton, a key lawyer for Harris: "It would have been a different story."
On November 18, Harris was set to certify Bush as the winner, but the Florida Supreme Court intervened, deciding to preserve the status quo pending its decision on the merits of Gore's appeal. This meant that the secretary of state could not make anycertification of a winner and that the hand count could continue. This was a victory for Gore. Before the Florida Supreme Court could hear and decide the case, Bush's lead increased to 930 votes, based on overseas absentee ballots. But there were questions about many of these votes—questions that would soon create a major dilemma for the Gore camp.
On November 21, the Florida Supreme Court reiterated its prior interpretation of Florida law as requiring the counting of all ballots in this election that reflected the clear intent of the voter, regardless of whether the failure to count the vote was the result of machine error or voter error. It also ruled that in order to give meaning to the statutory mandate, the deadlines for certifying the vote would have to be extended twelve days. This was a victory for Gore, but it also presented a daunting challenge: The Gore team had to find more than a thousand votes in less than a week. Their great hope lay in Miami-Dade County,where old machines had failed to count approximately ten thousand votes. The three-member Miami-Dade Canvassing Board originally decided against a hand count because of the difficulty of meeting the deadlines, but they soon changed their decision and the counting began. Then something unprecedented in American politics occurred.
Congressman John Sweeney, a Republican from New York, led a group of Republican operatives to the site of the counting, with the mission—in the words of Sweeney—to "shut it down." They banged on doors and windows of the buildingwhere the Miami-Dade votes were being hand-counted and chased people into elevators, raising the specter of physical violence.
According to Wall Street Journal columnist Paul A. Gigot— who wrote an admiring article about what he called the "semi- spontaneous combustion" that produced a "bourgeois riot"— the Republican apparatchiks "let it be known that 1,000 local Cuban Republicans were on the way." That must surely have scared the hell out of the three "Anglo judges"—the canvassing board, who served in a quasi-judicial capacity—whothereupon "caved," as Gigot put it, reversing their previous determination to recount with the sudden decision to stop counting anymore votes at all. This may have been the first time in modern American history that a mob succeeded in shutting down a quasi- judicial proceeding. Yet the Pulitzer Prize-winning Gigot praised the riot, asserting it "could end up saving the presidency for George W. Bush." In an investigative report, the New York Times disclosed that, according to Gore's supporters, ending the Miami-Dade count "marked the real end of campaign for the White House."
In the meantime, the Bush team, furious at the Florida Supreme Court decision extending the deadline for certification, decided to seek review by the U.S. Supreme Court, and on November 24, the Court shocked most experts by agreeing to hear the case. In granting review of the Bush petition, the justices limited the argument they would hear to the claim that the Florida Supreme Court had violated Article II of the U.S. Constitution by changing the law as enacted by the Florida legislature. It declined to review the Bush equal-protection claim. Two days later, Harris certified Bush as the winner by 537 votes. It had been a very good week for Bush—so good that his legal team actually considered withdrawing their appeal from the U.S. Supreme Court. It looked as if they were on track to win without anyhelp from the justices, because with the protest periodhaving ended with the certification, Gore had only sixteen days to contest the Bush victory before the next deadline kicked in.
This one, called the safe-harbor deadline, was to assume a critical role in the case. As noted previously, the safe-harbor provision holds that if a state makes its final determination of who its electors shall be at least six days before the Electoral College meets, that determination is conclusive. The Florida Supreme Court expressed concern overthis deadline, and Gore's lawyer, David Boies, acknowledged during oral argument that it was a deadline that had to be taken seriously. It would be awfully difficult for Gore to catch up to Bush before December 12—unless a court disqualified enough Bush overseas absentee votes. Andthere were problems with these votes, since the Seminole County Canvassing Board had allowed Republican Party volunteers to fill in missing data on absentee-ballot applications completed by registered Republicans—a violation of Florida law—and many overseas absentee ballots from members of the armed forces lacked the postmarks required by law.
The Overseas Absentee Ballots
The Gore mantra of "count everyvote" would be inconsistent with a Gore effort to challenge absentee votes on a legal technicality, especially since the intent of these voters was quite clear. Some Gore advisors took the position that if the Bush camp could violate its own principles by making liberal-activist arguments to the federal courts, why should the Gore camp have qualms about such a challenge? The difference, of course, was that only lawyers and Court watchers understood how inconsistent the Bush camp was being; judicial restraint is not a concept widely understood by the general public. "Count every vote," on the other hand, was a slogan intended for the general public, and it washaving a positive effect. To abandon that salutary position in order to gain a tactical advantage would appear unprincipled. There was, however, a third way. The Gore camp could announce that they remained committed to the principle of "count every vote," and so long as every vote was, in fact, being counted, they would not challenge any absentee ballots. But if the Bush camp persisted in challenging the hand counts, the Gore team would demand consistency: Either count them all or challenge your opponent. The Bush team should not be able to have it both ways. In the end, the Gore team took yet a fourth way: They did not challenge the overseas absentee ballots, but they did not try to stop Democratic voters from doing so. An African-American judge who had been appointed by a Democrat and passed overfor promotion by Jeb Bush ruled for George W. Bush and refused to disqualify the absentee ballots.
