The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Thursday, October 12, 2006

How did the Supreme Court Decide the Election of 2000?

Listen to The Election of 2000

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As is well known, the Presidential election of 2000, between George W. Bush and Al Gore, hinged on the Florida electoral votes.  Ultimately, it was decided by the Supreme Court, in the case of Bush v. Gore What constitutional issues were involved?  In this episode, I will try to make sense out of the logic that the majority faction of the Court (even this is in dispute - was it 7-2 or 5-4) used.  My sources are the Constitution, the actual text of the decision and the minority opinions, and articles from legal scholars.  I also cite my previous episodes about the election of 1800 and the election of 1876.  Amazingly, this was the 4th time in United States history that the candidate who became President had lost the popular vote.  The others were the Election of 1824 (John Quincy Adams v. Andrew Jackson), The Election of 1876 (Hayes v. Tilden), and the Election of 1888 (Benjamin Harrison v. Grover Cleveland).

First, some background.  On Election Night, November 7, 2000, based on exit polls, the TV networks and CNN had declared that Gore had won the Florida electoral votes, and thus the Presidency, only to reverse themselves a few hours later.  State results tallied on election night gave 246 electoral votes to Bush and 255 to Gore, with New Mexico (5), Oregon (7), and Florida (25) too close to call at the time. Since 270 electoral votes are required to win, Florida would put either candidate over the top, and the other two states were irrelevant.  (Gore eventually was determined to be the winner in New Mexico and Oregon.)

On November 8, 2000, the Florida Division of Elections reported that Bush had a majority of 1,784 votes.  Since this was less than 1/2 of 1% of the votes cast, Florida state law mandated a recount of the machine tabulated votes.  The recount, completed on November 10, resulted in a much smaller majority for Bush (327).

Florida's election laws allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward, and Miami-Dade. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, i.e., November 14.  By the deadline, only Volusia County had finished the manual recount, leaving the Democratic-leaning counties of Palm Beach, Broward, and Miami-Dade with an incomplete manual recount.

Florida's Secretary of State, Katherine Harris, a Republican, requested these counties to show cause that they needed extra time beyond the deadline.  She rejected their explanation, and announced that she would certify the ballots on November 18th.  The Gore legal team sued to prevent Harris from doing this.  The Florida Supreme Court agreed, issuing an injunction against Harris' contemplated action.  On November 21, the Florida Supreme Court ordered Harris to accept the results of any manual recount completed by November 26th.

Both the Bush and Gore teams made a number of legal maneuvers.  Harris certified the election on November 26th.  Miami-Dade had started a recount and then stopped it because the County felt it couldn't complete the recount in time.  Gore contested the certification in the Florida courts.  The court ordered a partial recount of only certain types of votes (the "undervotes") in certain counties.  Bush challenged this procedure.  On December 9th, the Florida Supreme Court issued an injunction to stop the recount.

The Supreme Court took the case on December 11, and in an extraordinary display of speed, issued their decision, effectively stopping the recounts and awarding the election to Bush, just 16 hours later.  Time was of the essence, because a certified list of electors was necessary by December 12th, 6 days before the meeting of the Electoral College on December 18th.  Otherwise, Congress, as in 1876, would have had to certify the Florida electors.

What was the constitutional basis of their ruling?  The majority decision, after citing the facts of the case, made the following comment:

The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon.    Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot....In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.

and goes on to write

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

Indeed, the Constitution, in Article 2, Section 1, Clause 2, states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

Basically, you cast your vote for electors in your state pledged to your candidate, and then cross your fingers that your state has in place a legal mechanism to count your vote.  The procedure defined by the state should be controlling.

The Florida standard was to determine "the intent of the voter" - in other words, examine the evidence (hanging chads, dimpled chads, butterfly ballots, whatever) and try to figure out what the voter's intent was.  This was the Gore position as well.

The Bush legal team, however, argued that since the recount used different rules in different counties, and, in the case of Broward County recount, different rules in the same county, not all votes were recounted in the same way.  Of course, the Court's ruling, cited earlier, was that not all votes were originally counted the same way either.  But no matter.  Bush claimed that this is unfair treatment of votes violates the Equal Protection clause of the 14th Amendment.  The Court agreed with Bush - the Florida Supreme Court needed to come up with a standard recount procedure, even thought the original vote was not subject to such a standard.  According to the Court:

The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards.

This contradicts what the Court wrote earlier.  In the original vote, indeed of any Presidential election, not all votes are counted equally.  So why should this happen in the recount?  And if the Florida Supreme Court's ruling was unconstitutional, why stop the vote entirely?  What kind of remedy is that for the alleged 14th amendment violation?

Indeed, this was Justice Breyer's argument in his dissenting opinion:

Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard.

In other words, continue the recount and count as many votes as possible.

The US Supreme Court trampled on state sovereignty.  According to Rehnquist's concurring opinion, there's an exception for this:

In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns...But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, ยง1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.

Justice Ginsburg strongly dissented:

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree...

She also write "I dissent", instead of "I respectfully dissent", probably reflecting her disdain at the verdict.

Here's my take - the 5 justices who ruled in favor of Bush did not want Congress to certify the Florida electors - with the possibility of a repeat of the Election of 1876 - and the possibility of overturning a Bush victory.   December 12 was the absolute deadline, so Justice Breyer's idea of continuing the recount was a non-starter.  That was the goal.  The majority simply concocted some reasoning allegedly based on the Constitution to achieve the goal, thereby ignoring the wishes of the other 4 justices, the voters of Florida, and the will of the United States electorate.   As Justice Scalia later remarked about debates on this case, "get over it".


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