Volume 29, Number 2


INTRODUCTION TO THE LAW OF PRESIDENTIAL ELECTIONS: ISSUES IN THE WAKE OF FLORIDA 2000

Reubin O’D. Askew

In November and December 2000, the country focused its white-hot gaze at our state. National media, political pundits, and lawyers poured into Tallahassee as one of American history’s momentous events unfolded. Although the stakes were high and the debate was often heated, Florida’s three governmental branches helped lead the nation to a peaceful resolution of the closest presidential contest in its history.
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BUSH V. GORE AS AN EQUAL PROTECTION CASE

Richard Briffault

In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote—that is, ballots that vote-counting machinery had found contained no indication of a vote for President—which the Florida Supreme Court had ordered to determine the winner of Florida’s vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court’s failure to assure consistency between and within Florida’s counties in the determination of whether particular undervote ballots constitute legally valid votes.
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BUSH V. GORE AND THE FUTURE OF EQUAL PROTECTION LAW IN ELECTIONS

Richard L. Hasen

Before the recent Florida controversy, co-authors of the only two election law casebooks drew a distinction between the “big picture” issues of election law—such as representation, the nature of political equality, the role of money in politics—and the “nuts-and-bolts” of election law. The conventional wisdom was that the former was more important (and no doubt more interesting) to study than the latter.
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NEW WINE IN OLD BOTTLES: A COMMENT ON RICHARD HASEN’S AND RICHARD BRIFFAULT’S ESSAYS ON BUSH V. GORE

Heather K. Gerken

The conventional wisdom in the wake of Bush v. Gore was that the decision represented a significant departure from prior equal protection jurisprudence, and the contributions by Richard Briffault and Rick Hasen to this symposium provide confirmation of that view. I want to make two points in response to their fine essays. First, it is a mistake to try to fit Bush v. Gore into existing equal protection frameworks. As I explain in Part I, Bush v. Gore is best understood as a new type of equal protection claim. On one reading, it addresses broad structural concerns rather than conventional individual harms.
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COUNTS, RECOUNTS, AND ELECTION CONTESTS: LESSONS FROM THE FLORIDA PRESIDENTIAL ELECTION

Steve Bickerstaff

The thirty-six days following the November 7, 2000, presidential election was an amazing period in the legal and political history of the United States. Lawyers, judges, and election officials in Florida found themselves participating sometimes unwillingly in a national media spectacle. Some observers saw this postelection turmoil in Florida as a crisis for this country. Others viewed it as an international embarrassment. The outcome brought elation for many and cynicism from others who explained the result as a triumph of power and politics over justice and the will of the people.
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A PLACE AT THE TABLE: BUSH V. GORE THROUGH THE LENS OF RACE

Spencer Overton

In the 2000 presidential election, African Americans made up only 16% of the voting population in Florida but cast 54% of the ballots rejected in automatic machine counts (“machine-rejected ballots”). Across the state, automatic machines rejected 14.4% of the ballots cast by African Americans, but only 1.6% of the ballots cast by others. Racial disparities appeared even when the same voting technology was used. For example, counting machines rejected punch card ballots in predominantly African-American precincts in Miami-Dade County at twice the rate they rejected ballots in predominantly Latino precincts, and four times the rate they rejected ballots in predominantly white precincts.
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JUDGING JUDGING: THE PROBLEM OF SECONDGUESSING STATE JUDGES’ INTERPRETATION OF STATE LAW IN BUSH V. GORE

Harold J. Krent

That the election for President in 2000 was decided by a court surprised everyone. That the election was decided by a federal court was even more surprising. But, the fact that three Justices supported that decision based on second-guessing a state court’s construction of state law possibly was more astonishing still.
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DISAPPEARING DEMOCRACY: HOW BUSH V. GORE UNDERMINED THE FEDERAL RIGHT TO VOTE FOR PRESIDENTIAL ELECTORS

