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Supreme InjusticeHow the High Court Hijacked Election 2000$

Alan M. Dershowitz

Print publication date: 2003

Print ISBN-13: 9780195158076

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0195158075.001.0001

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Five Justices Decide the Election

Five Justices Decide the Election

Chapter:
(p.13) 1: Five Justices Decide the Election
Source:
Supreme Injustice
Author(s):

Alan M. Dershowitz (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/0195158075.003.0002

Abstract and Keywords

Outlines the constitutional and statutory framework within which presidential elections are conducted in the USA. Provides a brief chronology and an account of the US (Bush vs Gore) presidential election of 2000. The different sections of the chapter are: How We Elect Our President (the constitutional and statutory framework); The 2000 Election and Its Aftermath; The Ground War in Florida; The Butterfly Ballot; ‘Count All the Votes’ — or at Least the Ones That Favour Gore; Bush Goes to Court; The Overseas Absentee Ballots; The Supreme Court's Initial — Unanimous — Decision; and The Supreme Court's Stay (the decision to stop recounting in Florida before even hearing an argument) — looks at other cases in which equal protection has or has not been applied by the US Supreme Court.

Keywords:   Absentee Ballots, Ballots, George W. Bush, Bush vs Gore, Butterfly Ballot, chronology, constitutional framework, election recount, equal protection, Florida, Florida recount, Al Gore, Overseas Absentee Ballots, statutory framework, US Constitution, US presidential election 2000, US Supreme Court, USA

It is a sad day for America and the Constitution when a court decides the outcome of an election.

James Baker, Bush's chief lawyer, after the Florida Supreme Court ruled in favor of a hand recount

(p.14) (p.15)

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 get here?” 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 every citizen 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 some countries (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 (p.16) 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.5 There 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.

(p.17) 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.7 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.8

Challenges to this elitism soon began to emerge. Jacksonian democracy placed more trust in the people than in the elites.9 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; and whereas 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.10

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 (p.18) 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.”12

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 every state 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,13 who are committed—either by law or by tradition—to vote for the candidate who wins the state popular vote.14 If there is a dispute over who 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.”15 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 (p.19) 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 if there 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.16

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 point where, 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 every American had learned new terms such as “butterfly ballot,”* “chad,” and (p.20) “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 over the top, and Bush was going to resist any such 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.

(p.21) The Ground War in Florida

I was in Palm Beach and Miami for only a few days shortly after Election Day, and others who were there 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:18

  1. 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. 2. It vacated that decision and sent the case back to the Florida Supreme Court for clarification regarding the grounds of its decision.

  3. 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.19

  4. 4. It agreed to review that decision on its merits.

  5. 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 some background information regarding the ground war and the numerous over‐lapping (p.22) 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 that Theresa 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.21

(p.23) The so‐called butterfly ballot actually looked like this:
                   Five Justices Decide the Election
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—that a widely reprinted editorial cartoon caricatured it as follows:
                   Five Justices Decide the Election
(p.24) The tragedy is that any moderately intelligent elementary‐school student could have avoided these problems without any additional 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, like this:
                   Five Justices Decide the Election
Had these circles or some other 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.’ ”22 This does not even include around three thousand individuals who may have intended to vote for Gore (p.25) 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.23

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.”24

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.25

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 any other 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.27 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 confusion.

(p.26) The other hurdle—this one even more difficult to overcome—was that there 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,28 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.”29 Indeed, when some Palm Beach voters sought this remedy, a circuit court judge rebuffed them, saying that he lacked the authority to order a revote.30 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 every day” 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 as the county‐by‐county hand count provided for by Florida law.31 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 (p.27) 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,”32 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.”33

Another Gore lawyer noted that “it has been eight years since Miami‐Dade County cleaned the chads from its machines.”34 A poll worker said that she had “tried to shake out the chads every few hours” but some machines “became clogged beyond repair.”35

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 every ballot 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 (p.28) their ballots to be sure that no chads remained hanging, but thousands failed to do so.36 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, any more 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, some machines were clogged or misaligned so as to make it impossible or quite difficult to punch the chad through for any candidates. Some ballots 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 which there was only a slight indentation on one chad for a candidate for only one office, while the chads for candidates for every other 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 latter probably should not. Yet the Votomatic failed to distinguish between 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.

(p.29) “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 any county 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.”37 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.38 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.39 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.40 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 by having votes handcounted. 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 (p.30) 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.41

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 “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”42 The Fourteenth Amendment was passed explicitly to secure the rights of recently emancipated slaves43 and to prevent official discrimination against blacks.44 Despite its primary focus on the protection of blacks,45 the Fourteenth Amendment was drafted in broad and inclusive language; there is no mention of race or any other defining characteristic in the amendment.46 Because the legislators who supported the Fourteenth Amendment favored an announcement of the general principle of equality over a narrowly tailored, race‐specific provision,47 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 sex48 or mental capacity49 and in cases involving discriminatory interference with the right to reproduce,50 the right to vote,51 the right to travel,52 and the right to equal access to the judicial process.53

(p.31) Conservative justices have generally taken a narrow view of the equal‐protection clause. In recent years, they have used it primarily to strike down affirmative‐action programs that have provided benefits to blacks and other minorities.54 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.55 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.56 Scalia believed that an alleged victim of discrimination must show “tangible injury and concrete harm,” rather than merely a “perception of unfairness.”57 If Scalia were to ask Republican lawyers to identify who the victims were in this case, they would be hard pressed to come up with a persuasive answer. Some in 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 any recount, 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, and there would be plenty of time for ideological consistency after they won.