The Supreme Court's Initial—Unanimous—Decision
The Bush team decided to go forward with its case in the U.S. Supreme Court, and on December 3, 2000, the justices issued a unanimous per curiam opinion vacating the Florida Supreme Court's unanimous decision of November 21, which had ordered the manual recounts to continue and had extended the certification deadline by twelve days. The high court remanded the case back to the Florida Supreme Court for clarification of its opinion. The U.S. Supreme Court justices focused on Article II of the U.S. Constitution, which gives each state legislature the authority to determine how the state's electors shall be chosen. They were "unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature's authority under Article II, Sec. 1, cl. 2 of the United States ." In other words, the justices suggested that the Florida Supreme Court may have given too much weight to the Florida constitution in interpreting the statutes enacted by the Florida legislature. In fact, the Florida Supreme Court, in its "unclear" decision, had done exactly what courts—state courts, federal courts, and the Supreme Court—have done for centuries: It described a conflict it saw between two statutes and tried to resolve it by looking to the intent of the legislature, the text of the applicable constitution, and previous case law.
The conflict, which was apparent on the face of the statutes, was the following: One part of the Florida election law authorized a man ual recount in anycounty challenged by a candidate ifthere was "an error in the vote tabulation which could affect the outcome of the election"; another part of the law required that the results must be submitted within a week of the election—a deadline that would make such a recount impossible in many cases. Construing the Florida election "as a whole" and employing "traditional rules of statutory construction to resolve these ambiguities," the Florida Supreme Court issued a narrow ruling. (It expressly declined "to rule more expansively, for to do so would result in this Court substantially rewriting the Code." It left "that matter to the sound discretion of the body best equipped to address it—the Legislature.") It found that "the legislative intent evinced in the Florida election code" could be served only if the recount was given a reasonable time for completion, consistent with federal deadlines. It set the recount period to end on November 26, 2000—a full sixteen days before the safe-harbor provision of federal law kicked in.
It would be difficult to imagine a more traditional state court decision, and one that more consciously paid deference to the legislature. After all, someone had to resolve the conflict between two inconsistent pieces of legislation. The problem would not solve itself. And it has long been the role of state courts to resolve legislative ambiguities and conflicts. Accordingly, almost no knowledgeable student of the U.S. Supreme Court expected the justices to intrude into this matter of state law.
But intrude they did—not just the five who eventually gave the presidency to Bush, but all the justices. In doing so, the justices broadly hinted that the Florida Supreme Court had not deferred sufficiently to the legislature. We now know that the Supreme Court was sharply split even then and that it was the eventual majority five who drove the decision to intervene in the first place. According to Linda Greenhouse of the New York Times, the minority four "were startled to learn from a memorandum that circulated shortly before the justices met on the day after Thanksgiving to discuss the appeals that the votes werethere to take the case." In other words, the five-justice majority had already decided this matter behind the backs of their colleagues. The fact that this first decision was unanimous and per curiam "papered over" the actual division that existed among the justices. The four justices who did not want the Supreme Court to take the case apparently hoped that by joining the per curiam and remanding the case back to Florida, they might keep it from coming back; they assumed that because events were moving so quickly on the ground, "the election would be overbefore the case could come back to haunt the Supreme Court again."
In retrospect, it appears that the minority four were duped, or at least outmaneuvered, by the majority five. Linda Greenhouse reported that "the view held in somequarters at the court"—which is a good reporter's way of saying that at least one minority justice told her in confidence—was that "the initial fateful decision to hear the first case made the eventual outcome all but inevitable, that a narrow majority had set the court on a path from whichthere was no logical exit unless the Florida Supreme Court itself backed down."
Whether or not this is true, it is perfectly clear that the unanimous per curiam opinion of the U.S. Supreme Court set a trap for the Florida Supreme Court from which it could not escape. Whether the minority justices, who joined in setting the trap, were aware of what they were doing is unclear. That at least someof the majority justices knew they were setting a trap now seems obvious.
