FOUR

THE ELECTION OF 2000

Reflecting on the 2000 presidential election, one might detect the handiwork of a cosmic joker. Consider that the winner was partly determined by elderly Jews who, eager to elect the nation’s first Jewish vice president, prevented that result by accidentally voting for someone many regard as anti-Semitic. Palm Beach, Florida’s, so-called butterfly ballot, ironically designed by Democrats, led many confused Gore-Lieberman supporters to cast their ballot for Pat Buchanan. Consider, too, that the entire election nationwide came down to a virtual tie, leading to virtual anarchy, in a state that happened to be governed by the brother of one of the candidates.

Before its absurdist last chapter, the 2000 campaign lacked a theme. Like the presidential campaign of 1876, it featured relatively little policy debate. After Bill Clinton’s two terms as president, a period marked by economic growth at home and peace abroad, Democrats figured they would win if they played things safe. Clinton’s loyal vice president, Al Gore, easily captured the party’s nomination over Bill Bradley, the former U.S. senator who advanced a more ambitious policy agenda. As the party’s nominee, Gore put forth few meaningful positions, more or less running for Clinton’s third term—minus the scandals that attached to the president and culminated in his impeachment.

Given those scandals, Republicans, too, figured they would win if they played things safe. Party leaders pretty much anointed as their nominee George W. Bush, the bland governor of Texas and son of a former president. Though Senator John McCain, the maverick Arizonan, interrupted Bush’s coronation by winning a few early primaries, Bush secured the nomination with relative ease. He offered “compassionate conservatism,” an opaque formulation suggesting that he didn’t plan to stir up trouble or veer terribly far from Clinton’s path. Green Party candidate Ralph Nader, who received almost 3 million votes, claimed that abortion was the only issue separating the major parties, quipping that Democrats and Republicans were the pro-choice corporate party and pro-life corporate party respectively.

A lackluster campaign in a complacent and evenly divided nation produced the closest presidential election in U.S. history. On the night of the election, November 7, it became apparent that the winner of the Electoral College would be whichever candidate won Florida. The networks first called the state, and hence the nation, for Gore, then flipped and called it for Bush, but in each case acted prematurely. After the networks projected Bush as the winner at 2:00 a.m. Eastern Standard Time, Gore called his rival and conceded. He retracted the concession hours later when it became apparent that the race was in fact too close to call.

When the votes were finally all in on November 8, Bush enjoyed a minuscule 1,784-vote lead out of nearly 6 million ballots cast—thanks, in part, to the confusing butterfly ballot and perhaps the alleged purge of some African Americans from the voter rolls.⁸⁶ (The latter possibility was one of many similarities to the 1876 election.) Post-election, nothing could be done about voter suppression, and while Palm Beach voters filed a suit concerning the butterfly ballot, Gore’s legal team recognized its futility and did not join in. Florida’s Supreme Court eventually ruled that the flawed ballot design did not violate state law and, in any event, could not be remedied.

Even without considering the votes Gore may have lost to badly designed ballots and voter suppression, as well as the 97,000 Floridians who cast ballots for Nader, most of whom presumably preferred Gore to Bush, the state was ridiculously close. Because Bush’s infinitesimal 0.03 percent margin was less than 0.5 percent, Florida law called for a mandatory machine recount. That recount, undertaken on November 9, narrowed Bush’s lead to a mere 327 votes. A little-known but potentially decisive fact is that eighteen counties, encompassing roughly a fourth of the statewide vote, apparently never conducted the required machine recount.⁸⁷

Florida law gives each county’s canvassing board discretion to begin a manual recount upon a candidate’s or party’s request. When a board does so, it must sample 1 percent of the vote. If, based on that sample, it finds sufficient basis for believing that an “error in the vote tabulation” affected the outcome, it shall conduct a full recount. In the course of the next month, assorted state and federal judges would disagree about whether “error in the vote tabulation” requires a malfunction by the vote-tallying machines or refers more broadly to any failure to register an intended vote—if, for example, on an optical-scan ballot, the voter did not completely fill in the oval with her pencil and the machine did not detect the mark. Or, in the case of punch-card ballots, voters may have indented the space next to a candidate’s name but failed to perforate it fully, creating the infamous dimpled and hanging chads. These and related voter failures produced “under-votes.” In other cases, a stray pencil mark or other mishap can lead the machine to reject a vote because it detects two—a so-called “over-vote.” In either case, a manual recount might reveal the intention of the voter. But the machine’s failure to count such ballots resulted from the voter’s negligence. Could that be said to constitute an “error in the vote tabulation” as required by Florida law before a full recount is authorized?