(p.32) 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 intent58 was subject to varying interpretations and thus violated the equal‐protection clause of the U.S. Constitution.59 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.”60

I certainly thought it was underwhelming as I listened to Ted Olson deliver it to a packed courtroom that morning. I was there 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 [people's] right to know . . . what the facts are,” the count should proceed. My Harvard colleague Laurence Tribe, who was there 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.61

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.”62 The Republicans took the position that the statutory phrase “error in the vote tabulation” (p.33) 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 some voting 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 that there 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 if there is a clear indication of the intent of the voter”—appears in a section of the voting law that deals specifically with damaged ballots.63 But the Florida courts, including the Florida Supreme Court, have long ruled that the clear‐intent standard governs in all situations, including those in which there is no damage to the ballot and no machine error. In 1917, the Florida Supreme Court ruled that “[w]here a ballot is so marked as to plainly indicate the voter's choice and intent in placing his mark thereon, it should be counted as marked unless some positive provision of the law would thereby be violated.”64 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.”65 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.66

(p.34) 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 clear away 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. Any human 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.67 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 every machine 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, and there were allegations that the rates of error were highest in those areas where more blacks and other minorities lived.68

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 (p.35) 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 enough to 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.69 The secretary of state, Katherine Harris, then announced that she would not accept any hand 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.70 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 (p.36) 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.”71

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 any certification 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 building where the (p.37) 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—who thereupon “caved,” as Gigot put it, reversing their previous determination to recount with the sudden decision to stop counting any more 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.”72 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 [Gore's] campaign for the White House.”73

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 any help from the justices, because with the protest period having ended with the certification, Gore had only sixteen days (p.38) 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 over this deadline, and Gore's lawyer, David Boies, acknowledged during oral argument that it was a deadline that had to be taken seriously.74 It would be awfully difficult for Gore to catch up to Bush before December 12—unless a court disqualified enough Bush overseas absentee votes. And there 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.75

The Overseas Absentee Ballots

The Gore mantra of “count every vote” 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 was having 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 (p.39) 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 over for 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 Constitution].” In other words, the justices suggested that the (p.40) 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 manual recount in any county challenged by a candidate if there 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.76 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.77 Accordingly, almost (p.41) no knowledgeable student of the U.S. Supreme Court expected the justices to intrude into this matter of state law.78

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 were there to take the [Florida] 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 over before the case could come back to haunt the Supreme Court again.”79

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 some quarters 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 which there 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 (p.42) 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 some of 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 Legislature thereof 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 any gay 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 (p.43) 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.81

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 takes away 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 (p.44) 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 some tampering 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 Florida Supreme 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.82 That ruling came in an appeal (p.45) 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 the vote shall be counted as a “legal” vote if there is “clear indication of the intent of the voter.”83

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 any possible 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 shortly thereafter. 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 (p.46) 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 any such 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.85 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 might therefore be persuaded that the defendant should not be executed.86 Unlike in Bush v. Gore, Justice (p.47) 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 with‐hold 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. . . . [B]ut 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.87

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.”88

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 (p.48) 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.89 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.90 It might have turned out that one candidate or another had a sufficient margin of victory without counting any ballots with dimpled or perforated chads. Or it might have turned out that the situation was more complex, with some new information favoring the Bush position and some favoring 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 constitutional arguments.91

Realizing that there would be an outcry against stopping the count before any argument, Justice Scalia decided to write an unusual opinion explaining why he voted for the stay92 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 [Bush] and to the country, by casting a cloud upon what he claims (p.49) 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 these decisions.93

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.”94 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.”

(p.50) 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 any foundation in law.”96

Justice Stevens, who was appointed by President Gerald Ford, a Republican, and who dissented from the stay, got it exactly right:

Counting every legally cast vote cannot constitute irreparable harm. On the other hand, there is a danger that a stay may cause irreparable harm to [Gore]—and, more importantly, (p.51) 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 [Bush].” . . . Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.97

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 any briefs were received or any arguments heard. Scalia virtually acknowledged that the case had already been decided when he wrote in his stay opinion that Bush was likely to prevail.98

All the debate over whether 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 (p.52) 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.

Notes:

(*) The form of ballot used in Palm Beach County, consisting of two leaves in book form, with chads to be punched out from the center, using the Votomatic system.

() A chad is a small, perforated piece that is intended to detach from the ballot when it is punched with a stylus by a voter.

(*) An undervote is a ballot on which the voter did not choose a candidate for president (according to machine reading).

(*) Also known as overvotes, on which voters chose more than one candidate for president.

(*) Per curiam means “by the court,” and a per curiam opinion is generally a short, unanimous opinion that is not attributed to any single justice as the author.

(*) The decision to grant certiorari (full review of a case) and the decision to grant a stay are separate. It takes only four votes for the former, but five for the latter. Traditionally, when four justices voted to hear a capital case, one of the other justices would, in deference to his colleagues, add his vote to the four in order to grant the stay. But in recent years, this tradition has ended and the five justices who oppose review also oppose the stay.

(1.) Bagaz is the acronym used to refer to the power of the Israeli supreme court to sit as a “high court of justice” (bet din‐gavo'ah le‐zedek). When the court is exercising its bagaz power, it has original jurisdiction over all claims of excessive or improper administrative or governmental power brought by any citizen. See Menachem Elon, Jewish Law: History, Sources, Principles (Jewish Publication Society, 1994), vol. 1, glossary.

(2.) Article III, sec. 1, U.S. Constitution (“The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”).

(3.) See especially Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), which reads the Constitution as imposing a duty on federal courts to overturn laws that are in conflict with the Constitution.

(4.) Cases in which the Supreme Court has original jurisdiction, that is, in which the Supreme Court is the first and only court in which the case can be heard, are of three kinds: cases in which a state is a party; cases affecting ambassadors, other public ministers, and consuls of foreign nations; and cases involving certain extraordinary writs. Richard H. Fallon Jr. et al., The Federal Courts and the Federal System (Hart and Wechsler's Foundation Press, 1996), 294–348.

(5.) The federal court cases brought during the election controversy included: Bush v. Gore; Bush v. Palm Beach County Canvassing Board; Siegel v. LePore; Touchston v. McDermott; Harris v. State of Florida Election Canvassing Commission; Bush v. Hillsborough County Canvassing Board; Jones v. Bush. The state court cases were: Gore v. Harris; Jacobs v. Seminole County Canvassing Board; Taylor v. Martin County Canvassing Board; Brown v. Stafford; Gore v. Miami‐Dade County Canvassing Board; Bush v. Bay County Canvassing Board; Palm Beach County Canvassing Board v. Harris; McDermott v. Harris; Harris v. Circuit Judges; Florida Democratic Party v. Carroll; Florida Democratic Party v. Palm Beach County Canvassing Board; Fladell v. Palm Beach County Canvassing Board; Horowitz v. LePore; Elkins v. LePore; Rogers v. Election Canvassing Commission; Gibbs v. Palm Beach County Canvassing Board; Crum v. Palm Beach County Canvassing Board; HABIL v. Palm Beach County Canvassing Board; Gottfried v. LePore; Lichtman v. Jeb Bush.

