2000: The Year the Courts Decided the Election


On November 7, 2000, American voters went to the polls to elect the 43rd president of the United States.  Ritualistically, the nation watched that evening for the election returns.  The tallies for Democrat Albert Gore and Republican George W. Bush teetered in the makings of a dead heat.  It soon became obvious that Florida would be the deciding factor.  Exit polling in the state showed Gore as the projected winner.  So, at 7:49 P.M., NBC was the first station to forecast Gore as the winner of the state and the general election, with the other stations soon following suit.  As the evening gave way to the night, the state was put back up for grabs and then landed in the Bush column.  In the early hours of the morning, the state was once again listed as undecided before finally having Bush hold a razor-thin advantage.

Florida law in this matter provided some odd provisions for closure.  First, an automatic recount is invoked when elections are close.  This requires no intervention or agreement from political bodies but is rather part of the process of counting the votes.  Then there is a one-week protest phase before the vote is certified by Florida Secretary of State.  During this phase, candidates may protest to each county where they have a dispute.  After certification begins the contest phase, a legal proceeding in court that can result in ineligible votes being thrown out or a recount being ordered.  Here again, candidates are contesting the tallies of the specific counties where they feel inadequacies.

The narrow margin of victory triggered, by Florida statute, an automatic recount.  After the recount, an even closer margin declared Bush as the winner.  Gore refused to concede the election and proceeded with protests to specific counties.  This sparked a Bush protest in federal court to stop the recounts.  Soon both Florida state and United States federal courts were tied up with contests ranging from extension of deadlines to the method of recounts to the actual legality of proceeding with the counting of ballots.  It looked as if the country would not have a president in the normal time frame it had come to expect.  As then-President Bill Clinton said, “The people of America have spoken.  It’ll just take us some time to figure out exactly what they said.”

In this tightly held race, every action was followed by a lawsuit.  When canvassing boards did recounts, the Bush team lobbied to stop them.  When these boards stopped their recounts, the Gore team lobbied to have them restarted.   With the Florida statute vesting so much discretion in the hands of the canvassing boards and Secretary of State Katherine Harris, the methods and legality of the recounts came into question.  Also, with so much dispute over legalities, it was improbable that a concrete, much less impartial, decision could be made by the officials held by the two parties contending for the election.  The only recourse seemed to be to leave the battles to the respective legal teams.  In such a case, it is unlikely that a resolution could have been reached without intervention of the courts.

A natural question that arises in this scenario pertains to whether the courts are the proper forum for election disputes.  The matter of the Florida courts’ involvement was a natural proliferation of Florida statute.  Under Florida law, any candidate can file protest, any voter can bring a contest lawsuit over an election for public office, and any taxpayer can bring a lawsuit in a referendum.  The right of the courts to review these matters is an accepted manifestation of our democratic process.  The emergence of the issues in the courts was the only recourse for issues of contention.

Now that the battle was on the legal front, every decision made by the lower courts was appealed to higher courts.  When the Florida Supreme Court extended the deadline for reporting election results, the federal judiciary’s head turned.  The Supreme Court was soon brought into the mix and asked to comment on the issues raised by the Florida Supreme Court.  It handily accepted to review the case on a fast track.  At first, the U.S. Supreme Court simply asked for an explanation of the Florida Supreme Court’s ruling.  But when this state court did not comply, the U.S. Supreme Court found it necessary to cast final judgement on the issue.

The issues bringing in U.S. Supreme Court had to do with Article 2 of the Constitution and, more loosely, on the equal protection clause.  In Article 2, Section 1, Clause 2 of the United State Constitution, the states are granted the right to appoint presidential electors in the manner directed by the state legislatures.   In Florida this is done through a popular election, as in all other states, followed by the possibility of protests and contests.  When the Florida Supreme Court decided to extend the deadline for vote certification, the U.S. Supreme Court saw a possible violation of this “manner directed” clause.  The Supreme Court wrote that the Constitution vests the manner of appointment of presidential electors to the legislature and not the courts.  The Court saw that the Florida legislature intended to meet the safe harbor clause provided in federal statute by setting a stringent deadline for certification.  Therefore, the courts cannot rewrite law by extending deadlines for certification.  Furthermore, an issue of equal protection was presented.  In the opinion of the U.S. Supreme Court, when a singular method of recounts was not clearly stated by the Florida Supreme Court, the varying methods employed by the different counties violated the equal protection of those votes.

