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JURIST officially introduces an expanded roster of Forum Contributing Editors with this special kickoff essay by constitutional scholar David Kairys.
Breaking what he calls the “odd silence” about the U.S. Supreme Court’s Bush v. Gore decision, Kairys places that decision in the context of voting rights and equal protection trends, and questions how we talk about and criticize legal rulings. For example, he suggests that “[i]f it’s a contradiction for the conservative justices to all-of-the-sudden favor federally imposed equality requirements over states’ rights, it’s also a contradiction for liberals to favor states’ rights over federally imposed equality requirements."...
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BUSH v. GORE BLUES
Professor David Kairys
Beasley School of Law, Temple University
JURIST Contributing Editor
An odd silence hangs over public life. There is a general sense that something amiss occurred when a razor-thin majority of conservative Supreme Court justices handed the presidency to their favorite candidate. One hears occasional grumbling. But there’s little said about it in the chambers of government or in the media, and what talk there is usually ignores the history and recent law of voting rights and equal protection, which formed the basis for the Supreme Court decision. We seem dazed, our political eyes stuck in the headlights of that 37-day-long election night.
It’s hard to tell whether we’re in denial, suppressing rage, or just worn out. Politics does require these days long hours watching CNN or MSNBC when absolutely nothing happens. But a president was selected by judicial fiat. Beyond the chads and dimples and voting machines with which the media became obsessed, there was a historic judicial intervention that raises the most basic questions about voting, equal protection of the law, electoral systems, and the nature and function of courts and lawyers. The speed with which we returned to normal–or the appearance of normal–is numbing. We really need to talk about Bush v. Gore.
In the criticism of Bush v. Gore that has appeared, there’s been a familiar tendency to hurl accusations of deviance from legal norms without specifying or concretely substantiating the norms1, and without attention to the annoying two-sidedness of contradictions. If it’s a contradiction for the conservative justices to all-of-the-sudden favor federally imposed equality requirements over states’ rights, it’s also a contradiction for liberals to favor states’ rights over federally imposed equality requirements. And the major criticism that the conservative justices were outcome-driven has been thrown out without any discussion of whether that is as unusual as is easily assumed.
While we argue about law and particular decisions all the time, there is a very deep American belief in law and the essential fairness of the legal process. This belief underlies our turning over more of our society’s most important issues and controversies to courts and lawyers than does any other nation. When we say we want government of law, not people–which we say a lot–we’re preferring decision-making characterized by a value-free, neutral judicial process rather than a value-laden, contentious democratic process. I find this conception, which idealizes law and denigrates democracy, related to the comparatively underdeveloped state of our political and electoral discourse. In any event, it affects how we make and receive criticism of legal decisions.
We tend to assume that if decisions were done properly, they would come out how we prefer, and to condemn decisions that don’t come out our way as deviating from judicial norms. Both sides in the abortion debate believe that the Supreme Court, if it made the legally correct ruling, would come out their way. When an important decision doesn’t come out our way, it is regularly perceived and condemned as deviating from the correct legal process. Such debates are removed from the substance of the matter (and from consideration of the unusually broad scope of judicial power in our system); the focus, instead, is on claims of deviation from legal norms.
For example, “judicial activism” is a more common focus for legal criticism than the values at stake in a particular decision. Judicial activism is now a frequent conservative and Republican legal criticism, but in the past it has characterized a range of political positions and parties who oppose Supreme Court trends or particular rulings. The most strident and successful advocate of judicial restraint in our history was liberal President Franklin D. Roosevelt, who opposed a conservative Supreme Court that invalidated child labor laws and laws establishing minimum protections for working people and the “safety net” we now take for granted. One can fairly describe the history of our public debates about law as a series of cyclic claims of improper judicial activism made by those who lose control of the courts.
The starting point and context for an understanding of the Supreme Court rulings and the legal and political strategies of the Republicans and the Democrats is the Bush campaign’s decision to oppose and attack the recount process in Florida. Their position was unusual–unprecedented isn’t an exaggeration. Recounting the votes in a close election is the legally and politically accepted practice throughout the country. How it is done depends on the voting system, but where the system uses paper or any type of ballots that can be physically examined after the voting, they are regularly examined by hand. Opposition to a recount by the initial winner is not unusual, but it is almost always based on a claim that the process worked as it should or that the number of disputed votes is less than the margin of victory.
The Bush campaign did argue that the process worked as it should, but that was not plausible and was unlikely to stop hand recounts or another possible remedy, a statewide re-vote. There were large numbers of voters who, according to the machine count, went to their polling places but didn’t vote for any presidential candidate or voted for more than one; African American voters claimed they faced a range of inappropriate obstacles; and the Palm Beach ballot, which quickly achieved the status of a national joke, obviously led to a significant undercount of Gore votes. The initial count was so close that any one of several errors could tilt the balance.
The Bush campaign organized a concerted effort to attack and discredit hand recounting. Never mind that both parties have regularly demanded and gotten hand recounts throughout the country, or that there are many Republicans and Democrats who won their offices because of such recounts. There’s also little doubt that in future elections Republicans will insist on hand recounts when they lose close races.
Hand recounting is the fairest and most reliable method for recounting because representatives of all the candidates can observe the inspection of each ballot and any disputed ballots can be questioned and examined in court. It’s not perfect. There are regularly differences in observations and differing judgments among various people looking at the same ballot, and such differences often tend to align with which candidate an observer supports. But this criticism applies as well to everything done by courts: witnesses testify with often differing perceptions of the same event, and lawyers’ arguments tend to align with the interests of their clients. We regularly ask judges and juries to hear all this and decide; and in the case of ballots, the actual, ultimate evidence is there for appellate courts and everyone else to see.
Nevertheless, the Bush campaign, in the most strident, accusatory terms, attacked hand recounting as a form of undemocratic barbarism that was being used to steal the election from Bush. Hand recounts, they said, were unreliable, biased, inferior to machine counting. In contrast, they depicted machine counting as virtually error-free, although it obviously isn’t and its errors are hard to discover or observe. Technology was exulted over human judgment.
Further, passing a ballot through the machines became the Bush campaign definition of being counted. They argued publicly and legally that the machine recounts meant that each and every contested ballot was both counted and recounted–although, since the machines read only completely open holes on the ballots, many machine “counted” ballots did not appear in the machine tallies for either candidate.
I have not been able to find any other instance in which Republicans, or anybody else, took such positions. And it seems hard to believe they risked it or got away with it. Perhaps the Bush campaign relied on a predictably weak, narrowly legalistic response by the Democrats–who projected confusion and defensiveness while the Republicans projected a sense of entitlement. But the position the Bush campaign took was extreme and vulnerable. They decided to stop the hand recounts, at all costs and by any means, including intervention by the Supreme Court, which even conservative legal commentators almost uniformly thought inappropriate and unlikely. This Bush strategy seems to have been based on a central reality that has so far eluded public debate or consciousness.
The Bush campaign, like the Gore campaign and the major media, knew, based on early returns and exit polls, that the uncounted ballots came from predominantly Democratic neighborhoods and were cast mainly by voters who meant to vote, and thought they were voting, for Gore. This now seems hardly in dispute. There are a range of ways to examine the ballots and varying possible standards for determining which should be counted (the chad and dimple problems). That is a matter of still contested standards and evidence that could result in counting some portion of the uncounted votes. But the bottom line is that a majority of Florida voters thought they voted for Gore, and if the voting system accurately counted the votes of all who voted, Gore would have won.