(6.) Deadlock: The Inside Story of America's Closest Election, by the Political Staff of the Washington Post (Public Affairs, 2001), 21.

(7.) “The individual citizen has no federal constitutional right to vote for electors (p.210) for the President of the United States unless and until the state legislature chooses a statewide election.” Bush v. Gore at 529.

(8.) Since the founding of our country, restrictions on the right to vote have been based on race, sex, property ownership, taxation, literacy, age, and criminal record, among other considerations.

(9.) Although many of the reforms that frequently are credited to Jackson's Democratic Party had been initiated before Jackson became president—and were, in some cases, enacted over the objections of the Jacksonians—he and his followers were quick to assume the mantle of champion of democracy and scourge of the aristocrat. There is no doubt, however, that democracy flourished under the Jacksonian Democrats.

(10.) William Josephson and Beverly J. Ross, “Repairing the Electoral College,” 22 J. Legis. 145, 161 (1996).

(11.) The Seventeenth Amendment, ratified in 1913, ended the practice of state legislatures selecting senators and instituted a system whereby senators would be chosen in the same way as representatives—by popular election.

(11.) Every machine recount produced different results. See, for example, Dan Balz, “Bush's Florida Lead Shrinks to 300,” Washington Post, Nov. 15, 2000, which shows that the machine recounts in Broward, Palm Beach, Volusia, and Miami‐Dade counties each produced vote counts for both candidates that were different from the first counts.

(12.) Brown v. Allen, 344 U.S. 443, 540 (1953), Jackson concurring. The corollary to this power is that the Supreme Court is “infallible” only in matters over which it properly exercised its authority, and there has been considerable debate since Marbury over the proper role of the Supreme Court in a federalist democracy. Among those who have argued most strenuously for a limited role by the high court have been several of the very justices who voted to intervene in the Florida election case, as will be discussed in Chapter 4.

(13.) These two states are Maine and Nebraska. See Alexander Hanebeck, “Democracy Within Federalism,” 37 San Diego L. Rev. 347, 389, n. 263 (2000).

(14.) See generally Beverly J. Ross and William Josephson, “The Electoral College and the Popular Vote,” 12 J. L. and Politics 665 (1996).

(15.) 3 U.S.C. sec. 5.

(16.) The House has never enacted specific rules for such a proceeding. See New York Times, June 11, 1992, A2. Among the issues that remain unresolved by the lack of clear rules are the following: (1) Is the vote secret or open? In 1801 and 1825, the proceedings were secret. It is unlikely they would be secret today. (2) Does the House consist of the old members, including lame ducks, or the new members, including those just elected in November? In 1801 and 1825, it consisted of the old members. (3) Does each state delegation determine its state's vote by majority or plurality? In the unlikely event that the House fails to elect a president by January 20, the Speaker of the House of Representatives becomes acting president. If the Speaker is unable to qualify as acting president, then the president pro tempore of the Senate assumes the position (3 U.S.C. sec. 19). In this election, the Speaker was Dennis Hastert (R‐I11.) and the president pro tempore was Strom Thurmond (R.‐S.C.).

(p.211)

(17.) Under Florida law, an automatic machine recount, which is relatively quick and simple, is triggered whenever the candidates are separated by 0.5 percent or less of the vote. Following such a machine recount, the candidate may protest and/or challenge the results:

The Florida Election Code sets forth a two‐pronged system for challenging vote returns and election procedures. The “protest” and “contest” provisions are distinct proceedings. A protest proceeding is filed with the County Canvassing Board and addresses the validity of the vote returns. The relief that may be granted includes a manual recount. The Canvassing Board is a neutral ministerial body. A contest proceeding, on the other hand, is filed in circuit court and addresses the validity of the election itself. Relief that may be granted is varied and can be extensive. No appellate relationship exists between a “protest” and a “contest”; a protest is not a prerequisite for a contest. Moreover, the trial court in the contest action does not sit as an appellate court over the decisions of the Canvassing Board. Accordingly while the Board's actions concerning the elections process may constitute evidence in a contest proceeding, the Board's decisions are not to be accorded the highly deferential “abuse of discretion” standard of review during a contest proceeding. (Gore v. Harris, 772 So. 2d 1243 (2000) at 1252, internal citations omitted)

After the ballots have been counted in a precinct, that precinct's election board must draw up a certificate of the results, which is sent to the county supervisor of elections (Fla. Stat. 102.071). The County Canvassing Board (which is composed of the supervisor of elections, a county court judge, and the chair of the board of county commissioners [Fla. Stat. 102.141 (1)]), having received the completed certificates from all the precincts, canvasses and certifies the results for that county and forwards them to the Department of State (Fla. Stat. 102.151). If, however, the returns for a county show that a candidate for office was defeated by 0.5 percent or less of the total votes cast for such office, the board must order a recount of the votes cast in that race. This automatic recount is conducted by machine, or whatever counting method was used in the initial count (Fla. Stat. 102.141 (4)).

As soon as the official results are compiled from all counties, the Elections Canvassing Commission (which is made up of the governor, the secretary of state, and the director of the Division of Elections) certifies them and declares the winners of all state and federal races. “If the county returns are not received by the Department of State by 5 P.M. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified” (Fla. Stat. 102.111, emphasis added).

This provision appears to be in conflict with the statute immediately following it, Fla. Stat. 102.112, which says: “Returns must be filed by 5 P.M. on the 7th day following the . . . general election. . . . If the returns are not received by the department by the time specified, such returns may (p.212) be ignored and the results on file at that time may be certified by the department' ” (emphasis added). There is also a potential conflict, which became a reality in this election, between the seven‐day window for a county to submit its returns and the time needed to complete a manual recount as contemplated by Fla. Stat. 102.166 (see below for details). These apparent inconsistencies were resolved by the Florida Supreme Court in Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (2000), using standard principles of statutory construction, and an equitable remedy was fashioned by which the November 14 deadline was extended to November 26.

Protest: Before the county canvassing board certifies the results for a specific office or within seventy‐two hours after the day of the election, whichever occurs later, any candidate or political party whose candidates' names appeared on the ballot may file a written request for a manual recount (Fla. Stat. 102.166 (4)(a),(b)). If the board authorizes a manual recount, it must include at least three precincts and at least 1 percent of the total votes cast for the candidate. The person or party requesting the recount has the right to select the three precincts to be recounted (Fla. Stat. 102.166 (4)(d)). If this preliminary manual recount “indicates an error in the vote tabulation which could affect the outcome of the election,” the board can order a manual recount of all the ballots in the county (Fla. Stat. 102.166 (5)).