When the Florida Supreme Court made its decision change the Florida statute on the method of garnering electors, the involvement of the United States Supreme Court was inevitable.  The state court made a ruling strictly violating the Constitution and could have started a precedent for other state courts to similarly act.  In this instance, the U.S. Supreme Court’s intervention was both necessary and warranted.  Rather than being a Constitutional crisis, it was a violation that was specifically prohibited.

Outside of the legalities involved with the propagation of these issues in the judicial branch, the political culpability also plays a part.  Elections are essentially a political machination.  To discuss an election without involving its political aspect would be incomplete.  Several scenarios could have presented themselves without the courts involvement.  Most of these are politically unpopular.

One scenario might have been for two slates of Florida electors to show up.   Both these electors would try to cast votes for the Presidency.  In such a situation the Constitution provides no clear-cut resolution.  It provides no manner for which the votes are counted much less the oddity of multiple slates of electors.  The United States Congress would be forced to make a high-profile decision that disenfranchised rather than created constituencies.  Politically, the members of Congress prefer the courts to make the decision in such issues.  With Supreme Court judges holding lifetime appointments, the threat of public scrutiny does not extend to the ballot box.

Another scenario would be for the Florida State Legislature to choose the electors to meet the safe harbor clause provided in federal statute.  Once again, this provides an unpopular vestment of authority in a branch that’s popularly elected.  Although legal, it is common knowledge that the right to choose electors, once given to the people, is not a right easily given up.

Some political pundits would make the argument that the Court’s distance from the popular will is precisely why it does not belong in decisions about a popular election for the Presidency.  However, the Court is not completely separated from popular will.  As the Court stated in Roe v. Wade, “The Court must take care to speak and act in ways that allow people to accept its decisions…as grounded truly in principle, not as compromises with social and political pressures.”  While being separated from the immediate will of the people, the Court has no method of execution without agreement from the executive and legislative bodies, which are both elected by the people.  More importantly, the Court has limited its decisions to issues of constitutionality and legality rather than selecting a victor.

However, the decisions set forth by the different courts begin to test the definition of an impartial jury.  The courts in Florida, the majority being liberal, handed down decisions seeming to favor the Democratic candidate.  The United States Supreme Court, with its conservative slant, wrote decisions appearing to be line with the Republican candidates.  A quite convincing argument can be made that decisions were made based on the political leanings of the judges.  Further, allegations were made as to a conflict of interest with Justice Scalia stemming from his son working for the law firm that employed Bush’s council.  The allegations were quite unfounded, as Scalia’s leanings would have produced a similar opinion if his son were council for Gore.  However, the difference between a political judgement and a judgement based in political leanings is a primary one.  A well-founded decision will rely on the beliefs and opinions of its members without seeking political ends.  Being equitable in judgement lies with making judgements based on facts presented rather than outcomes.  Without this, the court seems no more than an extension of the political bodies that employ it.

Further controversy arises in the specificity of the Supreme Court’s final decision.  By writing “Our consideration is limited to the present circumstance, for the problem of equal protection in election processes generally present many complexities,” the court limited itself to making a ruling on the present case rather than enacting a more robust precedent.  Perhaps the court should have limited itself to an Article 2 ruling, but this goes beyond the argument of whether its involvement was necessary.   However, perhaps from the Court’s perspective, if it were able to avoid the issue completely, it would.  It was in essence forced into a situation it could not overlook.

From the beginnings of government, the judiciary has been the arbitrator for disputes ranging from personal to political.  It is in this branch that clarification and acuteness to statute become clear.  It is in this branch that law is interpreted and applied to the anomalies garnered in the commonwealth.  It is in this branch that decisions are made by impartial justices on partial issues.

In an election that was fought well after the ballots closed, the Supreme Court’s decision was the final turning point in this nation’s unbearably close election.  As Gore said in his concession speech, “Neither he (Bush) nor I anticipated this long and difficult road.  Certainly, neither of us wanted it to happen.  Yet it came, and now it has ended. Resolved, as it must be resolved, through the honored institutions of our democracy.  Let there be no doubt, while I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College.”  And so it has come to pass.  The courts have handed down a judgement that permitted closure and we are granted a 43rd President of these United States.

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