Peter M. Shane

Imagine, as you may already wish, that it is 2004. Despite flickers of opposition from Senator John McCain and former Nebraska Senator Robert Kerrey, George W. Bush and Al Gore appear to have sown up their respective renominations by mid-spring. In some state with, say, twenty-five electors, the Democratic legislature and the Democratic governor are worried. Polls predict a razor-thin Gore victory in the state, but, if voting machines malfunction or if inclement weather depresses the senior citizen vote, the state could be lost to Bush. No one wants a repeat of Florida’s 2000 travails. The solution? The legislature enacts a bill, eagerly signed by the Governor, providing that the state legislature itself, by a majority vote of each house, shall choose the state’s electors in 2004 for President and Vice President of the United States.
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UNDULY PARTIAL: THE SUPREME COURT AND THE FOURTEENTH AMENDMENT IN BUSH V. GORE

Pamela S. Karlan

An implicit moral of Peter Shane’s insightful Disappearing Democracy is that Laurence Tribe made a key strategic error in the first sentence of his oral argument in Bush v. Palm Beach County Canvassing Board by directing the Supreme Court’s attention away from the Due Process Clause. Rather than simply dismissing Bush’s due process arguments, Tribe should have argued that both substantive and procedural due process in fact required the Florida Supreme Court to protect the right of every Florida voter to have his or her vote counted. The central message of Disappearing Democracy is that the due process problems with stopping the Florida recounts were far more serious than any equal protection problem with letting them continue.
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THE PRESIDENTIAL ELECTION DISPUTE, THE POLITICAL QUESTION DOCTRINE, AND THE FOURTEENTH AMENDMENT: A REPLY TO PROFESSORS KRENT AND SHANE

Robert J. Pushaw, Jr.

Like millions of Americans, my wife Trish and I remained glued to our televisions throughout the 2000 presidential election crisis in Florida. Because Trish is not an attorney, she frequently asked for my legal opinion on the various judicial proceedings. For instance, she believed that the United States Supreme Court was so “peeved at the shenanigans” that it would intervene. I assured her, based upon my extensive study of justiciability, that the Justices would decline jurisdiction. I also confidently predicted that, in the unlikely event the Court reached the merits, it could not possibly hold that the Equal Protection Clause required states to administer their elections without discrepancies, because such inconsistencies are one price we pay for our federal system.
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THE REGULATORY ROLE OF STATE CONSTITUTIONAL STRUCTURAL CONSTRAINTS IN PRESIDENTIAL ELECTIONS

James A. Gardner

In our federal system of government, state officials are normally understood to draw their legitimate authority from affirmative grants of power under their state’s constitution. Just as it grants official power, however, a state constitution is normally understood to limit and condition it as well in ways that conclusively bind state actors. In Bush v. Palm Beach County Canvassing Board (Bush I) and Bush v. Gore (Bush II), the U.S. Supreme Court unjustifiably departed from this model, a model drawn from salutary principles of federalism that play a significant role in the protection of popular liberty.
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CONCEPTIONS AND MISCONCEPTIONS OF STATE CONSTITUTIONAL LAW IN BUSH V. GORE

Robert A. Schapiro

Although the United States Supreme Court’s disposition of Bush v. Gore (Bush II) ultimately turned on the Equal Protection Clause of the Fourteenth Amendment, an alternative theory, based on Article II of the United States Constitution, has garnered significant academic support in the year following the decision. The Article II theory was suggested in the initial per curiam opinion (Bush I) and in the questions of the Justices during the oral arguments, and was fully embraced by the concurrence in Bush II, which was written by Chief Justice Rehnquist and joined by Justices Scalia and Thomas. The reliance on Article II entailed a distinctive vision of the role of state constitutions in the state governmental process and of the place of federal courts in overseeing that role. The concurrence explicitly adopted the view that the Constitution provided federal constraints on the authority of state courts to construe state procedures governing presidential elections. Under this conception, the concurrence insisted on a central role for federal courts in policing the relationship between state courts and state legislatures.
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JUDGING “NEW LAW” IN ELECTION DISPUTES