Contest: The certification of a candidate's election by the Elections Canvassing Commission can be contested by an unsuccessful candidate for that office, qualified voter, or taxpayer by filing a complaint with the clerk of the circuit court within ten days after the last county canvassing board certifies the results of the election or within five days after the last county canvassing board certifies the results of the election following a protest, whichever occurs later (Fla. Stat. 102.168 (1),(2)). The contestant must allege one of the following: misconduct, fraud, or corruption by an election official that is sufficient to change or place in doubt the result of the election; that the elected candidate is ineligible for the office; the receipt of enough illegal votes, or the rejection of enough legal votes, to change or place in doubt the result of the election; proof that a voter, election official, or canvassing board member was bribed; or another charge that, if sustained, would show that someone other than the elected candidate actually won the election (Fla. Stat. 102.168 (3)). The circuit judge before whom the contest is brought “may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances” (Fla. Stat. 102.168 (8)).

(18.) I will mention only those lower court decisions that impacted on the Supreme Court's decisions.

(19.) A stay is a judicial decision preserving the status quo until the court has (p.213) finally decided the case on its merits. In this case, there was a dispute over whether the status quo was a continuation of the ongoing count or a stopping of the count. The majority stopped the count.

(20.) Several issues that never made it to the Supreme Court may have contributed significantly to Gore losing the election. An investigative report by Julian Borger for Britain's The Guardian (London) established that Harris hired a conservative group to purge all ex‐felons from the voter rolls. The group eliminated black voters with a vengeance, including some blacks whose voting rights had been restored, others who had been convicted of mere misdemeanors and were eligible to vote, and still others who were convicted in other states and may also have been eligible to vote. An election supervisor told Borger, “Yes, there were errors on the list. . . . There were instances of mistaken identity and people who should not have been on it. Something doesn't work right in the system.”

Other blacks who remained on the voter list were kept from voting or having their votes counted with tactics that ranged from the use of old voting machines in minority areas (which produced high levels of uncounted votes in those areas) to the employment of police roadblocks and other forms of intimidation in black areas on Election Day. Julian Borger reported:

On election morning, Darryl Gorham was driving some neighbours to vote in Woodville, outside Tallahassee. They turned a bend in the road about a mile before the polling station and came across a scene straight out of the segregation era: roadblocks. “There were four Florida highway patrolmen standing in the middle of the street,” Mr. Gorham said. “They were stopping everybody. They had seven or eight cars stopped on the side of the road and waiting. They inspected the headlights, tail‐lights, indicators, licence, registration, tags, everything. . . . I've lived in Florida most of my life, but I have never, ever seen a roadblock like that.” Mr. Gorham is convinced that the white policemen were trying to slow down the flow of black voters in a historically tight election. He said: “It took maybe 15, maybe 20 minutes. But many people were taking time out from work, or going to work, and it was making them late. Some just turned 'round and went back.” (Julian Borger, “How Florida Played the Race Card,” The Guardian, Dec. 4, 2000, 3)

These tactics are now the subject of a spate of voting‐rights lawsuits.

Gore, on the other hand, may have benefited from the media's early call that he had won the state—a call that came before the voting ended in the western part of Florida's Panhandle, which is on Central Time. It is impossible to know how many, if any, Bush voters stayed home after hearing the state called for Gore.

(21.) David von Drehle, Dan Balz, Ellen Nakashima, and Jo Becker, “A Wild Ride into Uncharted Territory,” Washington Post, Jan. 28, 2001. The Miami Herald reported on Jan. 7, 2001, that Gore lost an additional 316 votes in Miami‐Dade County as the result of 1,700 voters having inadvertently (p.214) punched “the chad immediately below the one corresponding to their preferred candidate.” These voters “penetrated a meaningless chad.” The cause of this error was a misalignment of the ballot cards with the ballot books in the voting booth.

(22.) Joel Engelhardt and Scott McCabe, “Over‐Votes Cost Gore the Election in Florida,” Palm Beach Post, Mar. 11, 2001.

(23.) Pat Buchanan, interview by Charles Gibson, Primetime, ABC News, Nov. 9, 2000.

(24.) Deadlock, 69.

(25.)

“Almost half of the Gore–Buchanan overvotes were from precincts where most of the voters were 65 or older and Democrats. Even if 1 percent of the 6,607 votes were intended for Buchanan or McReynolds—more than their combined portion of Palm Beach County's total vote—Gore would still have gained 6,541 votes, the newspaper concluded:

Are these stupid voters? Or is it a stupid voting system? There's certainly evidence here that these were not stupid voters,” University of California‐Berkeley Professor Henry Brady said. . . .

Three‐fourths of the over‐votes were punches for two candidates, most of which experts attributed to the ballot design, the paper said. The rest were for three or more candidates, which experts called voter error, not a design problem. . . .

The review of over‐votes was conducted between January 17 and January 29. Last year, Brady calculated that at least 2,000 of Buchanan's 3,424 Palm Beach County votes were meant for Gore. If that were true, Gore's total gain—with the over‐votes—might have been as much as 8,600 votes, the paper said.

(www.cnn.com/2001/ALLPOLITICS/03/11/palmbeach.recount/index.html)

(26.) The complaint in Horowitz v. LePore, CL 001 0970 AG (2000), alleges that “the ballot format used in connection with the voting for President and Vice‐President in the November 7, 2000, General Election was misleading, deceptive, and caused many of the voters in the election to cast votes for candidates other than the candidate for whom they intended to vote.”

(27.) The Washington Post has put a slightly different spin on her party loyalty:

LePore is a doer, not a theorist. The eldest of eight in a close‐knit, hardworking Catholic family, LePore got her first job at the election supervisor's office when she was 16 through her father Joe, a former city commissioner. She started out working part‐time and never left. The job suited Theresa, who prided herself on organization and order.

When her mentor stepped down in 1996 and LePore ran for supervisor herself, she declared as a Democrat because that's where the votes are in Palm Beach County. But “she is not political at all,” County Commissioner Mary McCarty, a Republican, later said. “She has no use for the Republican or the Democratic Party.”