Assuming a broad interpretation of “error in the vote tabulation,” Gore would have little trouble obtaining a recount. But where? One would think the entire state, but lawyers for Gore and the Florida Democratic Executive Committee exploited loopholes in Florida election law to request a recount in only four heavily Democratic counties. These counties accepted the invitation, sampled the requisite 1 percent of ballots, and concluded that a full recount was justified. On November 13, however, Florida’s secretary of state, Katherine Harris, announced that manual recounts were not lawful and that she planned to certify the election the following day and ignore vote totals submitted thereafter. Although she was an unabashedly partisan Republican, not to mention cochair of Bush’s campaign in Florida, Harris’s position was not frivolous. She based the November 14 deadline on state law requiring counties to submit vote counts within a week of the election. In rejecting recounts, Harris relied on an advisory opinion by a state agency, the Florida Division of Elections, adopting the restrictive view of “error in the vote tabulation.” The director of the Division, however, was also a loyal Republican with close ties to the Bush campaign.

In any event, two of the county canvassing boards, later joined by Gore and the Florida Democratic Party, filed suit in state court seeking to require Harris to accept late results based on recounts. The state’s Democratic attorney general (who happened to be Gore’s state campaign chairman), Bob Butterworth, issued an advisory opinion stating that Harris was mistaken and that recounts were indeed justified. On November 14, four hours prior to the 5:00 p.m. deadline and Harris’s threatened certification, Judge Terry Lewis, ruling on the requested injunction against Harris, gave a mixed decision that on balance favored Bush. Judge Lewis held that Harris had the discretion to refuse late-vote count submissions provided she offered some reasonable basis for doing so. She “may not do so arbitrarily,” Lewis wrote, setting rather low the bar Harris had to clear to put an end to the recounts.⁸⁸

Judge Lewis’s decision was defensible but not obvious, reflecting a problem that plagued the entire process: Under Florida’s convoluted election scheme, nothing seemed straightforward. The “error in the vote tabulation” was one of numerous provisions open to multiple interpretations. The code directly contradicted itself with respect to whether the secretary of state could accept late returns: In one section it indicated that she must certify the election seven days following Election Day, but elsewhere indicated that she may opt to extend the deadline. In either case, absentee ballots were not due for ten days after the election, rendering any certification after seven days incomplete. Moreover, a losing candidate could either “protest” or “contest” the election, two distinct actions governed by different time frames and yielding different remedies. The person who best mastered the protest/contest distinction, Gore’s lawyer David Boise, used it the way the proverbial drunk uses a lamppost: for support, not illumination. In his book about the case thirteen years later, Charley Wells, the chief justice of the Florida Supreme Court, would lament that most of the lawyers and judges ignored the protest/contest distinction.⁸⁹ Bush’s attorneys, for their part, insisted that the court stick to the literal text of Florida election law—as if that had a clear meaning. Wells, a self-styled conservative who ended up siding with Bush, acknowledged that the byzantine election code “simply had too many conflicts” to be interpreted in a manner that “met the test of good common sense and logic.”⁹⁰

One source of predictability throughout the ordeal was Secretary of State Harris: She favored Bush at every turn. The day after Judge Lewis’s decision, Harris reiterated that she would not accept late, revised vote tallies. In response to Lewis’s requirement that she offer a reasonable basis for her decision, Harris explained that Gore failed to establish reason to doubt that the pre-recounted vote reflected the will of the voters. Under the circumstances, Harris maintained, the statutory deadline for certification could not be extended short of an act of God or other circumstance beyond the control of the canvassing boards. She announced her intention to wait a few days for the counting of all overseas ballots on November 18, and then certify the election—minus any revised figures other than those of Volusia County, which had already completed its recount and found a net gain of twenty-seven votes for Gore. That knocked Bush’s lead down to 300, a tiny difference but one Gore could not possibly make up given Harris’s refusal to accept returns based on recounts in the other counties.

The parties returned to Judge Lewis’s court on November 16, with Gore’s attorneys urging Lewis to prevent Harris from certifying the vote before recounts were completed. At the same time the lawyers argued their case to Lewis, the Florida Supreme Court stepped in to answer a question presented by the Palm Beach canvassing board: Was it permitted to continue with recounts before the secretary of state’s decision was litigated? The Court issued an order giving Palm Beach the go-ahead.

The next day, November 17, provided an incomplete victory for Bush. Of the 2,100 overseas ballots counted, he received a net gain of 600, boosting his overall lead in the state to 900. Secretary of State Harris planned, at 5:00 p.m., to certify Bush the winner of the state. Early in the day, she received Judge Lewis’s blessing: He upheld Harris’s decision to reject late votes with a brief, perfunctory opinion stating that she cleared his low bar by providing a nonarbitrary explanation. Gore immediately appealed Lewis’s decision to Florida’s Supreme Court, which set the matter for a hearing on November 20. The Court issued a stay forbidding Harris from certifying the state in the interim.