Richard H. Pildes

In disputed presidential and other elections, what is the appropriate relationship between state law and state institutions versus national law and national institutions? What does the constitutional law of elections, prior to the 2000 presidential election, tell us about how that relationship has long been legally understood? This broader jurisprudence of elections offers a more general, external stance from which disputes over this relationship surrounding Bush v. Gore can be helpfully assessed.
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HISTORY OF THE ARTICLE II INDEPENDENT STATE LEGISLATURE DOCTRINE

Hayward H. Smith

In Bush v. Palm Beach County Canvassing Board (Bush I), the Supreme Court suggested that when state legislatures direct the manner of appointing presidential electors under Article II, Section 1, they must remain free from state constitutional limitations. In Bush v. Gore (Bush II), three Justices argued that Article II legislatures must remain free from obviously incorrect state court statutory interpretation. Since then, several defenders of the Court’s Election 2000 decisions have embraced this idea that Article II grants to state legislatures a degree of independence that they do not otherwise enjoy. This Comment investigates whether there is any historical basis for such an Article II “independent state legislature” doctrine, a task entirely neglected by the Court in Bush I, the concurrence in Bush II, and all but one of the commentators. It concludes that the founding generation’s original understanding of Article II did not include special solicitude toward state legislatures. Moreover, the doctrine’s actual origins in the Civil War Era and its subsequent history reveal that it has never been anything but a trifle which politicians and courts call upon to lend legal weight to sentiments otherwise unrecognized by the law.
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THE SUPREME COURT, BUSH V. GORE, AND ROUGH JUSTICE

William P. Marshall

Bush v. Gore is not defensible doctrinally. The opinion is unsound on a number of grounds, including equal protection, standing, political question, and remedies. Indeed, the lack of doctrinal foundation in the opinion is so transparent that even the case’s few defenders tend to rest on the grounds offered by the concurrence rather than the majority.
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TRYING TO MAKE PEACE WITH BUSH V. GORE

Richard D. Friedman

The Supreme Court’s decision in Bush v. Gore, shutting down the recounts of Florida’s vote in the 2000 presidential election and effectively awarding the election to George W. Bush, has struck many observers, including myself, as outrageous. Decisions of the Supreme Court should be more than mere reflections of ideological or partisan preference thinly camouflaged behind legalistic language. It would therefore be pleasant to be able to believe that they are more than that. Accordingly, Judge Richard Posner’s analysis, in which he defends the result reached by the Court—though not the path by which it got there—is particularly welcome. Though Judge Posner is a person of conservative political orientation, he is also fiercely independent-minded. Given that he sees merit in the Bush decision, then perhaps we can give more credence to the proposition that—whether ultimately we agree with the decision or not—it was a plausible response to a difficult situation, rather than a flagrant act of judicial usurpation.
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BUSH V. GORE: REPLY TO FRIEDMAN

Richard A. Posner

The litigation that followed the election deadlock in Florida last year and that culminated in the Supreme Court’s decision in Bush v. Gore has triggered an avalanche of scholarly commentary, almost all highly critical of the decision. Professor Friedman’s article is one of the most scholarly and temperate of the articles that I have read which criticize the decision.

I appreciate the force of his criticisms of my book, which defends the decision, though not the reasoning by which the majority of the Court reached it. I will respond to these criticisms in this brief comment, following essentially the order of discussion in his article. The comment is not self-contained but presupposes familiarity both with my book and with Friedman’s article.