(p.215) There were many registered Democrats in Florida with loyalties to George W. Bush (the so‐called Jeb Bush Democrats).

(28.) 3 U.S.C. sec. 1. Absentee ballots can, however, be cast before that day.

(29.) David van Drehle, Ellen Nakashima, Susan Schmidt, and Ceci Connolly, “In Florida, Drawing the Battle Lines,” Washington Post, Jan. 29, 2001, quoting George J. Terwilliger III.

(30.) This decision was affirmed in Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240 (2000).

(31.) Van Drehle et al., “In Florida, Drawing the Battle Lines.”

(32.) Deadlock, 68.

(33.) Peter Aronson, The National Law Journal, Dec. 18, 2000 (quoting cross‐examination of John Ahmann, holder of several patents for components of the Votomatic).

(34.) Mark Z. Barabak and Richard A. Serrano, “Decision 2000: America Waits,” Los Angeles Times, Dec. 4, 2000.

(35.) Stacey Singer and John Maines, “Many Disqualified Votes in Minority Areas,” Chicago Tribune, Dec. 1, 2000.

(36.) Jan Adlingsworth, “Voting Instructions Lacking in Some Punch‐Card Counties,” Tampa Tribune, Dec. 14, 2000. This article contradicts Chief Justice Rehnquist's assertion that “[e]ach Florida precinct . . . provides instructions on how properly to cast a vote.”

(37.) The Florida Supreme Court eventually deprived them of that statutory right by ruling that the interests of all the voters to have their lawful ballots counted trumped the tactical advantage sought by any particular candidate. Gore v. Harris, 772 So. 2d. 1243, 1253 (2000).

I have never understood why the Gore team focused so exclusively on the undervotes rather than also including the overvotes—ballots not counted because the voter had punched or dented two (or more) chads for the same office, especially since there is a close, if inverse, relationship between these two categories of uncounted ballots. For example, if a fully punched‐through ballot with a hanging chad should be counted during a hand count of undervotes, then it would follow that a punched‐through hole with a hanging chad would disqualify as an overvote any ballot that contained a vote for another candidate for president. Perhaps the Gore advisors suspected that they would do better in the undervotes rather than the overvotes, but there is no a priori reason to suspect that if hand‐counting undervotes would help a particular candidate, counting overvotes would hurt him. Indeed, what we now know about Palm Beach County suggests that Gore was hurt by not counting both undervotes and overvotes. See USA Today, April 4, 2001, A1. The Gore camp decided, however, to go after the undervotes in four Democratic counties in which Gore could expect to pick up votes by a hand count of undervotes.

(38.) According to one study, Gore would have been better off requesting a narrower criterion for counting ballots. See “Florida's Unchanging Lessons” (p.216) (editorial), New York Times, Apr. 6, 2001, describing the results of the Miami Herald/USA Today study of the ballots.

(39.) The others were the safe‐harbor and Electoral College meeting dates, about which more later.

(40.) See page 19, note 17.

(41.) Michael Cooper, “Counting the Vote,” New York Times, Nov. 12, 2000.

(42.) Sec. 5 of the Fourteenth Amendment to the U.S. Constitution gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.”

The principle of equality—at least for nonblacks—has been a defining element of American government since its inception. The Declaration of Independence regarded the ideal of equality as so basic and secure that a nation could be founded on it: “We hold these Truths to be self‐evident, that all Men are created equal” (para. 2). However, it took a civil war and the subsequent enactment of the Fourteenth Amendment in 1868 before this principle was accorded its proper place in the Constitution. Shortly after the end of the Civil War, Congress ratified the Thirteenth Amendment (prohibiting slavery in the United States), Fourteenth Amendment (guaranteeing due process and equal protection), and Fifteenth Amendment (precluding the use of race as a basis for denying a citizen's right to vote). Together these amendments are commonly referred to as the Civil War amendments.

(43.) Slavery was officially ended by President Abraham Lincoln's Emancipation Proclamation, which took effect on Jan. 1, 1863.

(44.) See Strauder v. West Virginia, 100 U.S. 303, 306 (1879), asserting that the purpose of the Fourteenth Amendment was “to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons.”

(45.) “Congressman Stevens, introducing the Fourteenth Amendment in the House characterized its basic purpose as ‘the amelioration of the condition of the freedmen.’ ” Eric Schnapper, “Affirmative Action and the Legislative History of the Fourteenth Amendment,” 71 Va. L. Rev. 753, 785 (1985).

(46.) See Chester J. Antieau, The Original Understanding of the Fourteenth Amendment (Mid‐America, 1981), 14–17; see also Regents of University of California v. Bakke, 438 U.S. 265, 293 (1978), stating that although the Framers intended to bridge the gap between the white majority and the black minority, “the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude.”

(47.) For example, Senator John Sherman of Ohio asserted that all people “should stand equal before the law” (Antieau, Original Understanding, 16). Similarly, Senator Lyman Trumbull argued that the amendment “would put in the fundamental law the declaration that all the citizens were entitled to equal rights in this Republic” (ibid., 15).

(48.) Reed v. Reed, 404 U.S. 71 (1971).

(49.) City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).

(p.217)

(50.) Skinner v. Oklahoma, 316 U.S. 535 (1942).

(51.) Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966).

(52.) Shapiro v. Thompson, 394 U.S. 618 (1969).

(53.) Griffin v. Illinois, 351 U.S. 12 (1956).

(54.) The most striking example of this is Adarand v. Pena, 515 U.S. 200 (1995); see also Richmond v. Croson, 488 U.S. 469 (1989); Wygant v. Jackson Bd. of Education, 476 U.S. 267 (1986).

(55.) Van Drehle et al., “In Florida, Drawing the Battle Lines.”

(56.) Deadlock, 163, quoting George J. Terwilliger III.

(57.) See, e.g., Powers v. Ohio, 499 U.S. 400 (1991), Scalia dissenting.

(58.) Florida has long followed the clear‐intent standard in all elections. As its supreme court ruled in Boardman v. Esteva, 323 So. 2d 259, 263 (1975):

[T]he real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and utmost importance to the people, thus subordinating their interests to that of the people. Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right. (Emphasis added)

In a similar vein, in Darby v. State, 72 So. 411, 412 (1917) (the Florida ballot initiative case), the supreme court said:

Where a ballot is so marked as to plainly indicate the voter's choice and intent in placing his marks thereon, it should be counted as marked unless some positive provision of law would be thereby violated.