As should be apparent, both sides sought the courts’ intervention throughout the recount saga. Whereas Gore requested state court rulings authorizing the recounts, Bush sued in federal court to prevent them. At first blush, Bush’s choice of federal court seemed anomalous: Elections are primarily governed by state law and administered by state officials, and Republicans generally lament federal interference with state prerogatives, particularly by the courts. Here, self-interest trumped ideology. Federal litigation figured to end up in the U.S. Supreme Court, where Republican justices predominated. By contrast, Democratic-appointed judges controlled Florida’s Supreme Court. As it turned out, the lawyers for both candidates made the tactically correct call: Gore fared better than Bush in state court and Bush eventually triumphed in federal court, even though his initial foray, urging the U.S. Court of Appeals for the Eleventh Circuit to stop the recounts, was slapped down.

Gore’s first significant success in state court occurred on November 21, the day after the hearing before the Florida Supreme Court: The court unanimously reversed Judge Lewis’s determination that Secretary of State Harris could certify the state for Bush without awaiting and including recount results. The state’s highest court held that “error in the vote tabulation” included any failure to discern an intended vote; it did not require machine malfunction, as Harris maintained. Accordingly, the Court held that Gore was entitled to a recount and that Harris must accept any results completed by November 26. It was not clear where that date came from, and Chief Justice Wells later acknowledged its arbitrariness: The Court sought “a reasonable extended time for voters to have their votes counted” while leaving time for either party to contest the result and for everything to be decided by December 12. (The significance of the latter date is discussed below.) Wells recalled that “the Justices differed substantially as to the new deadline, but all the Justices believed that unanimity was extremely important in this case.”⁹¹ The new deadline gave the three remaining counties five days to complete their recount, which figured to be enough. It was Gore’s turn to celebrate and Bush’s turn to appeal.

Bush immediately sought a writ of certiorari from the U.S. Supreme Court. In the meantime, the recounts proceeded, with Gore gaining votes, particularly in heavily Democratic Miami-Dade. Apparently, many uneducated voters, who overwhelmingly favored Gore, failed to comply perfectly with ballot instructions but made clear the intended beneficiary of their vote. At least that is what Democrats believed. Republicans cried fraud and took the matter into their own hands. On November 22, dozens of GOP operatives and others recruited by them ascended to the nineteenth floor of Miami’s Clark Center office tower, where Miami-Dade conducted its recount away from public view and with restricted access for media. The so-called “Brooks Brothers Brigade” produced a “bourgeois riot,” screaming and pounding on the door demanding entrance into the room, causing such a disturbance that the canvassing board halted its recount.⁹²

On November 26, with Bush maintaining a 537-vote lead, Secretary of State Harris again certified him the winner. She accepted recount results from Broward County but not from Miami-Dade or Palm Beach County, because neither submitted the full results of their recount on time. As noted, Miami-Dade halted its recount midstream in response to on-site protests; Palm Beach submitted the results of its completed recount a few hours after the deadline established by Florida’s Supreme Court. The next day, Gore once again filed suit to undo Harris’s attempted certification. Meanwhile, on December 1, the U.S. Supreme Court heard oral argument on the Florida Supreme Court’s decision to extend the deadline.

The movement in federal court did not halt the simultaneous litigation in state court. On December 2, Florida trial judge Sanders Sauls commenced a two-day hearing to resolve the dispute over Harris’s certification. (For those scoring at home, the challenge to an actual certification meant we technically had moved from the “protest” stage to the “contest” stage.) Sauls held that Gore failed to meet the requisite standard for establishing that a recount would change the outcome of the election. While Gore’s lawyers easily established that the number of under-votes exceeded Bush’s margin, they failed to establish a likelihood that a manual count of these votes would help Gore rather than break even or help Bush. Hence, according to Sauls, Harris was right to certify the state for Bush.

Judge Sauls issued this opinion on December 4, one of two adverse developments for Gore that day. In addition, the U.S. Supreme Court vacated the Florida Supreme Court decision authorizing recounts and extending the deadline for certification, and instructed that Court to clarify the basis of its decision. The U.S. highest court did not decree that Florida’s highest court was mistaken, only that the basis for its decision was unclear. In sending the case back for clarification, the U.S. Supreme Court expressed concern that the Florida Supreme Court had essentially rewritten Florida election law, thereby violating Article II of the U.S. Constitution, which empowers each state’s legislature to determine the method of selecting electors. It was a remarkable suggestion. On its face, the Florida Supreme Court interpreted the scheme created by the state legislature. But it did so in a non-obvious way, which, the U.S. Supreme Court suggested, amounted to improperly changing the election law to accommodate its own ideas of fairness.