I want at the outset to dispel any impression which my comment may create that I consider my position on the merits of Bush v. Gore “right” and Professor Friedman’s “wrong.” Such terms are inapplicable to the most difficult constitutional cases, of which Bush v. Gore (I think Friedman agrees) is one. I go no further than to claim that the decision (not, to repeat, the majority opinion) was reasonable. I also agree with much of Friedman’s analysis, but will not discuss the areas of agreement.
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THE ELECTORAL COLLEGE, THE RIGHT TO VOTE, AND OUR FEDERALISM: A COMMENT ON A LASTING INSTITUTION

Luis Fuentes-Rohwer And Guy-Uriel Charles

A decade before the 2000 presidential elections, in a chapter ominously entitled The Coming Constitutional Crisis, David Abbott and James Levine admonished that the Electoral College would soon produce a “wrong winner”—a President who wins the electoral count yet loses the popular vote. Whenever this happened, they predicted, the Presidency would face a profound crisis of legitimacy. Among critics of the College, the possibility that the College would produce a “wrong winner” has been held, like the sword of Damocles, over the heads of the current system’s supporters, who are too enamored of the Framers’ invention to appreciate the impending doom.
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WHO’S AFRAID OF THE TWELFTH AMENDMENT?

Sanford Levinson And Ernest A. Young

The Twelfth Amendment is a Rodney Dangerfield of the Constitution: it gets no respect. Indeed, it gets little discernible attention at all. The Amendment is rarely the subject of scholarly analysis or classroom discussion and never, prior to this symposium, the focus of an academic panel. Only professors of constitutional law—and probably not all of them—could even identify the Amendment’s subject matter, at least prior to the recent unpleasantness.
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INSTITUTIONAL LESSONS FROM THE 2000 PRESIDENTIAL ELECTION

Elizabeth Garrett

Although scholarly and media attention in the wake of the presidential election of 2000 has focused primarily on its unusual aspects, such extraordinary events also lead us to analyze aspects of our legal and political systems that we tend to take for granted when elections run smoothly. Among the latter set of lessons that can be drawn from the contest between George W. Bush and Al Gore are conclusions about the dynamic and complex relationships among our institutions of governance. In this Essay, I will discuss two related issues of institutional design and institutional choice that have applicability beyond the most recent presidential contest.
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POPULAR SOVEREIGNTY AND THE ELECTORAL COLLEGE

John O. Mcginnis

In this brief Comment I want to consider the relation of popular sovereignty to the Electoral College. First, I consider the often expressed claim that George W. Bush’s failure to receive a plurality of the popular vote undermines his legitimacy as President. I completely reject this notion: because presidential candidates attempt to win a majority of the Electoral College, not the popular vote, the popular vote totals are epiphenomenal and, in the close elections where the popular vote may diverge from the Electoral College result, do not undermine the electoral legitimacy of a candidate who won through playing by the rules. Next I consider whether the failure of the United States to use direct election undermines or in any way vitiates the political legitimacy of its system of government. I reject this claim as well on several grounds. First, given the fickleness and inattention of voters, all we can expect an electoral system to do is to make certain that a candidate has substantial popular support. We cannot expect an election to measure the popular will in any transcendental sense, if by that we mean a stable will of a national majority. Given this fact, it makes sense for an electoral system to have other goals, like assuring a clear winner through minimizing the possibility of requiring a national recount. Second, even if it were possible to measure a stable majority, an electoral system designed to distill the will of a national majority would have a tendency to lead to notions of social democracy that are foreign to the American experience and are harmful to prosperity and liberty.
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THE ODD CONSEQUENCES OF TAKING BUSH V. GORE SERIOUSLY

Steven G. Gey

In the short time since the November 2000 presidential election, it has become commonplace in both academic and popular forums to deride the Supreme Court’s decisions in Bush v. Palm Beach County Canvassing Board and Bush v. Gore as—to put it bluntly— intellectually corrupt. The common theme of these attacks on the Court’s abrupt resolution of the 2000 presidential election is that the decisions were crassly political efforts to decide the election on behalf of the party favored by the five Justices who formed the Bush v. Gore majority. There is ample justification for this derisive response, in light of the way in which the Court aggressively reached out to decide a case that was by most measures unripe for Supreme Court review, and also in light of the weak constitutional doctrines relied upon by the majority.
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