The Legacy of Election 2000

George Bush won. But at what cost to the law? Two legal analysts offer differing assessments.

Constitutional litigation will return to normal, but the political battles are just getting started.

What is the moral of the Great Florida Recount? Bush supporters, whether devoted or tepid (I fall in the latter category), may be personally relieved that the outcome lined up with their votes. But partisan politics aside, we can learn larger lessons from this classic judicial brawl. One lesson is that tragedies and near tragedies develop one small step at a time. Each side is rightly and mightily distressed with the prior machinations of the other. Each is therefore emboldened to take the next small step. Each step prompts the next until we come to the brink of a constitutional crisis.

That's just what happened starting November 7, 2000. Most pundits thought Al Gore's prompt request for a hand recount in friendly precincts would prolong the election by perhaps another week. They were the same type of folks who in August 1914 thought that British troops would return home from France by Christmas. What the election optimists missed is that both sides of this close conflict deeply believed that they had right on their side.

That is the second lesson of Florida's long count. The prolonged grudge match between George W. Bush and AL Gore offers ample confirmation of the endurance of primal instincts in human affairs. In our over-intellectualized analysis of politics, we place too much emphasis on the word "political" and too little on the word "animal" in the phrase "political animal." Alas, nature's first maxim of survival is to avoid a fair fight when both sides run the risk of serious injury. Nature therefore codes all animals to hold their ground when right, and to slink away when wrong. That game plan works pretty well except when each side to a dispute thinks in moral terms and believes it is right. Then a battle royal ensues.

The mutual sense of being wronged intensified the conflict, as did the fact that each side needed to make only the kinds of arguments most congruent with its legal philosophy. Democrats take an expansive view of language and harbor a yen for social justice, while Republicans gravitate toward plain-meaning interpretations and the rigorous application of formal rules. Truth is, this contest would have been over sooner if the litigating position of each side had required it to embrace the legal philosophy congenial to the other. But instead, the striking correlation of their legal strategies to their deepest psychological predispositions goaded both sides to fight harder.

The initial Gore response was an irritated expression of disbelief at the large but confused "butterfly ballot" vote for Pat Buchanan in Palm Beach County. But since Democratic operatives had prepared this ballot (to make the print easier for seniors to read), the Gore people could not lash out at Republican misdeeds, nor rectify the error in court. They did, however, think that the Republicans owed them one on the recount, and thus were emboldened to pressure canvassing board officials in Broward and Miami-Dade counties to run a hand recount that paid ever-greater homage to dimpled chads.

Republicans reciprocated in kind because they had no remorse for having won Florida fair and square, notwithstanding Democratic blunders. They showed their true colors when Florida's Secretary of State Katherine Harris eagerly exercised her discretion to deny the contested counties a waiver of the one-week deadline established for recounts. After all, the initial review of the ballots in Broward and Palm Beach counties resulted in only about 2 percent of the "undervote" being converted into votes. Thereafter, the consistently more lax standards in Broward County converted dimpled chads into 567 net Gore votes. Palm Beach County followed a more erratic but conservative course, which in the end produced, depending on who is believed, between 176 and 215 net Gore votes.

Clearly the choice of standards mattered. To forestall such erratic behavior, what Harris should have done was first to allow more time to complete a recount, but then to insist that manual recounts did not change the standard for a valid vote, which at least required that light go through the hole. Instead she neglected to give any principled defense of her position, which made her vulnerable to attack. In fact, her legal arguments were strong: Florida election law requires an "error in tabulation" to trigger the hand recount, and the machines had worked just fine.

The Florida Supreme Court, however, was now poised to do a bit of high-stepping of its own. The state election law was poorly drafted. Yet it is best read to say that the canvassing boards had to present tallies to the secretary in a week, though leaving her with the power to extend the deadline. The Florida Supreme Court exploited the textual ambiguity to come up with a solution that was inconsistent with any plausible reading of the statute. In a good day's work, that court read "error in tabulation" to allow Gore to challenge the traditional standard for a valid vote. It brushed over the obvious statutory concern with finality in election disputes; it authorized highly subjective hand counts without any safeguards against favoritism and bias; and out of whole cloth it created its own new November 26, 2000, deadline for finishing the hand count.