In the meantime, following Judge Sauls’s adverse ruling, Gore again turned to Florida’s Supreme Court. Once again, that court came through for him. On December 8, this time by a 4-3 vote, the state’s highest court reversed Sauls’s determination that Katherine Harris acted properly in certifying Florida for Bush. The majority found that Judge Sauls held Gore to an overly demanding standard. Gore should have had to show only that there were sufficient uncounted votes “to place in doubt the result of the election.”⁹³ Because Gore easily met this standard, the Court again held that he was entitled to a recount. However, this time the Court clarified that the recount would be in all sixty-seven of the state’s counties, not solely in Gore’s four handpicked counties. The Court further ordered inclusion of partial recounts in Miami-Dade and Palm Beach, which netted Gore an additional 383 votes, reducing Bush’s lead to just 154.

While the Court remedied Gore’s cherry-picking, it did not alter another arbitrary aspect of the recount: The canvassing boards were looking for under-votes only, not over-votes. Indeed, the Florida Supreme Court’s opinion ordered a statewide recount of under-votes while not mentioning over-votes. One of the dissenting judges, Chief Justice Wells, noted the arbitrary exclusion of over-votes. In addition, Wells cited the absence of a uniform standard for the canvassing boards to apply during their recounts. Noting that the different boards disagreed about numerous questions, such as whether to count a “dimpled chad” as a vote, Wells wrote that “apparently, some do and some do not. Continuation of this system of county-by-county decisions regarding how a dimpled chad is counted is fraught with equal protection concerns.”⁹⁴ Wells’s concern would prove prophetic.

But Wells’s colleagues outvoted him and reversed Judge Sauls. The Court sent the case back to Sauls, who opted to recuse himself without explanation. The Florida Supreme Court had assessed his opinion in unflattering terms, and perhaps Sauls felt that the insult rendered it inappropriate for him to remain on the case. Whatever his reason, the recusal was odd. Trial judges routinely handle cases on remand following reversal by a higher court. Indeed, when Sauls disqualified himself, the case was reassigned to Judge Terry Lewis, who had also been reversed by the Florida Supreme Court during the post-election litigation.

Lewis immediately commenced hearings to determine a standard for evaluating ballots during the recount. He focused on an issue that received extensive media attention and complaints from Republicans: dimpled and hanging chads on punch-card ballots. Judge Lewis seemed eager to establish a single standard across the state, but the parties could not agree on a standard, and Lewis ultimately declined to impose one. He left it up to the canvassing boards, while making himself available to resolve disputes. Lewis ordered that recounts be completed by 2:00 p.m. on December 12, the so-called “safe harbor” date—the federal provision (adopted by the Electoral Count Act in the aftermath of the 1876 election) establishing that Congress must accept any electoral votes submitted within six days of the convening of the Electoral College (which, in 2000, was December 18). That gave the canvassing boards four days to do the job.

However, on the next day, December 9, the U.S. Supreme Court issued a “stay” stopping the recounts pending its decision on their legality. The Court scheduled oral argument for December 11. The overlapping state and federal court proceedings created confusion. As noted, four days before the Florida Supreme Court’s second ruling, a unanimous U.S. Supreme Court vacated the first decision by Florida’s Supreme Court and asked the Florida court to explain whether it had interpreted state law or come up with its own. The court had not responded to that unusual request, and on December 11, during oral argument in the case appealing the second Florida Supreme Court decision, Justice Sandra Day O’Connor criticized the state court for not responding. The Florida Supreme Court scrambled to draft and release its response later that day. Unsurprisingly, the state court took the hint from above and clarified that it had based its decision on its reading of Florida election law.

This was important, because the U.S. Supreme Court has no jurisdiction over matters of state law unless the law or court decision in question violates federal law, including the U.S. Constitution. However, the Supreme Court nevertheless reversed the Florida Supreme Court’s second decision (the one delivered on December 8 but “stayed” on December 9, as the Florida Supreme Court’s first decision was now moot). In a decision handed down on December 12, the Court held that the recounts violated the U.S. Constitution. To be clear, six justices took the Florida Supreme Court at its word that it had indeed interpreted the state election code rather than simply making things up and usurping the power given to the legislature by Article II of the U. S. Constitution. Justices Scalia, Rehnquist, and Thomas issued a concurring opinion claiming otherwise, but they were two votes short of the necessary majority. However, seven justices found a different violation of the U.S. Constitution—one that seemed odd in several respects.

Picking up on Chief Justice Wells’s dissent from the Florida Supreme Court decision, the Court observed that the state court’s decision did not articulate a standard for canvassing boards to apply. In the recounts that had taken place to date, different precincts used different standards for determining what counted as a vote. To take the main example, some canvassing boards considered dimpled and hanging chads sufficient to indicate a voter’s intent, others counted hanging but not dimpled chads, and still others counted neither. In addition, the Court echoed Wells’s complaint that the canvassing boards looked only for under-votes and ignored over-votes. Seven justices of the U.S. Supreme Court (all but Ginsburg and Stevens) believed that these discrepancies in the treatment of ballots by the different canvassing boards violated the Fourteenth Amendment’s guarantee of equal protection under the law.