There is a potential scandal here, of a magnitude greater than Watergate or anything Bill Clinton did. The Bush campaign adopted a strategy of opposition to hand recounts on grounds and arguments that they most likely did not believe in. Those grounds and arguments were used to prevent any hand recounts, or to render them as ineffectual as possible, knowing that the more effective the hand recounts, the more likely that the true, intended vote tally would be recognized and Bush would lose. They also had to realize that the only real chance for this strategy to be successful lay in five conservative votes at the Supreme Court, although a decision vindicating their extreme position would have to rely on some novel theory that contradicts conservative trends and would require the conservative justices to exercise judicial activism and to favor federal supremacy over the states in a matter the Constitution explicitly leaves to the states. If a liberal Supreme Court majority handed Gore the election in similar circumstances, we’d be in impeachment hearings now for Gore and the majority justices, and construction crews might be rebuilding the Supreme Court.
On December 9, 2000, the Supreme Court issued a stay in a federal lawsuit brought by the Bush campaign, Bush v. Gore2, that stopped all hand recounts in Florida. After much litigation and wrangling, hand recounts were proceeding efficiently and would likely have been completed by the “safe harbor” date, December 12. Instead, late on December 12, the Supreme Court ruled that the standard being used for the hand recounts–the only standard provided by the Florida legislature, the “clear intent of the voter”–fails to satisfy equal protection and voting rights requirements that voters and votes be treated nonarbitrarily and equally. Seven justices joined in this substantive ruling, but only five justices–Rehnquist, Scalia, Thomas, Kennedy and O’Connor–joined in an additional ruling that prohibited hand recounts from proceeding at all, without giving the Florida courts the opportunity to adopt better standards.
The conservative majority of five justices deviated from two types of norms. First, some of their rulings were inconsistent with settled, highly predictable rules, practices or outcomes. Second, the conservative majority justices deviated from rules, outcomes or trends that have characterized their own prior decisions.
The most significant of the deviations from settled norms were the stay (on December 9, 2000) that stopped the hand recounts in Florida and the refusal to send the matter back to the Florida courts after the decision (on December 12, 2000) that required more concrete and specific standards for hand recounting.
Stays of lower court decisions are rare, particularly by federal courts in matters left to the states. The established standard, in addition to a likelihood of success on the merits, is “irreparable harm,” which prompted the justices dissenting from the stay to say that whatever harm there could be from the hand recounts could be undone by a decision later, without a stay, and was therefore not irreparable. The 11th Circuit Court of Appeals, though dominated by conservatives, denied the stay before the Supreme Court granted it.
When the Supreme Court invalidates a state ruling or practice, the established practice is to send the case back to the state courts, which figure out what to do next consistent with the ruling by the Supreme Court. So in this case the Florida courts would not be allowed to use the “clear intent of the voter” standard that the Supreme Court determined was too arbitrary and nonuniform, but they could adopt more specific, uniform standards and determine how and how quickly the new standards would be applied.
The conservative five-justice majority refused to allow this. They ruled that it was too late to do hand recounting, although their stay was the only reason the hand recounts weren’t already done. Further, they ruled that the safe harbor date, December 12, the date on which their ruling came down at about 9:00 P.M., is a final deadline that cannot be met if there is hand recounting. The safe harbor date is not a deadline for determining a state’s electors, as the Bush campaign and most of the media viewed it, but the date after which a state’s electors could be potentially subject to challenge in Congress. A state’s electors can be designated, in theory, at any time prior to the Electoral College vote, and in one election not too long ago it was done by one state in January without a problem. In a disingenuous touch, the five-justice majority relied on the Florida Supreme Court majority for support for the importance of the safe harbor date, although the Florida justices had not said that meeting that date is required or more important than counting all of the votes, and although the Supreme Court had dismissed and demeaned almost everything else the Florida Supreme Court said or ruled.
The deviations from prior conservative rulings and trends fall most prominently into four categories: voting rights, equal protection, judicial restraint, and states’ rights. This type of criticism, as pointed out above, should be made and analyzed with an eye toward the two-sidedness of such contradictions. My focus here will be on voting rights and equal protection.
The final Supreme Court decision that handed the election to George W. Bush on December 12 begins with this statement about voting rights: “The individual citizen has no federal constitutional right to vote.” How could the conservatives even assert such a principle? Because it’s correct and uncontroversial.
The Constitution, including the Bill of Rights, has no right to vote. Only members of the House were to be selected by popular election, and qualifications for voting were left to the states, which excluded minorities, women and white men who didn’t own substantial property. Even the vast majority of white men couldn’t vote. The founding fathers accomplished a lot, but nothing like our current ideas about democracy was on their agenda. They wished to promote commerce, and they worried most about strong central government and what the masses might do if they ever gained control of it. They were concerned that popular majorities might alter property rights or the rights of creditors over debtors.
It’s easy to imagine that the framers of the Constitution would understand our current controversy over bankruptcy rules, but would have a hard time understanding why we doubt the wisdom of the elite who generally controlled the state legislatures choosing the electors who would select the president. At the Constitutional Convention, in comments we usually don’t hear about in July 4th speeches, John Dickinson saw danger in “the multitudes without property and without principle.” John Jay, one of the authors of the Federalist Papers, thought “the people who own the country ought to govern it.” In the famous Federalist No. 10, Madison emphasized how the constitutional scheme protected against “the mischief of factions [stemming from the] unequal distribution of property.”
The composition of the Electoral College favored small and slaveholding states. Three-fifths of the slave population was added to the white population for purposes of allotting each state’s seats in the House, although the slaves, of course, could not vote. The small-state bias–still evident in the graphics on election night showing Bush winning many small states and the Electoral College though Gore won the popular vote–stems from the Electoral College formula that adds the number of senators, always two, to the number of representatives for each state. Almost all of the presidents for the first quarter century under this Constitution were southern slaveholders.
The predominant theme of the amendments to the Constitution after the Bill of Rights has been enfranchisement of each of the originally excluded groups–African Americans, women, people of ordinary means, and finally anyone who reaches the age of 18. Each of these changes faced bitter opposition from the conservatives of each era in which they were adopted, and they were accomplished by popular, political means, rather than, as is often assumed, beneficent judicial decisions.
In the 1960s, the liberal Warren Court established and enforced a fundamental right to vote based primarily on equal protection principles. The reasoning was that once election is specified by government at any level as the means to select officeholders (which government still does not have to do), all voters must be treated equally. The Warren Court required that the highest level of judicial review be applied to this right– “strict scrutiny,” which means that any infringement or restriction on the right must be justified by a “compelling” governmental interest and that government must use the “least restrictive means” to further such interests. Rights accorded strict scrutiny almost always win out.
For example, the Warren Court invalidated the typically unequal distribution of representatives in state legislatures, requiring, in the famous line, “one person, one vote.”3 State legislatures had to restructure and reapportion such that each representative is selected by and represents the same number of voters in order to accord each person’s vote equal weight. These principles and rules were applied broadly, and would encompass, for example, the claims raised by African Americans in Florida that different rules and barriers were used against them to reduce their votes.
Conservatives regularly condemned the Warren Court voting rights decisions as impermissible judicial activism, and when conservative justices became the majority on the Supreme Court in the mid-1970s, voting rights were retrenched. No more strict scrutiny, and claims of infringement or restriction of voting rights almost always lost. For example, a voter in Hawaii tired of that state’s dominance by one party (the Democrats, who often ran without any opposition), challenged the legislature’s prohibition of write-in voting, which required that his write-in vote not be accepted, counted or reported. The Rehnquist Court upheld the state ban on write-in votes, stating that the Court should not “tie the hands of the states.” In that case and another later one, the Rehnquist Court allowed the states to adopt rules that “favor” the two major parties, even as voting rates have steadily declined to about half those eligible and polls show widespread disappointment with both major parties across the political spectrum.
The conservative justices, whose domination of the Supreme Court began in the mid-1970s, have generally limited equal protection claims to situations in which a defined group in the population, usually a racial or ethnic group, has been treated differently than others, which, of course, was not the basis of Bush’s case. Further, the Court has erected new and virtually insurmountable barriers to such claims.
