Because of the nature of the election and the daily- if not hourly- twists and turns it took during the five weeks of counting and recounting votes, legal contests and arguments, appeals and more arguments, the media sought advice and information from legal pundits nearly 24 hours a day. Beginning late in November through the Supreme Court's final ruling on December 12, Cardozo professors were quoted and appeared on television every day from 6 a.m. right through the 11 p.m. news. Even several days after Gore's concession, Prof. Monroe Price appeared on a Sunday morning show to discuss, "Can George Bush lead after this election process?" The following articles and letters, which were edited for inclusion here, were among those that Cardozo professors wrote during this historical moment.
The US Supreme Court orders the Florida Supreme Court to clarify its ruling on the extended certification date.
The Florida Supreme Court orders an immediate manual recount of all ballots in the state where no vote for president was machine-recorded.
On Bush appeal, US Supreme Court halts the manual counting.
Lawyers file briefs with the Supreme Court.
US Supreme Court hears arguments.
Supreme Court overturns the Florida Supreme Court. Florida House votes to appoint electors for Mr. Bush.
Vice President Gore concedes.
Editor's Note: Election 2000 was not the first election that gripped
the public or whose outcome was disputed. The election of 1876 involved
an Electoral College controversy that political cartoonist Thomas Nast
illustrated in the pages of Harper's Weekly. The images used here are from
the Rutherford B. Hayes versus Samuel J. Tilden election and reflect some
of the parallels with our most recent election including Florida playing
a central role in the controversy, disputed election returns, and different
winners of the Electoral College and the popular vote. When the election
could not be called a month after it took place, Mr. Nast placed himself
at the center of his own cartoon, preparing his pencil for the work ahead.
The cartoons are published here courtesy of HarpWeek LLC, and all of those
that were published in Harper's Weekly during the election of 1876 can
be see on the World Wide Web at HarpWeek.com.
A Fine Moment for Federalism
Marci A. Hamilton, Thomas H. Lee Professor of Public Law
The 1000 Supreme Court's decision . . . is, at its heart, a tribute to the political restraint of the justices, and to their remarkable respect for the role of the states in our federal system. Indeed, [the] decision was perhaps the finest moment of federalism yet reached in this country's history.
The justices stood at a crucial point in history, at the apex of their potential influence, with the ability to grasp the power to determine the outcome of the election if they so chose. The media kept billing the Court's decision as though it were the endgame; the pollsters kept asking about it that way; and indeed, if the Court had simply held that the manual recounts were invalid, an endgame it would have been (checkmate: Bush).
But the justices chose unanimously to take another path, and to follow their entrenched rule of deferring to state supreme courts on the meaning of state law. Thus, they asked the Florida court- in a brief opinion and in moderate tones- to explain its decision to extend the deadline for certifying the election, in the context of the federal principles the Court laid out.
The opinion aimed to ensure that the Florida Supreme Court acted within its proper sphere, consistent with constitutional federalism. At the same time, it also exemplified the US Supreme Court's acting within its proper sphere, consistent with constitutional federalism. It made clear that overreaching- on either the state or the federal level- would not, and should not, occur.
Appeared on Findlaw.com and CNN.com
Driven by Politics
Peter Lushing, Professor of Law
To the Editor:
If the United States Supreme Court justices vote along ideological lines based on their view of federalism, it is understandable and historically in accord with how justices perform their work.
But for the five prevailing justices to be driven by politics to the extent that they are willing to disavow the states' rights ideology that their voting records reflect is disastrous to both the court and the country.
The public can now justifiably view the United States Supreme Court, and especially its majority, as a political clubhouse.
reprinted from The New York Times
A Just & Wise Action: Two simple principles of the Supreme Court Ruling
John O. McGinnis, Professor of Law
The Supreme Court's decision Tuesday [Dec. 12] will be read as long as our nation survives. In the short term, it is sure to be the subject of much abuse- but in the long run we can hope that it will be understood for what it is: a clearly reasoned judgment rooted in fundamental law that was also an act of statesmanship of high order.
Knowing that they would be attacked as political partisans by undoubted partisans, particularly in the press and the legal academy, the majority nevertheless followed the law and prevented a constitutional crisis. In a city where leaders often try to dodge accountability for major decisions, the justices accepted responsibility in full recognition of the consequences.
Commentators have already confused the public by suggesting that the decision was complex. In reality, it rested on two simple and lucid propositions: First: The recount ordered by the Florida Supreme Court violated the Equal Protection Clause of the Constitution because it lacked any assurance that two physically identical ballots would be counted alike.
Second: No constitutional recount could be finished by Dec. 12, the day the state court consistently read as the drop-dead date by which Florida law had contemplated resolving a presidential election.É
Finally, despite Justice Breyer's claim that no individual rights were involved in this case, individual rights were at its heart- the right of each voter to have hi 1000 s or her vote count equally. What is the court for, if not to resolve questions of individual rights claims when they are presented by a candidate who had himself been hauled into court against his will?
The alternative of judicial abnegation would not have served the country well. If the count had gone forward with constitutional infirmities, it would have been subject to subsequent challenge in the courts. Florida legislators would have named their own slate.