One problem with the Court’s ruling was its apparent stunning breadth. If different standards for determining votes violated equal protection, then the entire election, not just in Florida but nationwide, was one big equal protection violation (and countless little ones). Different precincts, both within states and from state to state, used different methods for counting and, if necessary, recounting ballots. Why was the Court suddenly committed to uniformity?⁹⁵

Indeed, the Court recognized that its equal protection ruling would have extraordinary repercussions for elections everywhere. Accordingly, the Court’s main opinion (which five justices joined but none would acknowledge authoring, instead issuing it per curiam, meaning “by the court”) included a most unusual sentence: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”⁹⁶ It is rare, if not unprecedented, for a Court to advise that its ruling should never be followed in future cases.⁹⁷

This striking statement reinforced a fundamental problem with the Supreme Court’s decision: Five conservative justices, who normally interpret equal protection narrowly and states’ rights broadly, jettisoned their long-held convictions. Was it a coincidence that such inconsistency, if not hypocrisy, enabled them to dictate that the next president would be one to their liking? Had they latched onto an argument they didn’t believe in because they needed to guarantee George W. Bush’s victory? Many people, including some Republicans, found the equal protection argument flabbergasting.⁹⁸

There was one more problem still with the Court’s equal protection ruling. It followed from the ruling that, to escape the equal protection violation, Florida’s Supreme Court would have had to establish a single standard for the recounts across the state. However, the U.S. Supreme Court had already put the state court on notice that it could not alter the statutory scheme without violating Article II’s stipulation that the state legislature determines how electors are selected. With the benefit of hindsight, we can see that the U.S. Supreme Court placed the Florida Supreme Court in an untenable position: Allow each precinct to determine how to conduct the recount and you violate equal protection, but establish a uniform standard and you violate Article II. This bind amounts to the U.S. Supreme Court saying that 1) the Florida legislature established an unconstitutional method for recounts, but 2) it could not be changed. This logic works only under the assumption that the Court was determined to prevent recounts—period.

Notwithstanding all of the above, the Court’s ruling on equal protection was defensible. Equal protection does require, at a minimum, that government actions be rational and serve some legitimate purpose. Does it make sense to have dimpled chads count as a vote in one county and not another? In fact, the Court’s equal protection ruling commanded seven votes, including two by progressive justices, Breyer and Souter. However, Justices Breyer and Souter did not believe the recounts should be stopped. Since Florida law did provide for recounts (as affirmed by the Florida Supreme Court, in a decision that six justices on the U.S. Supreme Court accepted), the obvious solution was to do what higher courts routinely do when they identify a constitutional problem: send it back to the lower court to see if it could be fixed. In this case, Justices Breyer and Souter maintained, Florida’s Supreme Court, or some official designated by that court, could establish a uniform standard for the statewide recount, thereby curing the equal protection problem.

The five conservative justices said no, for a simple reason: There wasn’t time. The federal law adopted in the aftermath of the 1876 presidential election fiasco dictates that for a state’s electoral votes to be automatically accepted by Congress, the slate of electors must be determined and certified six days before the Electoral College meets in person. In 2000, the Electoral College was set to meet on December 18, making December 12 the so-called “safe harbor” date. However, the Supreme Court handed down its decision at 10:00 p.m. on December 12! Because no timely recount was possible, the Court said, the secretary of state’s certification must stand. Bush would receive Florida’s electoral votes, and hence the presidency. The next day, Gore conceded for the second and final time.

There were several disturbing aspects of the Court’s ruling with respect to the lack of time for a recount. First, the relevant federal provision that established the safe harbor in no way required that a state’s electoral votes be submitted by December 12. That date merely ties the hands of Congress when it comes to accepting such. States remained free to get the votes certified at any time before December 18, when the Electoral College convened, and there was no reason to think Congress would not accept them as late as that date. As Justice Breyer wrote in dissent, “Whether there is time to conduct a recount prior to December 18 . . . is a matter for the state courts to decide.”⁹⁹

The Bush v. Gore Court offered an ingenious but disingenuous response on this point: As a matter of Florida law, they said, ballots must be in by December 12. However, the only basis for that conclusion was a reference to the safe harbor in one of the Florida Supreme Court opinions in this case. The Florida Supreme Court indicated that it would be desirable, even expected, for the state’s electors to be determined by that date, but it in no way said that this was required or trumps the value of more accurate results reflected in a recount. Even Professor Michael McConnell, a conservative who approved the other aspects of the U.S. Supreme Court’s opinion, rejected the Court’s decision to stop the counting based on the safe harbor as a deadline.¹⁰⁰

The depressing irony is that the alleged safe harbor requirement was the single point about which the U.S. Supreme Court deferred to the Florida Supreme Court’s interpretation of Florida law—deferring to something the five conservative justices conjured up and used as a basis for defeating the central contentions of the Florida Supreme Court: that Gore and Florida voters were entitled to a recount and that such a recount could and should take place.¹⁰¹ Again, the U.S. Court could have followed the usual path and remanded the case to the Florida Supreme Court to determine whether, under Florida law, December 12 is indeed a decisive date. But the U.S. Supreme Court wasn’t taking any chances.