For example, in a voting-related case, Mobile v. Bolden4, African Americans challenged an at-large voting scheme for city commissioners in a city and state, Mobile, Alabama, that had previously legally disenfranchised blacks and resisted all aspects of integration. The three city commissioners, who also selected the mayor, were all elected city-wide, so that the white majority, if it voted racially, could always elect an all-white commission and mayor although the city was over a third black. As a result, no African American had been elected to the city commission. Nevertheless, the Court rejected the equal protection claim because the challengers hadn’t proved that racial exclusion was the specific purpose, rather than the obviously known and condoned result, of the at-large scheme. The Court has relaxed this insurmountable burden in cases where whites challenge affirmative action or remedial measures like redistricting pursuant to the Voting Rights Act. Based on these developments, it should be no surprise that the successful plaintiffs in equal protection cases over the last 25 years have almost all been white men. Bush v. Gore continues that tradition, but is inconsistent with recent conservative trends in equal protection cases.5
The Rehnquist Court has been so hostile to voting rights and equal protection that to find support for its ruling in favor of George W. Bush, they had to look to the Warren Court–all of the cases cited by the conservative majority in this regard were decided in the 1960s. This is a major embarrassment for the conservative justices, which they compounded by suggesting that the only beneficiary of their about-face on voting rights will be George W. Bush.
First, the Florida court’s lack of more specific or uniform standards, which provided the basis for the conservative majority’s decision, was in a very real sense created by the Supreme Court itself. On December 4, 2000, the Supreme Court, in another unusual ruling, had chastised the Florida court for making any interpretation of Florida law that goes beyond the exact wording of the state election statute. In the earlier ruling, the Florida court, trying to reconcile inconsistent statutory deadlines, placed considerable importance on the right to vote and to have every vote counted, for which it cited support in the Florida Constitution. The Supreme Court ruled this was improper because it relied on the Florida Constitution rather than Florida statutes, although statutes are commonly interpreted with reference to state Constitutions and other sources, and the same principle could be supported by reference to Florida statutes, generally recognized public policy, or the Warren Court decisions later relied upon by the Supreme Court in its final ruling handing the election to Bush. This earlier ruling prohibited or at least discouraged the Florida court from establishing any standards beyond exactly what the Florida statute said, which was only “clear intent of the voter.”
In any event, voting standards should be specific and uniform and each vote should receive equal weight, principles which progressives should praise no matter who adopts them or whom they benefit in particular cases. However, if these principles were applied consistently, they would invalidate the entire Florida electoral system. The various Florida counties use several different and decidedly unequal methods and standards. These principles would also invalidate the electoral systems in many states and much of the federal system–including, putting aside other constitutional provisions, the Electoral College and the Senate. They might require the proportional representation systems which almost all of the democratic world has adopted over our winner-take-all plurality system. In short, if consistently applied, these principles lead to an equalization and democratization of our electoral systems that have usually been opposed by conservatives and favored by progressives.
But in one of the most pernicious passages of modern constitutional law, the conservative majority in Bush v. Gore suggested that these noble principles, which they had to resurrect from the Warren Court era because their own rulings undercut voting rights, would be applied only in this case and would therefore be used only to hand this election to George W. Bush. The ruling, the conservative majority said, is “limited to the present circumstances” because of the “complexities” of the issues. They did not explain what complexities led to its application in this case or might limit its further application.
Their job, as justices, consists in significant part in telling us just which circumstances or complexities lead them to apply a principle, especially a newly established principle, in a particular case; and if it is not to have general application, to tell us why not. The Rehnquist Court here offered no such explanations, instead merely pronouncing that they had no inclination to apply the principle beyond this one particular case. Their decision based heavily on equal protection principles contradicts the very notion of equal protection of the law–which is, at rock bottom, that everyone should receive the benefits of established legal principles.
There is much that is deeply disturbing in the conservative majority’s rulings, complicated, to be sure, by their ultimate reliance on principles, though repudiated in their earlier rulings, that further democracy and equality. For those of us who have viewed law and the legal process as value-laden and ultimately political, there is something of an I-told-you-so here, but it’s hardly satisfying. Taken as a whole, there is in these events and decisions an abuse of the power given the Court and of the faith placed in the justices by the American people.
The immediate reaction, to the limited extent there has been any, has been to seek better electoral systems, methods and standards. This is, of course, all to the good. We should be interested in better voting machinery and election reforms adopted throughout the democratic world in the last two centuries. Our system is outmoded. Such reforms include proportional representation and instant runoff voting, which equalize the weight and maximize the effect of each citizen’s vote and open the electoral system to the range of viewpoints. Legalized bribery, money-dominated elections, and barriers to voting and ballot access should be eliminated. Countries that have adopted such reforms regularly achieve voter turnouts in the 80% or 90% range, rather than our dismal 50%.
Voting and equal protection rights should be fundamental and stringently enforced, and we should demand that the courts accord them to all citizens, despite the limiting language in the conservative majority’s opinion. Electoral systems that fail to meet the requirements of Bush v. Gore should be challenged by lawsuits, and the courts should invalidate them.
These events should also draw renewed attention to the current Supreme Court and, more generally, to the role of courts in our system. If nothing else, the return to the appearance of normalcy only a few weeks after the Supreme Court rather than the voters selected the president is a measure of the immense power of the judiciary in our system. But the twists and turns of the majority justices’ opinions, and the obvious malleability of legal reasoning, should raise doubts that go beyond this case or this election. The idealized conception of legal decision-making as value-free and neutral rather than value-laden, contentious and outcome-driven does not characterize our legal system and is, in my view, unattainable. The cyclic debates about judicial activism are a distraction from the real issue: democracy. Our version of the rule of law has yielded rule by lawyers. The antidote is a long overdue revitalization of American democracy–so that government is open, accessible and representative of the range of our people–which should not rely so heavily on courts and lawyers to resolve the issues of the day.
The feared constitutional crisis we so often heard about in that tense post-election period lay not in the political process spelled out in the Constitution for resolving conflicts and deadlocks in the presidential electoral process, but in the judicial intervention and displacement of that process. We had a constitutional crisis, and it was Bush v. Gore. History will not be kind.
Notes
1See JURIST book review by Kairys, Reason Worship, (May 1998).
2The opinions discussed here are: 531 U.S. 98 (2000) (Dec. 12, 2000 decision); 121 S.Ct. 512 (2000) (Dec. 9, 2000 stay); 531 U.S. 70 (2000) (Dec. 4, 2000 decision). All of the opinions are available to anyone online at
3Reynolds v. Simms, 377 U.S. 533 (1964).
4446 U.S. 55 (1980)
5In a series of writings looking at the range of equal protection cases, I have suggested that there are really two drastically different standards and approaches. See Unexplainable on Grounds Other Than Race, 45 Amer.U. L. Rev. 729 (1996); Race Trilogy, 67 Temple L. Rev. 1 (1994); With Liberty and Justice for Some (New Press 1993), chap. 5. See also Jamin Raskin, The Supreme Court's Racial Double Standard in
Redistricting: Unequal Protection in Politics and the Scholarship That
Defends It, University of
Virginia Journal of Law and Politics (Fall 1998).
May 19, 2001
©David Kairys
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The point he raised which I tend to focus on most intently is the lack of credibility in the efforts of the Republican party with respect to their conduct and positions taken subsequent to November 7th. I concur with what I believe to be Professor Kairy's opinion, that not only is/was the position of the GOP with respect to opposing hand-recounts indefensible, I further agree that few to none of them believed that what they were doing was the right thing, put another way, they knew they were doing wrong and that they were thwarting the wishes of the voters of the state of Florida.