Instead of starting January with a Congress ready to address national problems, we would have started with a constitutional imbroglio created by a count that seven justices believed unconstitutional. The decision yesterday thus was not a reckless intervention by the court but a defensive act protecting political stability.
From Virgil's Aeneid to Shakespeare's Henry V, many of the great works of literature have focused on the burdens that leaders must assume. Good leaders must cast aside many personal considerations, particularly the desire for universal affection, because paradoxically that affection is often won at the expense of the public's well-being.
When the partisan bitterness of this season has long been forgotten, this decision may well be remembered as a just and wise action by leaders themselves worthy of celebration.
reprinted from the New York Post
The US elections, State by State
Edward A. Zelinsky, Professor of Law
At the moment, it indeed appears that Governor Bush will have a razor-thin victory in the electoral college, while Vice President Gore carried the popular vote. However, the implications of this discrepancy are more problematic than . . . [some] suggest.
On one level, the popular vote is an undeniable mathematical fact, derived by adding together the votes each presidential candidate receives in each of the state contests. However, on another level, the United States does not have any national popular vote since it actually has 51 separate elections, each conducted under its own rules. It is not clear whether the combined results of these separate state elections produce the same outcome as would a truly national contest held under one set of uniform procedures.
Consider, for example, the case of Oregon, which conducted its entire election by mail ballot. The vote was narrowly divided between Governor Bush and Vice President Gore, and had one of the highest participation rates in the United States. Suppose that Texas, a Bush stronghold, had used the Oregon system. Would the Texas voter participation rate have increased under the Oregon rules?É
We don't know . . . and can, at best, speculate. But without those answers, it is questionable whether we can add together the Texas and Oregon totals and call them a unified "popular vote."
Or consider the differences in state laws concerning absentee ballots. Some states effectively encourage such ballots; others do not, relegating the absentee ballot to its traditional role of permitting those unable to be physically present at the polls to vote. Again, without a uniform national standard for voting procedures, it is possible that the popular vote plurality actually reflects one candidate doing disproportionately better in the states with more liberal absentee voting rules.
When É elections are as close as was this presidential contest, comparing vote totals under different state electoral processes, if not quite comparing apples and oranges, is at least comparing oranges and tangerines.
Accordingly, we should not invest great normative weight in the concept of the popular vote, as it does not represent a natio 1000 nal total determined under uniform rules.
Reprinted from The Jerusalem Post
Voting Rights, Rules, and Equal Protection
Monroe E. Price, Joseph and Sadie Danciger Professor of Law
For most people reading the bombshell Supreme Court case of Bush v. Gore, what was extraordinary was its defining significance in ending the 2000 presidential election. My reaction was more personal, almost nostalgic. It was about a little-remembered decision and its lessons concerning continuity, judicial tradition, and the taming and absorption of radical new doctrine.
The almost forgotten case was Carrington v. Rash, decided by the Court in 1965, and it involved an unusual voting rights rule from Texas.
The Texas constitution had prohibited "any member of the Armed Forces of the United States" who moves his home to Texas during the course of his military duty from ever voting in any election in that state "so long as he or she is a member of the Armed Forces." The provision and its implementing regulations were designed to protect Texans from being swamped by military personnel at a base, particularly a base near a thinly populated town.
The challenge to the Texas rule came to the Supreme Court when I was a law clerk to Justice Potter Stewart, and after argument and the conference of the justices, the case was assigned to him to write for an almost unanimous Court. Justice Stewart, in a brief and characteristically elegant opinion, held the statute unconstitutional. The ground he used was similar to the one employed by seven of the Court's justices in the historic Florida case. It was the Equal Protection Clause. It all seemed so simple.
But, as a law clerk researching the questions, I had been amazed to discover that the Equal Protection Clause had never been invoked by the Supreme Court- or hardly any other court- in a similar circumstance, namely to hold unconstitutional state voting eligibility provisions. And I wasn't the only one to make this discovery.
The august, formidable, learned Justice John Harlan forcefully dissented. The fact that he was alone in dissent never detracted from his authoritative, thundering judicial voice. "Anyone not familiar with the provisions of the Fourteenth Amendment, the history of that Amendment, and the decisions of the Court in this constitutional area, would gather from today's opinion that it is an established constitutional tenet that state laws governing the qualifications of voters are subject to the limitations of the Equal Protection Clause. Yet any dispassionate survey of the past will reveal that the present decision is the first to so hold."
As Justice Harlan put it, commenting on the striking down of the Texas voting restrictions: "While I cannot express surprise over today's decision after the reapportionment cases, which though bound to follow I continue to believe are constitutionally indefensible, I can and do respectfully, but earnestly, record my protest against this further extension of federal judicial power into the political affairs of the States."
Now, the descendants of Justice Harlan, in Bush v. Gore, have enunciated as unproblematic what he considered to be heresy.