In this connection, the five conservative Justices made another staggering statement. Noting that Justices Breyer and Souter agreed with them that the recounts violated equal protection, they stated that “the only disagreement is as to the remedy.”¹⁰² The only disagreement? As the macabre joke goes, “Besides that Mrs. Lincoln, how did you like the play?”

There was one additional egregious aspect to this disheartening business. One reason there was no time to complete recounts is that the Supreme Court, three days earlier, issued a stay halting the recounts. Such rare action requires the party seeking the stay to show that it would suffer “irreparable harm” absent such a stay. In other words, Bush had to show that if the recounts were allowed to continue, but later declared improper, it would be too late to undo the damage to him. But why? Assuming the recount led to an apparent Gore victory, the decision to undo the recount could have occurred before the Electoral College met, and certainly before Congress made the tally official. Bush would become president. What “irreparable” harm would he suffer?

In granting the stay, Justice Scalia offered two sources of such harm. First, if the recount proceeded, ballots might become “degraded,” thus distorting a later recount (in case the Court held that the first recount was invalid but a new one should proceed). This argument, which almost no one defended or repeated, does not pass the giggle test. Scalia’s slightly more serious argument was that, if the recount went forward and Gore appeared to win, but the recount was later declared invalid and Bush became president, this state of affairs risked “casting a cloud upon what [Bush] claims to be the legitimacy of the election.”¹⁰³

Invoking this capacious notion of irreparable harm, Scalia came close to admitting that he saw his role as protecting Bush’s political prospects. After all, and as Justice Stevens noted in his dissent from the stay, Scalia ignored the far greater and truly irreparable harm to Gore of stopping the recount when time was of the essence. As Stevens said (prophetically, as it turned out), granting the stay was “tantamount to a decision on the merits” favoring Bush.¹⁰⁴ For even if the Court later found that the recounts should proceed, there might be insufficient time for them—exactly what happened, albeit partly because the Court favored Bush in a second improbable respect, insisting that December 12 was the final day for recounts to be completed.

To be sure, the issuing of the stay turned out to be irrelevant to the outcome of the case. Had the stay not been issued, and the recounts continued from December 9 to 12, the Court’s equal protection ruling on December 12 would have invalidated some or all of the recounting. Thus, at least given the Court’s insistence on December 12 as the final deadline for votes to be submitted, there still would have been no time for the statewide recount. However, it is possible that Gore would have taken the lead in the interim, and the Court’s decision would then have seemed even more result-oriented than it did. As a matter of public relations, both Bush’s win and the Court itself might indeed be somewhat tainted. But, again, such concerns veer far from the traditional notion of irreparable harm. The stay protected Bush, and to a lesser extent the Court itself, but that was a problem rather than a solution.

While I believe that the Supreme Court’s handiwork in Bush v. Gore was outrageous, it does not follow that a manual recount made much sense. For one thing, even though the recount probably could have been completed by December 18, it seems unlikely that the six-day period would have sufficed for both sides to contest canvassing boards’ determinations, with recourse to the courts for adjudication of disputes.¹⁰⁵ That said, this decision should have been left to Florida courts. But a more compelling argument against recounts came from a statistician, John Allen Paulos, in a New York Times op-ed. Discerning the true winner in an election producing a virtual tie among 6 million voters is simply impossible, Paulos observed, akin to “measuring bacteria with a yardstick.”¹⁰⁶ And why stop at one recount when another would almost certainly produce a different count and quite possibly a different outcome? Or, as Florida’s Supreme Court chief justice Charles Wells put it (in a book thirteen years later), no matter how many times the votes were counted, “the margin of error was always going to be greater than the margin of victory.”¹⁰⁷

A media consortium later examined the ballots statewide and determined that the real winner was . . . it depends. Under certain standards for counting votes, Bush would have won; under other standards, Gore. In almost all scenarios, the margin was ridiculously tiny. And, of course, actual recounts would have been undertaken by different people in different circumstances from the no-pressure counting by the media consortium.¹⁰⁸

After the consortium made public its findings, supporters of both candidates again claimed victory, but the real truth was this: We have no idea which candidate received more votes in Florida. Whatever statewide standard became adopted would have been arbitrary and yet decisive. In the end, we may have been better off sticking to the first result—the Election Day tally modified by the automatic machine recount and inclusion of absentee ballots from overseas. That was the only one that was determined before canvassing board members became involved, and made subjective decisions knowing that the entire presidential election stood in the balance.