If you want to point to a major difference between the two parties, that is a big one. You would ABSOLUTELY NEVER see the entire Democratic Party establishment rally behind a scheme that attempts to thwart the proper execution and counting of an election. I am not taking the position that there may be one or two bad eggs out there in the Democratic Party, I am sure that there are, but you would not see a united force from us like what the GOP produced to get behind what can only be described as a cause that was decidedly evil and against the best traditions of a democratic system.
What's more, reports surfaced after the inauguration galas that various folks in prominent positions in the GOP were gloating over how they "Stole the election" and were congratulating the Miami rent-a-mob on their efforts at stopping a hand recount there. Such reports prompt me to ask the GOP, "Ladies and Gentlemen, have you no sense of shame or patriotism left that would put honor and country above your own political interests?" I suspect I already know the answer. I hope the voting public keeps this all in mind when they go to the polls in November 2002 and 2004. I hope they also remember that we Democrats will need more than a simple majority to win to overcome whatever shenanigans the GOP may pull.
Steven Leser
We have a democracy where the peoples votes are supposed to count. Obviously that didn't work this time. But you just wait until next two and see what happens.
Somebody is going to be taken behind the wood shed.
As for the resignation of the public in the wake of this debacle, we knew that we could not prevail when the highest court in the land was so clearly biased against us(the American public).
Those same people that handed the election to Bush can also be replaced
Donald W. Roberts
The idea of constructing a mandate
system which follows the overall
popular vote is an impossible task,
and we occassionally see outcomes
in township elections that would have
been different with adjustments of
the constituencies. With the European
proportional mandate system it is,
however chrystal clear that using
either the states or the congressional
districts as constituencies, the
outcome would have been a victory
for George W Bush.
Bengt Nordling
I am aware of the movement to abolish the electoral college, but I have seen no movement to establish an amendment to the Constitution giving citizens the right to vote. Is there such a thing? I certainly would love to sign on...
Thank you for your analysis. I must say, however, it does not give me much hope.
Ruth Berggren
Not to mention, an unelected man has assumed the powers of the Executive Branch.
Although I am not a student of Law, it seems to me that the Bush v. Gore decision is the ultimate abuse of the Separation of Powers clause of the U.S. Constitution.
I think you should know, Professor Kairys, that there are many, many Americans who have not "moved on," who have not "got over it," and who are not silent about the matter.
So far, our protests receive little or no attention from the corporate-sponsored Media; but we are growing in numbers as the abusive agenda of the ultra-conservatives is being promulgated. You will not have heard much about it yet, but there are angry citizens waiting to greet George Bush in every city he visits. We hope that, eventually, legitimate journalists will grow bored with pandering and will begin to take note of the dissatisfaction and, yes, anger, of disenfranchised voters. For it is true that every vote but 5 was disregarded on December 9, 2000 when the counting stopped.
Sherry Padgett
Ray Phenicie
Janet Alfieri
The real question that needs to be asked of the victors is:
"Do you believe valid ballots were excluded in the Florida contest"?
David DeFreese
Only late in the game, when the selective recounts did not acheive their desired result did they begin serously suggesting a statewide recount. It was transparently obvious that they were not interested in a "fair" recount, but one that garnered them more votes. Nor has the professor given any consideration to the highly dubious recount process itself, where Democratic commissioners could declare very ambiguous ballot markings as a "vote" for Gore.
Also, while stressing the historical deference to state courts in such matters, he glosses over the fact that members of the (overwhelmingly Democratic) Florida Supreme Court themselves (including the Chief Justice) believed that their court had ruled unconstitutionally in overturning a lower court's ruling on the case.
In regard to his contention that Gore "clearly won", perhaps he has not read press reports about independently conducted recounts that showed Bush winning anyway, regardless of the standard used in counting the punch ballots.
In fact, the real reason that Bush could "get away with" the tactic of attacking the fairness of the recounts is this: It was clear to a large percentage of Americans that the recount process being conducted in Florida's heavily democratic counties was NOT fair, that the intent was to find enough votes to give Gore the election.
Bill Roberston
Catherine
Without in any way expressing wholehearted approval of the Republican point of view on the recount issue, the Democratic side is hardly more defensible. For example (to balance what was presented in the article), was it not disingenuine of the Gore camp to ask for recounts only in hand-picked counties (and the Florida Supreme Court to agree), rather than the entire state (though the Florida Supreme court switched on that later)? Is the Florida Supreme Court any less susceptible to accusations of being "outcome-driven" than the U.S. Supreme Court (each of their rulings overturned logically reasoned lower court rulings)? Is there no legitimacy to Republican complaints about the apparent differences various county-to-county standards for interpreting "voter intent"? Is the 4-3 vote in the final Florida Supreme Court ruling insignificant while the "razor-thin" 5-4 (or 7-2, depending how you look at it) vote in the U.S. Supreme Court is utterly condemning?
The bottom line for me is that this election was closer than the margin of error in our vote counting system. The rules in place for hand counting really did result in votes in one county being treated differently than in another county. Absent any evidence of intentional misconduct, if we accept that it is not appropriate to determine the vote-counting rules AFTER the election, the best we have are the consistent, if imperfect, machine counts. While evaluating and criticizing the various legal proceedings on all sides has value, the greater good can be served taking steps to ensure that we improve the margin of error on our vote counting (through voter education, accurate registration procedures, fair access) so that in the future the intent of the voter is not left to the courts to decide.
Bob Cotton
I read with great interest your comments on the Supreme Court
intervention during the recent Presidential election. I will note for
the record that I voted for Gore and that I, though not a legal scholar,
did feel that the Supreme Court intervention was inconsistent with
conservative view's both on judicial activism and on states rights.
One of the most pressing questions you pose (but don't address) is why,
after (take your pick) an affair that (a) was or (b) came close to being
a Constitutional crisis, and that was resolved in a way that simply
smelled bad, has there been so rapid a return to something like
normalcy? My best guess is that the reason is that most of us who
supported Gore did not do so with deep conviction. Rather, most of us
saw this as the better of two rather dismal choices. Indeed, even as a
Gore supporter, I found myself nervous with respect to the foreign
policy that he was likely to pursue and, especially, the international
economic dimensions of this policy. (And, I might note, I am an
international economics specialist; indeed, were you to look into my
background, I am co-author of a book on one aspect of this field,
notably foreign direct investment, with Paul Krugman, who has of course
become Bush's worst enemy on the issue of the tax cut.) In spite of
these reservations, I stood with Gore, largely because I liked even less
what I saw on the Republican side, e.g., the tax cut, the likely
anti-environmental tilt, the pro-big oil stance, and, above all else,
his rush while Texas governor to send persons convicted of capital
crimes to the executioner even when the grounds for these convictions
was at best shaky.
I don't mean here to personalize excessively. Let me just say that my
perception is that I was far from alone: while the particulars might
have differed from person to person, qualms about Gore were widespread
among his supporters.
My guess is that had the candidate been one about whom we had better
feelings or greater confidence that he/she was the right person for the
job, the normalcy that has marked the last five or so months would have
been, well, not so disturbingly normal.
Edward M. Graham
Joe Evans
Kairys completely neglects to analyze the twisted logic of the opposing four liberal justices (especially the blowhard J. P. Stevens) in going for states rights (heretofore an anathema to them) over their sacred equal protection cow. This was indeed a sad day for the Supreme Court; unfortunately the analysis here is very incomplete.
Equally short schrift is given to the turgidly incomprehensible and contradictory reasoning of the Florida Supreme Court; my God! these people are judges?
Finally, Kairys is unable to discern what the "complexities" of the issues might be if the matter were not settled directly. How about: What happens if the Florida legislature votes its own slate of electors? What happens if two sets of Florida electors - with opposing intent - show up? Does it make sense for this thing to go into the US Congress? I think these guys read the mood of the country (remember that ALL polls taken in the 36 days showed that Gore should give it up), saw that there was the potential for an even greater mess down the road, ande decided to take the political hit by ending it.