The declaration that “[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board,” in Fla. Stat. 101.5614 (5), reads better as a reminder of a generally applicable principle than as a unique standard to be applied only in the narrow case of damaged ballots. The use of the comprehensive “no vote,” as opposed to a narrower “no damaged ballot” or “none of these ballots,” reinforces this reading. In fact, in a state that clearly provides for manual recounts (and doesn't prohibit manual counts of the initial vote), it is hard to see what other standard could apply. The statutes certainly don't provide an alternative standard.

Fla. Stat. 101.5614 (7), which comes a few lines below the announcement of the intent‐of‐the‐voter standard, specifically allows absentee ballots to be counted mechanically “if they have been punched or marked in a (p.218) manner which will enable them to be properly counted by such equipment,” or by hand, whether or not they are capable of being counted by machine. Presumably, all these ballots should be counted according to the intent of the voter standard mentioned above, not just the damaged ones. No other standard is mentioned. And if the intent‐of‐the‐voter standard is appropriate for counting all absentee ballots, even those that are not damaged and could have been counted by machine, then how can it be inappropriate for counting all damaged and undamaged ballots?

(59.) As part of their legal and political argument, Republicans pointed to the possibility that during a manual count, some hanging chads might fall off. Even if that claim is true factually, it could have no legal bearing on the accuracy of a count if a fully punched‐through ballot with a hanging chad is to be counted as a valid vote, as it must be under the voter‐intent standard. Thus, there is no legal difference between a fully punched‐through ballot with a hanging chad and one without. The only factual claim that could make a legal difference would be if chads that were fully attached could fall off during a hand count, but there was no evidence that this could occur.

(60.) Von Drehle et al., “In Florida, Drawing the Battle Lines.”

(61.) Siegel v. LePore, 120 F. Supp. 2d 1041 (S.D. Fla. 2000).

(62.) Fla. Stat. 102.166 (4)(d) and 102.166 (5)(c).

(63.) See note 58 for the full text of the relevant passage in the statute.

(64.) Darby v. State, 75 So. 411, 412 (1917).

(65.) Boardman v. Esteva, 323 So. 2d. 259 (1975).

(66.) Beckstrom v. Volusia, 707 So. 2d. 720 (1998).

(67.) Ibid.

(68.) Democrats, predictably led by the Reverend Jesse Jackson, were quick to identify and broadcast the discrepancy between the high number of votes rejected in poorer, predominantly black areas and the much smaller number rejected in wealthier, predominantly white areas. Republicans were equally quick to counter this allegation by pointing out that Palm Beach County, where most of the election controversy centered, is neither poor nor predominantly black. The truth, as usual, was much more nuanced, but it tended to support the Democrats' allegations. While many factors, including age, education, voting experience, the form of the ballot, and the helpfulness of the precinct's staff, undoubtedly played a part in creating unusually high rates of voter error in some precincts, it is also generally true that precincts in which the more accurate optical scanning machines were employed were generally wealthier than those in which the old Votomatic machines were used. There was also a general correlation between the percentage of minority voters in a county and that county's rate of voter error. According to a Washington Post analysis of Florida's Miami‐Dade County, “precincts where fewer than 30 percent of the voters are black had about 3 percent of ballots that failed to register a vote for president. In precincts where more than 70 percent of the voters are black, the (p.219) undervote was nearly 10 percent.” “Fixing the Vote,” Washington Post, Dec. 11, 2000.

(69.) I was extremely critical of that lawyer. See New York Times, Nov. 18, 2000, A1.

(70.) See David von Drehle et al., “A ‘Queen’ Kept Clock Running,” Washington Post, Jan. 30, 2001, which lists the allowable reasons as “vote fraud, machine malfunction, substantial negligence on the part of election officials and natural disasters—but not voter error.”

(71.) Ibid.

(72.) Paul A. Gigot, “Burgher Rebellion,” Wall Street Journal, Nov. 24, 2000.

(73.) Adam Nagourney and David Barstow, “The 43rd President: Resisting the Recount,” New York Times, Dec. 22, 2000.

(74.) Boies was subsequently criticized for agreeing that this deadline was significant. See Dan Balz et al., “A War Leaves Its Questions,” Washington Post, Feb. 4, 2001: “Still, there is a question of what might have happened had Boies, in oral argument before the Florida high court on Nov. 20, not agreed so readily that Dec. 12.—the date for naming Florida's electors—was a firm deadline.” My own view is that nothing different would have happened, considering the predisposition of the majority of the U.S. Supreme Court.

(75.) There were two significant challenges brought against the validity of absentee ballots. First, a lawsuit was filed to disqualify either all or some of the 15,215 absentee ballots in Seminole County, where Bush enjoyed a lead of almost 5,000 votes among absentee ballots (Jacobs v. Seminole County Canvassing Board). The complaint alleged that the Seminole County Canvassing Board allowed Republican Party volunteers to fill in missing voter registration numbers on applications submitted by registered Republican voters requesting absentee ballots. This action was alleged to be in violation of sec. 101.62 of the Florida Statutes, which provides that a request for an absentee ballot must be made by the voter or a member of the voter's immediate family and that the person making the request must disclose certain information, including the registration number on the elector's registration identification card. The complaint further alleged that the office of the Seminole County Supervisor of Elections failed to inform the Democratic Party of the actions of the Republican Party volunteers and to afford them the same opportunity to correct defective requests for absentee ballots from Democratic Party members. A similar suit was filed in Martin County (Taylor v. Martin County Canvassing Board). Both suits were ultimately dismissed by the Florida Supreme Court in two nearly identical rulings, both issued on December 12, 2000. Despite finding “troubling” irregularities in conduct by the county canvassing boards, the court held that there had been substantial compliance with the absentee voting laws and that there was no evidence of “fraud or other intentional misconduct” that would justify throwing out the ballots.