In a strange reading of the U.S. Constitution, the Supreme Court per curiam opinion implied that Article II, section 1, clause 2 vests solely in the state legislature the authority to decide how electors shall be appointed, even if the state legislature enacts laws that conflict with each other or with the state constitution. Here is the text of that provision:
Each State shall appoint, in such Manner as the Legislaturethereof 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. (Emphasis added)
The Court seemed to be suggesting that these words require the state supreme court to abdicate its usual responsibility to reconcile conflicting laws. Consider, for example, the following hypothetical case: A state legislature enacts a statute prohibiting the selection of anygay elector, in the face of a state constitutional provision forbidding discrimination on account of sexual orientation, and the state supreme court properly strikes down that statute as unconstitutional.80 Under the rationale of the Supreme Court's December 3 per curiam opinion, the state supreme court might lack the power to impose its own constitutional requirements on its own legislature—which is a creation of the state's own constitution—in a presidential election case.
This view simply ignores the history of judicial review since shortly after the founding of our nation. When the U.S. Constitution was ratified in 1788,there was no explicit mention of the power of the courts, including the Supreme Court, to strike down legislation that was inconsistent with the Constitution. That power was explicitly recognized by the Supreme Court in its 1803 decision in Marbury v. Madison—perhaps the most significant decision in its history—which ruled that "if two laws conflict with each other, the courts must decide on the operation of each," which is precisely what the Florida Supreme Court did.
More broadly, that foundational case recognized that all legislation must be consistent with the constitution that authorized it, and that the courts are empowered either to impose that consistency by interpreting statutes so as to bring them in line with the relevant constitution or, if they cannot be interpreted in a constitutional manner, to declare them unconstitutional. As Chief Justice John Marshall put it: "It is emphatically the province and duty of the judicial department to say what the law is." Indeed, "this is the essence of judicial duty." Nor is that judicial duty limited to the U.S. Supreme Court; it inheres in all courts. The Marbury Court went out of its way to emphasize that it had based its broad ruling on general principles applicable to all courts that confront conflicting laws.
This has been the understanding of the role of courts for nearly two hundred years—until the Supreme Court's preposterous suggestion in its per curiam opinion that Article II takesaway the power of a state supreme court in a presidential election to do in relation to its legislature exactly what the U.S. Supreme Court is empowered to do in relation to the Congress, namely, to reconcile conflicting statutes so as to bring them into conformity with the Constitution. If the U.S. Supreme Court read Article II in this most literal, ahistorical manner—that the U.S. Constitution empowers the state legislature alone to decide how electors are to be selected—then it would logically follow that not only could the Florida Supreme Court not perform its traditional judicial functions, but neither could the U.S. Supreme Court. Moreover, this would still not resolve the conflict between two irreconcilable state statutes. If the courts are stripped of their traditional role, who would decide which statute controls?
How the justices who later dissented could have brought themselves to join this per curiam opinion defies understanding—unless they, too, were playing a game, trying to prevent a result with which they disagreed by forestalling the possibility that the Court would have to overrule the state court. Perhaps they were seeking to show apparent unanimity, despite the reality of deep division.
In any event, because the per curiam opinion was unanimous and because its meaning was so unclear—far less clear than the Florida Supreme Court's opinion it asked to have clarified—it sent an ambiguous message to the Florida Supreme Court. First, it warned against tampering with Florida election law, even if sometampering was required to make it conform to the Constitution. And second, by not saying anything about the equal- protection clause—indeed, by explicitly denying review of the Bush claim that a manual recount employing different standards for counting questionable ballots denied him equal protection— the per curiam implied that the justices did not think that the use of such different standards created an equal-protection problem. The combined message of this confusing Supreme Court per curiam remand was that (1) even if the FloridaSupreme Court could solve the problem of differing standards by interpreting the Florida statutes so as to require a uniform standard—say, that hanging chads count but dimpled chads don't—it should not do so, because if it did, it might run afoul of Article II; and (2) if it didn't,there would be no equal-protection problem.
Faced with these mixed messages, the Florida Supreme Court split, 4-3, in its next ruling. That ruling came in an appeal from the order of Judge N. Sanders Sauls, which had stopped all hand counts on a number of legal grounds. The majority of the Florida Supreme Court reversed Judge Sauls and ordered an immediate hand tabulation of "the approximately 9,000 Miami-Dade ballots which the machine registered as non-votes, but which have never been manually reviewed." It also directed that all other "legal votes" that had been counted in Palm Beach County must be added to the final tabulation. And it ordered "all counties that have not conducted a manual recount or tabulation of the undervotes in this election to do so forthwith." Because it apparently felt disempowered by the Supreme Court's per curiam opinion to do otherwise, the Florida Supreme Court ruled that the standard to be applied in these recounts must be the one explicitly established by the Florida legislature:
In tabulating the ballots and in making a determination of what is a "legal" vote, the standards to be employed is that established by the Legislature in our Election Code which is that thevote shall be counted as a "legal" vote ifthere is "clear indication of the intent of the voter."