Nice try - wait 'til next year!
Winston Lee
Even if the Court can concoct some sophomoric reasons to justify its opinion in Bush v. Gore, it cannot conceal its felonious assault on the core values of our republic.
D.L. Stewart
Aaron Rowland
Brad McGrew
Thank you for publishing Kairys analysis of Bush v Gore. He raises issues that I haven't fully appreciated before, most notably the hypocracy of Bush's oppostion to hand recounts in Florida will asking for them in other States. But what disturbs me most about the ruling is it's attack on the very amendment it used as justification for it's decision. The Equal Protection Clause of the 14th Amendment is one of the most important foundations of our Civil Rights. William O. Douglas once wrote that this clause meant "the right of every voter to vote and have their vote counted". Using the 14th Amendment to stop the counting of votes should go down as one of the greatest crimes in our Nation's history. The hypocracy of Mr. Bush pales in comparison to that of his friends on the Extreme Court.
David Spring
Harb Denenber
Kathleen Johnson
I agree with Mr. Leser when he says that the legal posturing of Republicans during the post election process would not have been a course chosen by Democrats. The win without regard to the nation's future attitude has become the hallmark of a party that has become narrowly focused on the far political right. Recent events in the US Senate have clearly demonstrated the prevailing attitude of the Republican party. When Senator Jeffords left the Republican party Trent Lott threatened to filibuster Democratic attempts to organize the Senate.
I have to say that four individuals who offered comment on Professor Kairy's piece wrote significantly defective responses.
Mr. Robertson, selective recounts are the norm not the exception in disputed elections. Your own Republican party requested and received a recount of ONE heavily Republican county in New Mexico. The recount fell short and Vice President Gore's lead in New Mexico held up. Yes Mr. Robertson the Democrats did request that several heavily Democratic counties be recounted, however, on November 16 just before 8 PM EST Vice President Gore went on national television and requested of Bush that they agree to have the entire state manually recounted, abide by the result and cease all court action. About three hours later Bush came on television and refused. Bush's reasons centered around a mistrust of manual recounts. So far as the press accounts of the private recounts are concerned I suggest that Mr. Robertson read a little more carefully. The reports did not say that Bush won no matter the standard used. In fact, by most standards, Gore wins. The lead paragraphs in these stories ( I've probably read all o
When professor Kairy said that Gore won I berlieve he was refering to the massive number of overvotes that on thorough analysis overwhelming favored Gore. When the Voters News Service said on election night that Gore won they were correct. The results they saw in their bellweather precincts and their exit polls were accurate. People thought they had voted for Gore but as it turned out their votes weren't counted.
The remark about "mining" for votes is outrageous. The implication is that something was crooked. I watched hour after hour of the process. Mr. Robertson apparently didn't notice the continous monitoring by television cameras and the presence of representatives of both major parties at every counting station.
Insofar as diving votes is concerned it might be wothwhile to point out that the media investigation uncovered the fact that 10,000 absentee ballots arrived damaged to the extent that election workers had to recreate the spoiled ballots and had to "determine the intent of the voter". Partly because of a heavy Republican campaign (to the tune of $500,000) to get out absentee votes about two thirds of absentee ballots were Republican votes.
Mr. Evans this wasn't the Supreme Court's job. The court should not have heard the case.
I do disagree with one of Professor Kairy's statements. The idea that everything went back to normal. That never happened. This event energized many people, myself included. I am certainly not alone, there are many thousands of us.
Calvin Simpson
My second point has to do with the statement that the individual citizen has no federal constitutional right to vote. I understand that is a factual statement but equally true is the fact that the constitution explicitly tells the state that it must determine the manner by which it will appoint the electors. I believe I am correct in saying that in Florida that right was given directly to the people by way of the vote. Therefore by extension from the article directing the states to determine the manner in which electors shall be chosen the constitution does garantee the right to vote to the citizen.
We did indeed have a constitutional crisis on December 12, 2000 and as Walt Whitman said where are our brave citizens who will fight this tyranny?
Dorothy Mundy
Also, the comment was made that seven of the nine justices felt that the Florida ruling had Consitutional problems, and another comment was made that the Florida court admitted that their ruling was unconstitutional (I had not heard this, but I will take it at face value.) The professor does discuss this (I wonder of everyone actually read the whole article before rejecting it?). As he points out, the problem was that the Court by a 5-4 vote ruled that Florida could not correct their ruling. This is the 5-4 ruling which gave Bush the presidency. Liberals do not necessarily disagree with the equal protection ruling (although it is impossible for me to reconcile how equal protection can be applied to those whose votes have been counted by a machine and not to those whose votes were rejected by the machine.), but do disagree with the Supreme Court saying that the clock had run out. Taken as a whole, the events flow from the SC stopping a court-ordered recount, then ruling that the recount could be legal with t
And for the record, because no one else seems to have pointed it out, the Florida Supreme Court was consistent throughout in ruling that all legally cast votes should be counted. On the same day they ordered a statewide recount of undervotes, they rejected two other cases, specifically the attempt to throw out the absentee ballots in Seminole and Martin counties and the call for a revote in Palm Beach, either of which would have handed Gore the presidency. If their intention was simply to elect Gore, they could have contradicted themselves and done so. Unlike the US Supreme Court, however, they gave consistant rulings which gave greatest weight to the Florida laws protecting the votes already cast, even when it hurt their supposed candidate.
Joe Comstock
I read your fascinating article
with a lot of interest. I think
your attempt to analyze the case
Bush v. Gore from a scientific
point of view is a very important
and very useful one because - as I
observe it from abroad - the whole
discussion is always blocked by
the fact that the different
contributions are Gore or Bush-
biased or could be denounced as
such. What is at stake with the
decision of the election 2000 is
not who won but how. What is at
stake is not the content and the
strategy of the different campaigns
but the way the executive and the
judicial power of the state dealt
with those. It is not the possible justi-
fication of a decision taken (everybody
knows that each justification is
possible) but the difference between
legality and legitimacy. Because the
ground of legality is always legitimacy
and not the reverse. The abuse of power
you describe in your interesting
comments derives from the fact that
legitimate authorities used their
legal right to decide in an at least
very doubtful way. I say doubtful not
because of my personal political
opinion or whatever - I am a Swiss -
but because of the fact that the
decision of the US Supreme Court
stopped the electoral process due
to the obligation of the official
authorities in civilized democracies
to figure out the winner. And here
agein: The point is not who had won
if they had done as they should do
but simply the fact that they did
not. The consequence of such a
"decision" is always a weakening of legitimacy which produces consternation,
silence, endless discussions about
the possible outcomes - or - in the
worst case a profound partisanship
which could even end in a rupture
of society as a whole. I don't hope
(and I don't believe and I don't
think) that America is going straight
down that way but I think that those
who knows something about such processes
have to send their warnings on such
matters. In these sense I congratulate
you to your article.
Dr. Markus Weilenmann
A thought to ponder: Remember what happened the last time a King George imposed his wishes on an unwilling populace?
Terry Reader
David Kairys makes a very good point in this statement:
Voting and equal protection rights should be fundamental and stringently enforced, and we should demand that the courts accord them to all citizens, despite the limiting language in the conservative majority's opinion. Electoral systems that fail to meet the requirements of Bush v. Gore should be challenged by lawsuits, and the courts should invalidate them.
Because the court "did not explain what complexities led to its application in this case or might limit its further application," this issue most certainly will not go away. In fact you will see both parties using the decision to contest close elections.
So, Bush vs. Gore may seem a dead issue to the broader public reliant upon mass media for their news. But, for the online activists, the issue is not forgotten.