The second controversy involved a challenge to many of the overseas (p.220) absentee ballots cast by members of the U.S. Armed Forces—the so‐called military ballots. Section 101.62 (7)(c) of the Florida election statute provides: “With respect to marked ballots mailed by absent qualified electors overseas, only those ballots mailed with an APO, FPO, or foreign postmark shall be considered valid.” But, for whatever reason, many of the military ballots arrived in Florida without any postmark. This created a problem because Florida law clearly requires all overseas absentee ballots to be postmarked by Election Day and received within ten days after the election. Without a postmark, it was impossible to tell whether a ballot that arrived after November 7 actually had been cast in time (Washington Post, Nov. 11, 2000). Several lawsuits sought to ensure that these overseas absentee ballots were included in the final count. Ultimately, bipartisan sympathy, led by Sen. Bob Dole and Sen. Joseph Lieberman, for members of the military prevented any serious challenge to these ballots from taking place (lawsuits were Harris v. Florida Elections Canvassing Commission and Bush v. Hillsborough County Canvassing Board).

(76.) Fla. Stat. 102.112 (1) says:

The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after certification of the election results. Returns must be filed by 5 P.M. on the 7th day following the first primary and general election and by 3 P.M. on the 3rd day following the second primary. If the returns are not received by the department by the time specified, such returns may be ignored and the results on file at that time may be certified by the department.

(77.) See, e.g., Durham v. U‐Haul Int'l, 2001 Ind. LEXIS 297 (Ind. 2001) (“[W]e must attempt to determine what the legislative body intended when the statute was enacted. To facilitate this obligation courts have developed a number of rules on statutory construction, all of which are intended to give deference to the intent of the legislature”); True v. Stewart, 18 P.3d 707, 713 (Ariz. 2001 Ariz.) (“In construing and applying a statute, we should consider the statute's context; its language, subject matter, and historical background; its effects and consequences; and its spirit and purpose” [internal citation omitted]); People v. Wiedemer, 852 P.2d 424, 432 (Colo. 1993) (“The principles by which we must resolve this asserted conflict are well established. We must construe statutes harmoniously whenever possible and avoid interpretations that result in inconsistency”); Lather v. Huron College, 413 N.W.2d 369, 375 (S.D. 1987) (“[It is] the judiciary's vested duty to construe statutes and resolve questions of law”).

(78.) See, e.g., Joan Biskupic, “Candidates' Legal Options Dwindle,” USA Today, Nov. 24, 2000 (“Although little in the aftermath of the election Nov. 7 has been predictable, it would be unprecedented for the U.S. Supreme Court to accept Bush's urgent request for intervention”). This appeared on the day that the Court granted certiorari in the first of the two Supreme Court cases. See also John Aloysius Farrell and Lynda Gorov, “U.S. Supreme (p.221) Court Enters Fray,” Boston Globe, Nov. 26, 2000; Paul West, “Ballot Battle Shows No End,” Baltimore Sun, Nov. 25, 2000.

(79.) Linda Greenhouse, New York Times, Feb. 20, 2001, A18.

(80.) I have deliberately hypothesized a case of discrimination based on sexual orientation because it is not clear that gays are a “protected group” under the federal Constitution, but they are a protected group under some state constitutions.

(81.) 5 U.S. (1 Cranch) 137, 177–178 (1803).

(82.) The majority of four judges issued a per curiam opinion in which they agreed that “we must do everything required by law to ensure that legal votes that have not been counted are included in the final election results” and decided “that the ultimate relief would require a counting of the legal votes contained within the undervotes in all counties where the undervote has not been subjected to a manual tabulation.” Thus, the statewide manual recount was put in motion. Three judges dissented from this opinion. Chief Judge Wells worried that “there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution.” He cautioned that “[j]udicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters—not by judges” and that he believed that the lower court ruling denying a recount should not be overturned unless there was clear error, which he could not find. He and the other two dissenting judges also felt that it was imperative to conclude the election by the safe‐harbor deadline in December. They wrote that authorizing a recount, which they believed would not meet the safe‐harbor deadline, would create “the very real possibility of disenfranchising those nearly six million voters who were able to correctly cast their ballots on Election Day.” Gore v. Harris, 772 So. 2d 1243 (2000).

(83.) Fla. Stat. 101.5614 (5) (2000).

(84.) Indeed, Justices Breyer and Souter would have remanded the cases to the Florida Supreme Court for precisely that purpose—despite the fact that they had joined the per curiam opinion, which implied that such an action might violate Article II.

(85.) See Hamilton v. Texas, 497 U.S. 1016 (1990). Justice Thomas was not yet on the Court, but there is little doubt from his subsequent votes that he would have joined the majority in denying the stay in that capital case.

(86.) In at least two cases, the Supreme Court has granted certiorari in a death case but could not get the requisite five votes to stay the execution. The first was in Hamilton v. Texas, 497 U.S. 1016 (1990), and the second was Herrera v. Collins, 502 U.S. 1085 (1992). In both cases, there were four votes to grant certiorari, but no fifth vote to stay the execution. In Hamilton, the petitioner was executed before the Court could hear his case, and his case was dismissed as moot. In Herrera, the Texas Court of Criminal Appeals stayed the petitioner's execution in order to permit the case to be heard by the Supreme Court, but only after the Supreme Court itself refused (p.222) to do so. The Court decided against Herrera, and he was then executed.

In addition, at least three times in the mid‐1980s, the Supreme Court had voted to hold a case (a decision requiring only three votes) pending the disposition of another case raising the same issue, but refused to stay the execution in the held case. See Straight v. Wainwright, 476 U.S. 1132 (1986) (four votes to hold the case pending the decision in Darden v. Wainwright, no fifth vote to stay execution); Watson v. Butler, 483 U.S. 1037 (1987) (four votes to hold the case pending the decision in Franklin v. Lynaugh, Court split 4–4 on stay of execution because Justice Powell had retired and no ninth justice had yet been appointed to replace him); and Streetman v. Lynaugh, 484 U.S. 992 (1988) (case held pending the decision in Lowenfield v. Phelps, but execution not stayed).

(87.) Watson v. Butler, 483 U.S. 1037 (1987).