In seeking a solution to future presidential election crises, we must keep in mind the numerous phenomena that can interfere with a fair outcome. Florida in 2000 displayed many. We’ve already alluded to a few—poorly designed ballots and indirect voter suppression—that weren’t the focus of the litigation over the election. We can add a complaint waged by Bush supporters that also did not lend itself to a remedy. When the networks originally called the state for Gore, polls remained open in the state’s so-called panhandle—Republican territory. Conceivably, the network’s projection discouraged would-be Bush voters from showing up to vote.

Additional issues arose from the absentee-ballot process. First, evidence established that some local officials responded differently to Republican and Democratic voters who applied for absentees.¹⁰⁹ Second, some 680 absentee ballots, some from members of the military abroad, did not comply with Florida law. Many were not postmarked or dated and signed by Election Day, or failed to meet some other requirement such as the signature of a witness. However, Florida law, as interpreted by its courts, requires only “substantial compliance” with such rules. For public relations reasons (it looks bad to exclude votes from soldiers), Gore chose not to contest those votes, even though Bush received a vastly disproportionate number of them. We find here another reminder of the impossibility of determining the “real winner” when a large state like Florida produces a virtual tie.

Another major lesson from the 2000 election concerns the Supreme Court’s regrettable involvement. Even if the Court arrived at the correct decision in stopping the recounts, it did so for the wrong reasons, calling to mind T.S. Eliot’s aphorism that “the greatest treason” consists of “the right deed for the wrong reason.”¹¹⁰ We do well to dwell on the wrong reasons for the Court’s Bush v. Gore decision, because doing so reinforces a crucial truth connecting the 2000 presidential election to its 1876 precursor: A partisan court deciding elections is no better than a partisan ad hoc commission—or partisan officials of any kind.”¹¹¹

The Supreme Court recognized the perils of getting involved, noting defensively that resolving the dispute was its “unsought responsibility.”¹¹² This was an odd remark. The Court never seeks responsibility to resolve a dispute, because it has no authority to do so: It cannot become involved in a case absent a party’s legal filing invoking the Court’s jurisdiction. Moreover, while Bush asked the Court to take the case, it easily could have declined to do so. The Court refuses to hear most cases, and nothing about this case required that it be taken. Indeed, as many commentators have noted, the case arguably fell within the “political question” doctrine under which courts decline to decide a case because Congress and/or the president is better situated to resolve the matter.¹¹³

Had the Supreme Court stayed out, and Bush won after the recounts, questions of his (and the Court’s) legitimacy would have been avoided. Had Gore won, in all likelihood the Republican-controlled Florida legislature would have intervened. If it did so, and the result was competing sets of electors sent to Congress, the winner would have been determined by the United States Congress (the body charged with counting and recording electoral votes). The Florida legislature and U.S. Congress are accountable to voters.¹¹⁴ How ironic that the Supreme Court’s decision to take the case in the first place, and then to resolve it rather than remand it to Florida to do so, was made by conservative justices who, as a matter of judicial philosophy, usually insist that courts defer to the democratic processes. Moreover, had the Florida legislature or U.S. Congress acted unconstitutionally, the Court could have intervened then. To short-circuit the process served Bush’s short-term interests but arguably harmed the Court and country, and certainly veered from the philosophy of those who imposed this resolution.

The Court’s seemingly gratuitous plea of “unsought responsibility” reflected its accurate anticipation that it would be accused of handing Bush the presidency. To take one of numerous examples, The New Republic titled its cover story on the case “The Supreme Court Commits Suicide.”¹¹⁵ The Court survived, but Justice Stevens’s dissent captured the cost of its intervention: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”¹¹⁶

The Court’s costly involvement illuminates the larger point that we still lack a fruitful mechanism for deciding disputed presidential elections. In 1876, the Supreme Court indirectly determined that Hayes was the winner when Justice Bradley cast the deciding vote on the ad hoc commission; in 2000, the Court made the choice more directly. In each case, the losing side justifiably felt that it had been deprived of a fair shake. It might be different if Supreme Court justices were considered truly impartial. But they aren’t, and, in part because of cases like Bush v. Gore, they won’t be any time soon. The almost circular reasoning here actually makes sense: If we want to promote the legitimacy of both the Supreme Court and the White House, we should not allow the Court to pick the president.¹¹⁷

One final irony warrants mention, because it, too, underscores the inadequacy of current procedures for resolving disputed elections. Suppose Al Gore had not conceded, but instead followed the advice of some of his lawyers and petitioned the Florida Supreme Court to act, following the U.S. Supreme Court decision holding that there was insufficient time to conduct the recount. Imagine that the Florida Supreme Court held that the U.S. Supreme Court misread its interpretation of state law, and that recounts could continue until December 18. Now suppose that recounts proceeded and Gore won. As occurred in 1876, when Congress met to finalize the results, it would have had in its hands two competing certifications of Florida’s electors. The person constitutionally authorized to open the certificates, and perhaps responsible for resolving disputes, is the president of the Senate—meaning the vice president of the United States. Which was . . . Al Gore.