And, as I stated above, the court will have to revisit their hypocrisy when future cases are brought to the court.
I believe, if this results in all the votes being counted, the GOP will not win another national election until they purge their party of the partisan excess that values winning above the principles this nation is founded upon.
Jerome Benjamin Armstrong
It was truly sad to watch lawyers arguing over possession of the presidency of the United States as though it were a used car. Can a great nation, in which policy is decided this way, long endure?
The sad results of forcing policy to be debated in terms of a narrow theory can be seen in the former Soviet Union. There, people also had a theory -- Marxist theory -- which was also supposedly a neutral way to resolve all disputes correctly. Then, as today, people jumped through intellectual hoops to code their arguments into the correct jargon, and then explain how it neutrally and objectively required the result they wanted but could not give their real reasons why.
Pretending that the Constitution holds an answer to solve all our problems leads to similar sad results.
In Planned Parenthood v. Casey, lawyers for Planned Parenthood, perhaps hoping to convince a conservative judge or two, adopted a "history and tradition of choice" strategy. They argued, with perfectly straight faces, that privacy was a "whole cloth" which required that government "steer clear" of everything in family life it did not involve itself in "the 1820s and 1830s" This country's history and tradion of choice in family matters, they said, was sacred and inviolate. Touching even one aspect of the tradition destroyed the whole.
The argument has never been heard again, and with good reason. Nobody really thinks the cloth is so whole as to include a constitutional right for a man to beat his wife with a "whip no thicker than his thumb," still less a right to own a slave. Actually, this nation's history and tradition on family matters has had so many bad threads that it's amazing this argument's advocates could even keep their faces straight while arguing it.
Why did they make this argument in the first place? It certainly can't be that they actually believed it. Planned Parenthood did not suddenly decide to become archconservatives. It would appear that, as in Bush v. Gore, no-one ever intended the argument to apply to anything else. Moreover, nobody ever regarded it as reflecting the actual beliefs of its advocates.
It was just some legalese lawyers came up with to achieve a desired result. Lawyers' arguments can be thought of as a formal language that programs the courts to get them to perform certain behavior, just as computer programmers use a formal language, in which arguments have to have a certain form to be considered valid, to program computers. In programming, one just has to provide input that has a certain form to achieve a desired output. There is no need to think of it as having meaning, as being a subject of belief, or as having any of the characteristics associated with the way human beings discern, discuss, and resolve real issues and problems.
Professor Kairys ably addresses what happens when we behave this way as a society. When we expect a formal process to mysteriously solve our problems without our having to think, we lose the ability to form language in which we can even articulate, let alone address, what really troubles us and what we really need. We also fall into the cynicism and manipulativeness that a world based on doublethink inevitably produces.
By trying to turn the constitution into an oracle that purports to solve all problems, judges, liberal and conservative, do the people and the nation great injustice.
Jonathan Siegel
Had Bush ultimately won, nothing would change. Had Gore won, another delegation of Gore electors would be sent to the Electoral College, joining the Bush electors already sent. The matter would then have gone to Congress to decide which delegation to accredit. The GOP-majority House would say the Bush delegation; the Senate, with its newly 50-50 split, would vote for Gore's group (Gore, still the sitting VP, would break the tie). The Congress deadlocking, the decision would then be made by the Governor of Florida.
Bush could not allow it to go that far. Had a legal recount proven Gore the majority winner, but Florida's electoral votes still awarded to Bush-- by his brother-- Bush's presidency would be known to all as a fraud.
Anything was preferable, even if it meant the discrediting of the Supreme Court. And how did the Supreme Court oblige them? By creating 'deadline' status for December 12. If it is a deadline, then how is it that more than twenty states in this very election hadn't chosen their electors by the 12th?
The point is that having the Supreme Court execute such a travesty makes Bush's presidency no less a fraud on the republic than if Jeb gave him the electors despite a legal Gore win. But the Court provides a facade of legitimacy for people not paying close attention. Five Justices whored the Court's own legitimacy for partisan purposes.
Phillip Schuman
I read your article in the "Jurist" with much interest. You made a broad and sweeping statement when you said it is "a contradiction for liberals to favor states". Is it not true that many "liberals" have looked to the states to have marijuana legalized for medicinal purposes and yet the USSC has denied those states their right to make such decisions? If that is not a liberal law, and the USSC not a conservative veto, what is it?
Liberals respect the laws of the United States and understand the definition of "states rights". It now appears (at least, to me) that Conservatives have no respect for anyone, including themselves. If they did, why would they not want to preserve the environment for their children and their children's children? Do they somehow think that they will not require clean air, clean water and unpolluted land?
I have always considered myself a "moderate". I was raised with the credo "moderation in all things, even in moderation itself". What does that make me?
Currently, I am concerned that democracy is dead. Not the Democrats. Democracy. When individuals lack to the power to vote for the candidate of their choice, or have their voice nullified, there is no democracy.
During the period of time from November 7, 2000, until December 12, 2000, I waited. Sometimes patiently, sometimes angrily. Patient when the votes were being counted. Angry when I witnessed obvious hypocrisy. What hypocrisy? To have GWB run to the USSC after espousing that "states rights" were the most important thing in all decisions - yet RUN to the USSC for a Federal Court Decision! What is wrong with that picture? Why would he do that? That act, in and of itself, spoke volumes about him. He did not believe what he said, he said hollow words, casting an evil pall over the entire process.
What I have watched happen since that date has saddened me. I have personally watched the media fail to even speak of the hypocrisy. As though to say "you the people of the nation do not deserve the facts". Or is it, we the media are too stupid to report the facts. Regardless, they have fallen from being "news deliverers" to "dust", in my opinion. I no longer watch, thinking I will get "news". I watch to see what lies they will tell and then try to figure out for what reason they are lying.
Occasionally, the truth falls out in surprising ways. I remember reading a quote from GWB that said "you can fool some of the people some of the time. And those are the ones that you concentrate on." Well, now when I hear what he says, I automatically attempt to sort out "who" he is concentrating on and trying to fool.
What a sad state of affairs.
Bridget Gibson
I commend you on your clear, courageous and cogent article explaining
the intricacies about Bush v. Gore which most of us undertood from an
intuitive perspective; but perhaps from only a quasi legal perspecitive.
Yours was an article waiting to be written; words waiting to be heard; a
voice to give credance to what the voter believed, but felt disempowered
to express. For no media pundit seemed to support this position.
For the most part the press and the electronic media were silent, save
for some brave columnists who were not sufficiently responded to,
because the major networks did not pick up the banner, but instead chose
the easier, more expedient, safer and perhaps more profitable route to
follow.
So the rest of us waited, and with your article there is some feeling of
vindication;
about the outrage that was perpetrated when thousands, if not hundreds
of thousands, of citizens in a democratic country were disenfranchised,
and the president was selected by a single decision of one US Supreme
Court member who picked the resident of the White House; and by its
partisan and almost unprecidented act set a precident which contaminated
it in the eyes of many.
Ellen Mendel
Dale D. Cursio
Thank you for taking the time to unravel the twisted judicial tapestry woven by the Supreme Court in its attempt to obfuscate their agenda in Bush v. Gore.
Many of us ordinary citizens were able to sense that something was notably foul about their decision and the means by which they arrived at it, but, lacking the time and the legal experience to effectively review their mischief, we were left to wonder just what the source of the bad smell was.
Perhaps the most disturbing aspect of the election is not the outcome (for Gore would likely have been nearly as servile to corporate interests as Bush will be), but rather the public response to it. Many citizens who consider themselves to be "law abiding" and meticulously honest in their daily activities, who attend church regularly and openly espouse submission to the "higher authority" of our constitution, now delight in the Court's defilement of it and argue endlessly in justification simply because the outcome matches their desires. They pretend to see no conflict in their dichotomized position and resort to parroting the jargon of Baker and others in the Republican cartel rather than responding to reasoned criticism.