The Florida Supreme Court thus followed the advice implicit in the unanimous per curiam opinion: It applied the Florida legislative standard without trying to narrow it further so as to eliminate anypossible equal-protection concerns. Little did it know that the advice it was following was a catch-22.
This Florida Supreme Court decision was issued a little before 4:00 p.m. on Friday, December 8, 2000, and the counting began shortlythereafter. But at 2:40 p.m. on Saturday, December 9, 2000, the U.S. Supreme Court, in a 5-4 ruling, sprang its equal-protection trap. It granted a Bush application for a stay,thereby stopping the counting. That decision effectively ended the election and gave it to Bush. No vote was ever again officially counted in the Florida presidential election after the stay was issued. In its eventual decision on the merits, the majority ruled that the Florida justices did have "the power to assure uniformity," and if that court had simply imposed a uniform standard for the recount,there would have been no equal-protection problem.84 But they had earlier—in the per curiam opinion— warned against anysuch tampering with Florida election law. Gotcha!
The Supreme Court Stay
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 argument. 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. Even when it comes to executions, however, this Court has been reluctant to stay scheduled state executions. For example, in cases in which four justices voted to review an inmate's death sentence, none of the justices who voted for a stay in the Florida election case voted to stay the execution pending full briefing and argument. In these cases, the majority justices voted to allow the execution to proceed even though the case was scheduled for argument in front of nine justices who were all supposed to have open minds on the merits of the case and who mighttherefore be persuaded that the defendant should not be executed.86 Unlike in Bush v. Gore, Justice Scalia did not bother to explain his vote in those cases, despite ringing dissents signed by several justices. In Watson v. Butler, in which four justices voted to "hold" the case—that is, to withhold judgment about whether or not to review this case until a decision was rendered in another case that raised the same issue—Justice Brennan wrote the following unanswered dissent:
Four members of this Court consider the above view sufficiently compelling to have voted to hold this case until Lowenfield another case scheduled for argument that raises the same issue as this case is decided....t it takes five votes to stay an execution. The Court today thus permits Mr. Watson's legal claim to stay alive while condemning Watson himself to die under a sentencing scheme that within a matter of months the Court may conclude is unconstitutional. Half the Members of this Court believe that Watson's claim might be indistinguishable from Lowenfield's, yet tonight Watson will be executed while Lowenfield may prevail and be spared. This prospect is the ultimate derogation of the Court's duty to provide equal justice under law.
Yet despite this compelling claim of equal protection and irremediable harm, the Supreme Court majority allowed Watson to be executed.
In a subsequent case, Hamilton v. Texas, the Court actually voted to hear the defendant's case—it granted full review—but the majority voted to deny a stay, prompting Justice Brennan to observe that "for the first time in recent memory, a man will be executed after the Court has decided to hear his claim."
The very idea of allowing a man to be executed before his case has been argued and decided by the Court, whose own rules require the case to be heard and decided on its merits,is barbaric, whatever one may think of capital punishment. Yet four of the same justices—Rehnquist, O'Connor, Scalia, and Kennedy—who were so anxious to grant the stay in the Florida election case, voted to deny the stay in Hamilton. The defendant in this case was executed before his case could be briefed or argued. His case was then dismissed as moot! Dead men have no rights, even if their death was caused by the action of the Supreme Court in denying a stay of execution.
In contrast to the irremediable harm in a capital punishment case, what was the harm in the Florida election case? What possible harm could result from merely counting ballots by hand? If the Supreme Court ultimately ruled that these ballots should not have been counted, they could simply be eliminated from the tally. Moreover, in the process of counting, new and relevant information might be learned. For example, it might have turned out that, contrary to claims made by the Bush camp, most counters actually employed the same standards in discerning the intent of the voters. It might have turned out that one candidate or another had a sufficient margin of vic- tory without counting anyballots with dimpled or perforated chads. Or it might have turned out that the situation was more complex, with somenew information favoring the Bush position and somefavoring the Gore position. But with the counting stopped, the justices could focus—as they did—on the worst-case scenarios, all of which favored Bush's constitutionalarguments.
Realizing thatthere would be an outcry against stopping the count before anyargument, Justice Scalia decided to write an unusual opinion explaining why he voted for the stay and why Justice Stevens, who wrote a short opinion for the four dissenters, was wrong. On the issue of irreparable harm, 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 legality 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.