That would have been just one more wrinkle in an election that taught us how many problems can afflict an election. The issues that affected Florida are worth recapping. Before a single ballot was cast, voter suppression may have compromised the legitimacy of the election. On Election Day, a poorly designed ballot led a few thousand voters to cast a vote contrary to their intentions. Numerous absentee ballots did not conform to statutory standards. Many thousands of voters were effectively disenfranchised when, through some combination of their own negligence and the failure of machines, their vote was not counted. This problem could have been remedied by a manual recount, but such a recount was itself fraught with problems, including: 1) ambiguity in the state’s election code concerning the necessity, timing, and/or scope of any recount; 2) absence of a statewide standard for recounts; and 3) disagreement over whether that disparity violated the U.S. Constitution. These and other complex issues occupied state and federal courts, which were hamstrung by suspicion of bias and the need to act hastily.

By fluke, all of these things came together in a state that happened to be tied and determinative of the national election outcome. We can be confident that we will not again experience anything quite like Florida 2000. But in terms of all the circumstances that can complicate presidential elections, Florida was more warning than outlier. As Professor Richard Epstein says, Florida “highlighted this soft underbelly of American elections, just as it threw into high relief the peculiar operations of our electoral college.”¹¹⁸

Of the countless commentaries about Bush v. Gore, perhaps the least contestable summary was supplied by Yale Law School Professor Stephen Carter:

The one thing of which I am absolutely sure is that had Gore—rather than Bush—won the second count, only to face a Florida Supreme Court order for a third, it would have been the Gore campaign that appealed to the Supreme Court to intervene, and the Bush campaign arguing feverishly in favor of letting the state’s process go forward. No principle was involved on either side, except the principle that says my guy ought to win.¹¹⁹

Alas, Carter’s observation applies with equal force to many of the judges as well as the lawyers, not to mention many members of the media and the general public. That no one can be trusted to rise above self-interest in such matters is one of the crucial lessons of Bush v. Gore.

The almost universal displeasure with the way things played out in the thirty-six days after Election Day 2000 led to widespread call for reform. Private groups created a bipartisan National Commission on Federal Election Reform, chaired by ex-presidents Ford and Carter, to make recommendations. The commission’s report captured the global nature of the problem: “Everyone who observed the 2000 election crisis was struck by the sheer unreadiness of every part of the system to deal with a close election.”¹²⁰ The commission’s recommendations spurred Congress to enact the Help America Vote Act (HAVA), which, among other things, prohibited punch-card voting (no more hanging chads!), set forth requirements for all voting systems, provided funding to replace outdated machines, mandated that “provisional ballots” be given to voters whose eligibility is questioned at the polls, and established an Election Assistance Commission. President Bush signed the measure into law in 2002.

Despite the authors’ claim that the report’s recommendations solve “most of the problems that came into national view” in 2000, and despite the report’s reassuring title—“To Assure Pride and Confidence in the Electoral Process”—HAVA does little to prevent future mishaps. Indeed, as elections law expert Professor Edward Foley shrewdly observed, it could have made things worse in the very next presidential election. In 2004, the entire election once again hinged on a single exceptionally close state (Ohio). Not close enough, it turned out, to require a recount and threaten a reprise of 2000. But, as Professor Foley pointed out, had Ohio been a little closer, HAVA would have made things more rather than less chaotic: “The provisional ballots that Congress in HAVA had just mandated . . . would have been the obvious target of opportunity for eager litigators waiting to pounce.”¹²¹

There were more than 158,000 such ballots in Ohio, so any fight over them would have been protracted. But perhaps the key word in Foley’s analysis is “litigators.” HAVA did nothing to keep presidential elections out of court, nor to reduce the time pressure that courts (and canvassing boards tasked with recounts) will operate under. Professor Foley, again: “Ohio was a near-miss scare, akin to the doomsday scenario that comes frighteningly close. . . . [Had Ohio been a little closer] there would have been litigation in both state and federal courts over whether or not to count particular provisional ballots, and the U.S. Supreme Court would have been asked to weigh in. One need not concoct hypotheticals to realize what a nightmare it would have been.”¹²²

The other major criticism of HAVA concerns an error of omission. As its title—Help America Vote Act—implies, the legislation focused on making elections smoother and fairer, which could reduce the likelihood of a disputed election. But HAVA did nothing to assist in the resolution of disputed elections that do occur. In other words, it did not provide the means of preventing disputes from morphing into crises à la 1876 and 2000.

Significant action should be taken to reduce the vulnerabilities of our presidential elections before the next crisis. I propose such measures in the final two chapters.