In your essay, you anguish over "The speed with which we returned to normal...". My hypothesis is that we never departed from it and the belief that we did is based more upon an idealistic hope than on an accurate appraisal of history. That's okay, the many who sacrificed before us to bring us as far as we have come, never assumed that the journey had been completed. Neither should we. Your efforts are appreciated, please continue them.
Kenneth Yorgan
It's telling that the conservative respondents critical of Professor Kairys' article do not offer any critiques based on law, but on the same tired old political talking points. Bugliosi pointed out in his book that 673 law professors of various political stripes have signed a petition condemning the supreme courts action as wrong and not based on law. He also points out that to date, no conservative law professor has been able to support the courts decision, based on law, nor have they been able to dispute these law professors opinion. Just like the conservative respondents on this page, the only responses have been the same old tired conservative "talking points" supporting the decison based on politics, supportive of a republican outcome, no matter what.
I am not a lawyer, but it was not hard to see what the court had done on December 12, 2000 in stopping the vote count. So desperate were they for Bush to prevail, they were willing to abuse their power in such a bald-faced way.
The Supreme Court really had no business getting involved at this level, but having done so, did worse damage to the institution of the law by making a political decision disguised as law.
One point that was missed: Justices Scalia and Thomas had no business getting involved also because they had personal connections to the outcome. Thomas' wife was working for the Heritage Foundation to vet candidates for the Bush administration, while two of Scalia's sons worked for the law firm of Ted Olson who "argued" (not meant as a slight to Olson, but the Court was so determined to find a way to deliver for Bush) the case before the supreme court.
That the court would stop the recount on 12/9, then render a decision basically saying that Gore had "run out of time" is absolutely preposterous. That the republican party and its supporters would support the efforts of Bush and company to thwart democracy for their own ends shows what kind of party it is. They could care less about the law, as long as they get their way.
In my mind, the institution that failed the nation most was the press. It for all intent and purposes colluded with the republican party to distort the facts surrounding the recount, and allowed the party to distort the purpose of recounts that republicans themselves used in this election.
One thing is clear: While the propaganda fed to the press about the recount by the republican party may have fooled their own rank-and-file, the elites knew that Gore won the election, otherwise the supreme court "justices" never would have went to such legnths, and the republicans would not have risked the obvious hypocrisy of their actions to steal the presidency for Bush.
Thanks to the press suppression of it, there are millions of voters who are aware of what happened and are determined to turn out for the next election. What concerns me is that if the republican party and its supporters are so calculating as to support the thwarting of law and their own stated principles by which they stand for, then, unless the majority of the people turn out in force in the next election and express their feelings, feelings that have been suppressed and ignored by the press, its no telling what they will resort to next, with the support of a willing press, to continue to force its fanaticsm on the rest of us.
America is in deep trouble.
C. Maxwell
Also, is he aware that the Republicans asked for a recount of the votes in only a few counties in New Mexico? And no Democrat screamed and hollered that such a recount was unfair? And is he aware that the Bush team in Florida asked for and got machine recounts in several counties?
How anyone can think there was any validity whatsoever in what the Republicans did in Florida is just beyond me.
And I agree with Vincent Bugliosi that the five Injustices are criminals.
Carolyn Kay
I do however see this as an opportunity for those pushing for
better voting equipment. If I could I would be suing every state
that has more than one type of voting equipment and use Bush v. Gore
as the legal basis. It seems to me that the supreme court has
said that equal voting protection is the most important standard to
adhere to in elections and with that in mind we need to get rid of
all the punch cards or all the optical systems in each state.
Karl Putz
I am not an attorney, but just an individual that found the election to
be the most disgraceful act every perpetrated on the citizens of this
country. It saddened me most of all because with all our human
frailties as individuals, I still had faith that our system of
government with it's checks and balances would safeguard us from this
type of misuse of power. For the first time in my life, I felt ashamed
of our country as a whole, shamed by our system, and ashamed of the
people who supported and accepted this travesty of justice.
I'm not in a position of power nor as learned as many, but please tell
me that those who are in a position to do so are doing what's necessary
to prevent this contemptible act of injustice from happening again.
Also, I do know that political careers rely on many uncontrollable
circumstances but I cannot understand why this travesty has not been met
with more outcry from the opposition. Can you please tell me why? Can
you also inform me of which politicians Were the most vocal and active
in overturning this fraudulent election and if any of our legislators
are Still trying to correct it?
Richard Pence
Dolores Bertand
K.D. Medlock
Thank you for your excellent work, it is too bad that the Supreme Court Justices did not look more clearly at their own thought processes (I will not call it logic).
John Bachellor
They can come up with the most stupidest excuses about the Civil Rights Report but what can not and must not be forgotten what they did to us. They may deny it but I am will give my life right now that they deliberately knew what they were doing by purging legal Democrats voters. They knew that registered Democrats surpass Republicans in Florida. They knew they had to do something about it and chose to purge legal voters. Furthermore, when County Supervisors of elections implored Harris to send more money to the local cambassy boards for voting education because they were anticipating a tremendous high turn out of voters she refused to send them money and chose to ignore what was coming stating that the state had no funds available.
Did she do this on purpose? You may be asking…… Of course she did!, She knew all along that Democrats were going to vote by the masses. She lied that she had no fund to supply the local cambassy boards, because if she did not have any money/funds where did she get the funds to pay Choice Point to purge legal voters? She paid $4 million dollars for God's sake!!!!
I am not getting over it, and I will not get over it. Shhe should be impeached along with the Five Supreme court Injustices, Jeb Bush and entire GOP!.
I am mad as hell!!
Sharon Franco
Then came the election. Oh, the election.
All they had to do was count the votes, and justice would be served. Who really cared who got in office as long as the time-honored tradition of counting the votes was endorsed, for without the rules of the game, there really is no game. Now we are an anything goes country. Now we are a country that has no rules because the rules can be twisted into anything one wants. It just depends on what those who have the power want to project. We have nothing to rely on anymore, no northern star.
Now it truly is every man for himself.
Used to be only the minority population distrusted the government in all its forms. Now I too have had my eyes opened to its corruption and twistedness. I have spent the last 20 years of my life serving in a legal capacity in one way or another. I truly believed in it. Now I see what a joke it really is. I have been blind.
I have even been a religious believer, and that belief has been undergoing strong assaults as well. I do not trust those leaders any more than I trust the government leaders now. Why? The religious right has been behind this current administration 100 percent. Without them, this current administration would not be where it is today. But did ONE of them speak out against the injustice of this last election? Or does the end really justify the means? Oh, yes, it matters how you conduct your business, and in religion, the means is more important than the end.
Both of my strongest lifelong beliefs have imploded. I am angry, and I trust no one. I am alone.
Dorothy Boggs
To this layman, the ruling was an abrogation of Article 2 of the Constitution. Put another way, the state legislature was not allowed to direct the manner in which Presidential electors are chosen, if it meant that Bush could lose in Election 2000.
Ainsley
I'm also a Floridian. And a lifelong Republican. I've voted for every Rep. president since Nixon. I believe:
1) We'll never know for sure who won Florida, but if every eligible voter who tried to vote had been permitted to vote, and if every vote cast had been counted, I believe the evidence points to a Gore win.
2) I think the Supreme Court's decision was not necessarily a grab for the presidency but was instead a power-grab by the court's conservatives for control of their own judicial branch. Note that one of Bush's first policy decisions was to axe the ABA's role in pre-screening judges and to replace them with the Federalist Society.
I'm so disgusted with the GOP that my only decision now is to pull a Jeffords and become a Democratic-voting independent, or go whole-hog and become a registered Democrat.