But disputed ballots are generally counted before they are challenged and their legality is ruled upon. Indeed, that chronology is explicitly mandated by Florida law—enacted by the very state legislature that Scalia believes has the power to make thesedecisions.
In any event, unless the questionable ballots were to be burned—which some Republican partisans actually proposed— they would eventually be counted by the media, and if it turned out that there had been enough unquestionable votes for Gore (without counting dimpled chads, for example) to give him a victory, then a cloud certainly would have been placed over Bush's victory. At the time the majority issued the stay, it could not know whether the result of continuing the recount would be a victory for Gore or Bush. Its logic suggests that it assumed that the recount might well have produced more votes for Gore.
The difference between "count first," which Scalia rejected, and "stop the count before deciding the case," which he accepted, is that if the official hand count was stopped and Bush became president, and the media count then eventually proved that a plurality of all the legal votes had been cast in favor of Gore,there would be nothing anyone could do—Bush would still be president even though by right he should not have been. That would truly be irreparable harm. But Scalia never mentioned that possibility, because to him, it apparently would not be a harm. No wonder the columnist Mary McGrory said that "Antonin Scalia...might as well have been wearing a Bush button on his robes." As one long-term Court watcher, who did not want his name used, told me: "Scalia's stay opinion was the single most disingenuous opinion by a justice I have ever read."
One commentator, Ronald Brownstein, writing for the Los Angeles Times, may have been on target when he observed, immediately after the stay was granted, that "the more disturbing possibility is that Scalia and his allies were worried less about Bush's legitimacy than their own." At the time, it seemed likely that a recount would put Gore ahead in Florida's popular vote, and Brownstein's point was that the majority justices may have been concerned about the repercussions for themselves of overturning the state court's ruling after the recount and hence disregarding the actual vote totals. Stopping the counting would ensure that the justices would not have to confront this situation. It "appears," he concluded, that "the majority may have tried to reduce its own short-term political exposure—even at the price of increasing the long-term uncertainty about who really won Florida."95 This analysis, of course, presupposes that the majority knew all along that their eventual decision would favor Bush.
The New York Times agreed with Brownstein's analysis, suggesting that the stay gave the appearance of "racing to beat the clock before an unwelcome truth could come out." Terrance Sandalow, former dean of the University of Michigan Law School and a judicial conservative who supported the nomination of Robert Bork to the Supreme Court, concluded that "the balance of harms so unmistakably were on the side of Gore" that the majority's decision to grant the stay was "incomprehensible" and that it was an "unmistakably partisan decision, without anyfoundation in law."
Justice Stevens, who was appointed by President Gerald Ford, a Republican, and who dissented from the stay, got it exactly right:
Counting everylegally cast vote cannot constitute irreparable harm. On the other hand,there is a danger that a stay may cause irreparable harm to 011—and, more importantly, the public at large—because of the risk that "the entry of the stay would be tantamount to a decision on the merits in favor of "...Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.
One reason why courts are generally reluctant to grant stays before full briefing and oral argument is that the justices are supposed to remain open-minded about the result until both sides have had the opportunity to present their arguments. But in this case, as in the capital cases in which stays were refused after certiorari was granted, five justices had already made up their minds. I am reliably informed that work had already begun on the opinion giving the election to Bush before anybriefs were received or anyarguments heard. Scalia virtually acknowledged that the case had already been decided when he wrote in his stay opinion that Bush was likely to prevail.
All the debate overwhether Gore's lawyers did or did not do a good job is massively beside the point. No one could have persuaded these five justices to change their decision, because the only fact relevant to their decision was not subject to reasoned argument: If the counting was stopped, Bush would win. It is, of course, possible that if the Supreme Court had not stopped the recount, Bush might have won anyway (putting aside the butterfly ballots, the misaligned ballots, the barriers to black voting, the irregularities with absentee voting, and other issues that were not before the Supreme Court). In assessing the integrity of the majority's ruling, this possibility is, of course, beside the point. The crucial point is that at the time they ruled, the justices had absolutely no idea which way the counting would have come out. Indeed, their finding of "irreparable harm" suggests that they anticipated the real possibility, if not probability, that Gore would have gotten more votes,thereby "casting a cloud" on the victory Bush would eventually achieve after the Court ruled that those votes were invalid. But if the Court had refused to grant the stay and Bush had gotten more votes, his election would not have been tainted by doubt, and the Supreme Court's credibility would not have been tarnished by partisanship. Apparently, the justices were so determined to ensure a Republican victory that they engineered a short-term resolution locking in that victory—at the risk of considerable long-term costs to the Bush presidency and the credibility of the Supreme Court.