(88.) Hamilton v. Texas, 497 U.S. 1016 (1990). In another case, Justice Brennan explained why four votes to hold a case pending the outcome of another, related case should be enough to stay an execution:

A minority of the Justices has the power to grant a petition for certiorari over the objection of five Justices. The reason for this “antimajoritarianism” is evident: in the context of a preliminary 5‐to‐4 vote to deny, 5 give the 4 an opportunity to change at least one mind. Accordingly, when four vote to grant certiorari in a capital case, but there is not a fifth vote to stay the scheduled execution, one of the five Justices who does not believe the case worthy of granting certiorari will nonetheless vote to stay; this is so that the “Rule of Four” will not be rendered meaningless by an execution that occurs before the Court considers the case on the merits. (Straight v. Wainwright, 476 U.S. 1132, 1134–35 (1986), Brennan dissenting)

Justices O'Connor and Rehnquist joined an opinion by Justice Powell explaining why this case, in which four justices voted to hold, was different from a case in which four justices actually voted to grant certiorari:

Justice Brennan correctly notes that, in the past, the Court has ordinarily stayed executions when four Members have voted to grant certiorari, and he maintains that “ ‘a hold’ is analogous to a decision to grant a petition for certiorari.” . . . In my view, this last assertion is incorrect on several levels. First and foremost, the Court often “holds” cases for reasons that have nothing to do with the merits of the cases being held, as when we wish not to “tip our hand” in advance of an opinion's announcement. Second, when certiorari is granted, by definition the Court's resolution of the issues presented in that case might affect the judgment rendered below. That is not necessarily true of held cases.

Yet just four years later, O'Connor and Rehnquist disregarded this distinction and voted to execute men after the Court granted certiorari but before they could hear and decide the cases (Hamilton (1990), Herrera (1992)). (p.223) In another such case, Justice Brennan wrote as follows:

Streetman, in his application for stay, raises precisely the question we agreed to consider in Franklin. Despite the fact that there were sufficient votes on this Court to hold Streetman's case for Franklin, there were not enough votes to grant Streetman's application for a stay. Had Streetman been convicted of bank robbery, this would be of no moment. The Court would simply hold Streetman's case until Franklin was decided, and then take appropriate action. But death is different. Due to the unique nature of the penalty, the relief that we could give any other type of habeas corpus petitioner is unavailable to Streetman. His case will be moot long before we can resolve Franklin—he will be dead. Therefore, we are presented with the same ironic situation as occurred in Watson v. Butler, 483 U.S. 1037 (1987), the normal and time‐tested procedures of this Court are overcome by the different nature of the death penalty. Death is certainly different, but I had never believed it to be different in this way. (Streetman v. Lynaugh, 484 U.S. 992, 995–96(1988), Brennan dissenting)

(89.) Tony Mauro, “Killer Executed Though High Court Wanted to Review Case,” Gannett News Service, Oct. 19, 1990.

(90.) In fact, the subsequent manual recount conducted by the Miami Herald and USA Today suggested that there was a relatively high level of agreement by different counters applying a fairly broad standard.

(91.) These are the examples selected by the Court:

A monitor in Miami‐Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal.

(92.) It is rare for a justice to explain why he voted for a stay.

(93.) Fla. Stat. 102.166, sets forth the procedure for protest of election returns:

  1. (1.) Any candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy, shall have the right to protest the returns of the election as being erroneous by filing with the appropriate canvassing board a sworn, written protest.

  2. (2.) Such protest shall be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 5 days after midnight of the date the election is held, whichever occurs later.

    (p.224)
  3. (3.) Before canvassing the returns of the election, the canvassing board shall:

    • (a.) When paper ballots are used, examine the tabulation of the paper ballots cast.

    • (b.) When voting machines are used, examine the counters on the machines of nonprinter machines or the printer‐pac on printer machines. If there is a discrepancy between the returns and the counters of the machines or the printer‐pac, the counters of such machines or the printer‐pac shall be presumed correct.

    • (c.) When electronic or electromechanical equipment is used, the canvassing board shall examine precinct records and election returns. If there is a clerical error, such error shall be corrected by the county canvassing board. If there is a discrepancy which could affect the outcome of an election, the canvassing board may recount the ballots on the automatic tabulating equipment.

  4. (4. a.) Any candidate whose name appeared on the ballot, any political committee that supports or opposes an issue which appeared on the ballot, or any political party whose candidates' names appeared on the ballot may file a written request with the county canvassing board for a manual recount. The written request shall contain a statement of the reason the manual recount is being requested.

    • (b.) Such request must be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 72 hours after midnight of the date the election was held, whichever occurs later.

    • (c.) The county canvassing board may authorize a manual recount. If a manual recount is authorized, the county canvassing board shall make a reasonable effort to notify each candidate whose race is being recounted of the time and place of such recount.

    • (d.) The manual recount must include at least three precincts and at least 1 percent of the total votes cast for such candidate or issue. In the event there are less than three precincts involved in the election, all precincts shall be counted. The person who requested the recount shall choose three precincts to be recounted, and, if other precincts are recounted, the county canvassing board shall select the additional precincts.

  5. (5.) If the manual recount indicates an error in the vote tabulation which could affect the outcome of the election, the county canvassing board shall:

    • (a.) Correct the error and recount the remaining precincts with the vote tabulation system;

      (p.225)
    • (b.) Request the Department of State to verify the tabulation software; or

    • (c.) Manually recount all ballots.

  6. (6.) Any manual recount shall be open to the public.

  7. (7.) Procedures for a manual recount are as follows:

    • (a.) The county canvassing board shall appoint as many counting teams of at least two electors as is necessary to manually recount the ballots. A counting team must have, when possible, members of at least two political parties. A candidate involved in the race shall not be a member of the counting team.

    • (b.) If a counting team is unable to determine a voter's intent in casting a ballot, the ballot shall be presented to the county canvassing board for it to determine the voter's intent.

  8. (8.) If the county canvassing board determines the need to verify the tabulation software, the county canvassing board shall request in writing that the Department of State verify the software.

  9. (9.) When the Department of State verifies such software, the department shall:

    • (a.) Compare the software used to tabulate the votes with the software filed with the Department of State pursuant to sec. 101.5607; and

    • (b.) Check the election parameters.

  10. (10.) The Department of State shall respond to the county canvassing board within 3 working days.

(94.) Washington Post, Dec. 14, 2000.

(95.) Ronald Brownstein, “In Blocking Vote Count, High Court Shows Which Team It's Rooting For,” in Dionne and Kristol, eds., Bush v. Gore, 268.

(96.) Quoted in Vincent Bugliosi, “None Dare Call It Treason,” The Nation, Feb. 5, 2001.

(97.) Bush v. Gore, 121 S. Ct. 512, 513 (2000), dissenting from order granting stay of manual recounts.

(98.) “It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.” (Scalia)