Bill McArthur
Matthew Morrow
The Supreme Court of the United States was not the court that made the outrageous decision. That distinction falls to the Florida Supreme Court.
The Constitution gives state legislatures the plenary power to determine the manner in which they choose their own electors. In Florida, this power is delegated by law to the county canvassing boards (to count the votes cast in their counties). So far, so good. Any counting of votes (including recounts) falls under their discretion.
Florida law provides for a protest phase of an election (during which any canvassing board-conducted recounts would take place) and a contest phase, after the vote totals have been certified when the proceedings move to the courts.
As stated above, the state delegates its plenary powers to determine the manner of choosing its own electors to the canvassing boards (NOT the state judiciary). Therefore the only way in which the results each county certified should have been overturned by the courts, would be if it could have been shown in court that the canvassing boards had acted so irresponsibly or outlandishly in the process of counting their counties' votes.
Such a legal standard is termed "abuse of discretion". In the first contest hearing, Judge Sauls rightly found that there had been no such abuse of discretion. However, on appeal the Florida high court ruled that the standard was not "abuse of discretion" but "de novo" ("as new")-- in other words, that in the contest phase it didn't matter what the canvassing boards deternined during the recounts in the protest phase-- that now the counting started over under the supervision of judges.
But as I showed up above, this ruling is unconstitutional. It takes away the state legislatures' constitutional plenary authority to choose the manner in which it picks its electors, which it in turn delegates to the canvassing boards (again NOT to the courts). Giving the judiciary "de novo" review of ballots, renders moot the findings of the canvassing boards. As one of Bush's lawyers put it: "in that case, why even bother having the canvassing boards look at the ballots at all? Just ship them staight to the court house...."
The United States Supreme Court did not want to strike down outright the Florida Supremes' decision, so they came up with the equal protection argument, which wasn't nearly as strong. They didn't have to reach equal protection; they should have just struck down the Florida court.
To sum up the essence of what I'm saying without the legal argument--look at it this way. The purpose of any vote recount should be to get a more accurate total than the original vote count. But, there was no way another recount would have provided a result was anymore reliable than the first, because of the fact that different people were counting the ballots and according to different standards. What the Florida Supreme Court ordered was a "feel-good" recount--in other words, people felt like somehow some votes hadn't been counted "the right way", so let's recount them, so that they'll feel better about it. But, as I said, recounts are fundamentally about getting a more accurate count, not making people feel good. Since there was no way to have any more confidence in the accuracy of new recounts, the state should stick with the original count from the canvassing boards (the only one certified in accordance with the laws of the state of Florida and the US Constitution).
Jeffrey Gebeau
Barbara Dupre
If you include the 2000 elections, that makes FOUR times
in my lifetime that the Republicans have monkeyed with
a presidential election in a serious way. Nothing comparable
exists on the Democratic side, to my knowledge.
Anyone who says the two parties are the same is ignoring this.
Jack Neefus
Would there really have been social chaos? One letter-writer says that the "complexities" of the case include Florida submitting two slates of electors to Congress, and Congress having no precedents. But so what? Congress has had far more complex issues to hash out.
Moreover, was the country so divided as to Bush or Gore? I don't think so. I think the close vote was an indication of general
indifference. The media was kicking up a storm, of course, but their job is to sell advertising. I don't think the person-in-the-street cared that much about the outcome. A battle in Congress would have provided an interesting popular show (it would be carried on TV, of course), and would have provided a fairly good history lesson to viewers.
Two aspects of the election business struck me with particular force, and I haven't seen them talked about very much. First, what the Democrats needed was a good generalist in charge of legal strategy. Instead they had a bunch of courtroom lawyers who couldn't see the forest for the trees. High priced and great memorizers they may have been, but no one worked out the post-election campaign on a map with probabilities assigned to various strategies. The result was that the Democrats' worst enemy in Florida was the Democrats. In contrast, the Republicans seemed to have worked out their strategy. It wasn't particularly good, but they lucked out because the Democrats--who could have had a winning strategy--had no strategy at all.
Second, I was surprised at how juvenile and illiterate judges can be when they write their own opinions instead of having their clerks write them. The Florida Supreme Court judges, every one of them, showed that they couldn't write a coherent opinion if their lives depended on it. They wound up shooting themselves in the foot because all their various opinions and dissents etc. were so poorly written that they contained logical howlers. The US Supreme Court didn't come off very much better. Scalia's opinion, for example, reads like the briefs he used to write, and not at all like a judicial opinion. And his was close to the best of the bad lot.
It almost leads me to think that clerks should be abolished. If the public saw how the judges really think, maybe we'd get some better people appointed to the bench.--
Tony D'Amato
The first question I have is whether the Supreme Court of Florida (SCOF) decision was as off-target as you say, even given the Florida statutes in question. As I understand it, SCOF took great pains to support their decision by reference to Florida statutes and the state constitution. (I can also imagine making the case that the "due discretion" requirement can't have been met if legally cast votes were going to be thrown out wholesale, especially since the Florida constitution makes a point of the right to vote, but you may have left out some of the parameters of "due discretion" in your condensed version.) The larger question, though, seems to be if SCOF erred by reviewing Sauls' decision at all. You cite the plenary power granted to the legislature by the U.S. Constitution. But didn't the legislature exercise that power by writing the statutes governing the election? And if there were ambiguities or areas of omission in that statute, then surely the Florida constitution, which allows for the resolution o
My second question involves your assertion that the Supreme Court of the United States (SCOTUS) saw the problem with the SCOF decision that you cite, but decided to reverse the decision on the grounds of equal protection because they didn't want to strike down the decision "outright." That may be. The SCOTUS might have felt that an open reversal would have been too much of a strike against state sovereignty for them to swallow. (Though the de facto reversal doesn't seem to have gotten them off the hook at all.) But if the "plenary power" argument was as strong as you say, then why didn't it feature more prominently in the decision? The per curiam opinion turned on equal protection (it may have hung entirely on equal protection: I haven't read the whole thing). On what grounds do you assert that SCOTUS saw the "plenary power" argument and then ignored it or downplayed it to advance an argument which you confess is weaker? Your theory seems to be based on what you perceive as the strength of your own argument
Frankly, though, the strongest refutation of your theory about SCOTUS's reasoning comes from the court's own actions. Clearly the court thought that however much the Constitution fails to mention the judiciary when it describes the process of selecting electors, the Supreme Court had a right to participate. In fact you might say that the real 7-2 decision was that SCOTUS (and, presumably, other levels of the judiciary) had a right to involve itself in a process which the legislative branch alone has been granted explicit power to control. One might say that SCOTUS only intervened to prevent the execution of a remedy which SCOF had no right to impose--except, of course, that SCOTUS didn't say that: using the most questionable logic, they said that there was no time to impose a remedy, not that SCOF had no right to impose one.
In the end, I think all this wrangling underscores Dr. Kairy's larger point, that if we want to avoid judicial interference in the machinery of democracy we need to strengthen the democratic process. It would have been nice, for example, if we had all felt comfortable with leaving the decision to the canvassing boards alone, but egregious acts of partisanship on both sides made that an impossibility. It's a shame that we haven't seen much movement, though I think it is fair to say that Florida has taken some steps to modernize its voting procedures, probably because of the embarassment the state governement was caused by the breakdown of the procedures they had in place. Let's hope it doesn't take 50 Floridas before we reform democracy in all the other states.
George Gibson
David Kairys, a contributing editor of JURIST, is professor of law at the Beasley School of Law, Temple University. He is a leading constitutional scholar and litigated some of the major civil rights cases in recent times, including some voting rights cases. He edited the 1998 edition of The Politics of Law (Basic Books), from which portions of this piece were drawn. He welcomes comments on this essay at JURIST@law.pitt.edu.
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