The justices of the per curiam decision in Bush v. Gore tried to hem in the radical implications of the constitutional doctrine they were announcing. In a sentence that will be the subject of hundreds if not thousands of cases and legislative inquiries, the Court said, famously, that it was no 1000 t deciding "whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." Instead, much more narrowly, it was "presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards." But there is a relevant lesson in Carrington v. Rash and the reapportionment cases before it. Great and radical doctrine, broad understandings of justice, cannot be easily cabined. Whether the Court stumbled, reached, or consciously entered the world of meticulous measuring of actual voting practices, the outer reaches of its decision-making can hardly be measured.
The little case of Carrington v. Rash, then, has been forgotten. But it is a distant ancestor of Bush v. Gore. Carrington newly empowered a few thousand soldiers at bases in Texas. Bush v. Gore will change voting practices throughout the land.
When "Interpretation" Becomes "Change"
Richard H. Weisberg, Walter Floersheimer Professor of Constitutional Law
An interesting outgrowth of our ongoing political process this year is a debate about the way words work. The predominating view still seems to be that the meaning of language is objective and can be grasped through an automatic response by listeners or readers. So, for example, the Florida Supreme Court needed only to read the State Legislature's statutory language. From there to explaining what the legislators meant involved, in many people's minds, a process no more complex than, say, a voting machine's reading of a ballot.
This "majority" view of the step from utterance to understanding was articulated by Joseph P. Klock, Jr., the secretary of state's attorney before Florida's high court. "But Justice Lewis," he argued, "there's just so much baggage the word 'interpretation' can carry on its back before it becomes more of a change than it is an interpretation." Capitalizing on the US Supreme Court's own skepticism about the way Florida's justices were explaining the voting procedures of that state, Mr. Klock seemed to be stating the obvious. A lawyer, especially, should know better. Many times in our history, the meaning of important words has shifted dramatically, and lawyers and judges are usually the responsible parties. About a century ago, for example, the phrase "equal protection" was interpreted to mean separate but equal. Did the Klocks of that era ever contemplate the 180* shift in meaning that finally occurred in Brown v. Board of Education?
When the Supreme Court decided that the Equal Protection Clause could not permit so-called "separate but equal" facilities, was it interpreting the clause or was it changing it? When the current conservative-leaning justices read the 10th and 11th Amendments to enhance States' rights against individuals attempting to sue under federal law, are they carrying too much linguistic baggage or are they merely doing their job of interpreting? And what about their own election-closure interpretation of the Equal Protection Clause itself; was this extraordinary stretch regarding the local standards for vote-counting "interpretation" or "change"?
Judges have the sober task of interpreting legislative (and sometimes constitutional) language. Those who accuse them of changing that language really mean that they do not agree with the interpretation. We should not let these advocates degrade the work of judges by mis-stating our common understanding of the way language works. And so the United States Supreme Court finally displayed its greatest cynicism in Bush v. Gore not so much by playing politics as by deliberately distorting the way judges work with words.
The Supreme Court in Real Time
Michael Herz, Professor of Law
The post-election legal proceedings had their moments of humor. The oral argument in Bush v. Gore may have produced the most guffaws as Joseph Klock struggled to correctly identify the Justices of the Supreme Court. But if one finds humor in the absurd, the comic highpoint came 34 hours later (34 hours!) when the Court released its decision and on-air reporters ludicrously attempted to understand, synthesize, and explain 65 pages of judicial exposition instantaneously. It was not for some time that reporters had the chance to read and digest the opinions and report what the Court had actually done.
In Bush v. Gore, unfortunately, the Court put itself in the role of the TV reporters who were fumbling in the dark rather than those who could read first and report later, in the clear light of day. The Court attempted the judicial equivalent of instantaneousness, operating in real time. The fiasco that resulted will not cause the Court irreparable harm (to use language with which the nation became familiar over that weekend), but it is a reminder of the importance of the Court keeping some distance from the disputes it decides. The conventional wisdom is that the Court's decision-making is enhanced by such distance- not least, by a temporal distance, a time lag between the relevant event or legislative or judicial decision and the Court's review of it.
Normally, a Supreme Court case involves events that occurred years ago, and legal issues that have percolated through the lower courts. Bush v. Gore was just the opposite, a mad dash. As a result, the Justices were shooting from the hip on extremely difficult legal issues that other judges had not considered. More important, by rushing into the thick of things, the Court did much to further the (well-founded) sense that it had become a purely political actor. Not only was it ruling on a political battle, it was a contemporaneous participant. The usual insulation and distance had evaporated.
In The Least Dangerous Branch, the late Professor Alexander Bickel wrote of the courts' advantage over the political branches in pursuing principle rather than policy:
[C]ourts have certain capacities for dealing with matters of principle that legislatures and executives do not possess. Judges have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of governmentÉ.
Their insulation and the marvelous mystery of time give courts the capacity to appeal to men's better natures, to call forth their aspirations, which may have been forgotten in the moment's hue and cry. This is what Justice Stone called the opportunity for 'the sober second thought.'
Bickel's account is both appealing and valid. It is also dismally inapplicable to the Court that decided Bush v. Gore, which was part of the hue and cry. Who knows what the election controversy will look like on sober second thought a year or two hence. This much is clear now, however: Bickel was right. The Court is well served by proceeding in judicial rather than real time.
"The Court attempted the judicial equivalent of instantaneousness, operating in real time." - Herz