The Republican faithful on and off the U.S. Supreme Court noted the obvious distortions of the statutory scheme. But they were faced with the same dilemma that had just sapped the legitimacy of the Florida Supreme Court: The higher a case goes in the judicial system, the narrower the grounds for review, and the stronger the arguments needed to sustain a reversal. The Florida Supreme Court did not meet that burden when it overturned the secretary of state, so the conservative five on the U.S. Supreme Court faced the next round of the ongoing realpolitik dilemma: Play the game straight at your level and lose to the machinations of the judges below, or stretch the law a bit at your level, if necessary, so as to undo their error with some judicial innovations of your own. The case had not gone far enough to stop all litigation in Florida cold, so a grumpy but unanimous U.S. Supreme Court asked for the Florida Supreme Court to explain itself--only to set the stage for a bigger fight next time round. Nine troubled justices retained peace without honor, through delay.

Back in Florida, business continued at a brisk pace. The canvassing boards in the key Florida counties all responded differently to the November 26, 2000, deadline. Broward finished its count and came up with a trove of over 500 new Gore votes. Miami-Dade called off its count, and Palm Beach County came within two hours of finishing its own recount. Harris, ever jealous of the prerogatives of her office, rejected the Palm Beach request for delay, and certified the Bush victory. That action promptly moved the case from its protest phase to its contest phase.

This move is larger in legal than popular estimation. A protest leads to more administrative work, but a contest requires a full-dress trial, complete with fact witnesses and cross-examination. The contest trial was held before Judge N. Sanders Sauls. who, consistent with the first Florida Supreme Court decision, found that the canvassing boards had not abused their discretion in the extended recount phase. He also found, more debatedly perhaps, against the Gore team on the grounds that they failed to meet the probabilistic burden of proof required for a contest.

Normally, a Supreme Court on appellate review is hard pressed to overturn a trial judge who has found in favor of an administrative official. But by a 4-to-3 vote, the Florida top court confounded most people's expectations by deciding, first, that every vote must count when the intention is clear, and second, that a recount of the undercounted votes throughout the state must be conducted under judicial supervision. The new dose of uncertainty could only benefit Al Gore.

Once again, the majority of the Florida Supreme Court twisted Florida law by ordering what was in essence a judicial continuation of an administrative recount. But at the contest phase, simply having election officials count ballots doesn't cut it. A trial was required to allow both teams to call local officials to the stand as fact witnesses, subject to cross-examination. That trial also should have allowed the Bush forces to challenge the legality of the undervote recount in Broward, Miami-Dade, and Palm Beach, but the four-member majority simply added those Gore votes as-is to the final tally, without taking any evidence at all from the Bush team. In essence the Florida Supreme Court appointed Judge Terry Lewis as de facto secretary of state to complete a recount, but made no provision for it to be challenged thereafter in any full-fledged contest.

So the case went up again to the U.S. Supreme Court. Only now the judicial dilemma was still more acute: If a bare majority of the Florida Supreme Court could have succeeded with its maneuvers, then Al Gore might well have been handed the presidency. In response, the five-member majority of the U.S. Supreme Court played a tough game of tit-for-tat. They stayed the Florida recount under a broad definition of "irreparable injury" to avoid, as Justice Scalia said, casting a "cloud" over the entire election. Justice delayed was, in a sense, justice achieved. The stage was set for a full-scale reargument, where once again the conservative majority had to show not just that the Florida Supreme Court was wrong, but so terribly wrong as to offend some constitutional guarantee.

The fits-and-starts of the Florida recount and contest procedure presented two lines of attack. The five conservative justices (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas) invoked what can only be described as the broadest equal protection test known to man, for which they have been skewered by an enraged liberal press. Doctrinally, these critics have a real point. Normally, it is critical to know just what class of persons is disadvantaged by unequal treatment. That question can be answered with tolerable certainty in the "one-man/one-vote" cases decided in the 1960s. In those cases, residents of urban counties had a tiny say in state governance compared to their country cousins. But in the Gore/Bush bash, it is odd to lump all undercounted voters, whoever they might be, into one protected class, especially since any Bush undervoters were quite happy to see their votes uncounted so long as the Gore undervoters were equally ignored.

Worse still, this weird equal protection theory should not have ended the case. Rather, it cried out for the remand sought by Justices Souter and Breyer so that the Florida Supreme Court could establish a uniform standard of its choosing, and thus throw the election to Gore by declaring all dimples equal and valid. So the majority of the U.S. Supreme Court deftly cut off that possibility by noting that, under Florida law as interpreted by no less than the Florida Supreme Court, the overriding intention of the Florida legislature was to choose a slate of electors before the December 12, 2000, date (after which the slate could be challenged in Congress). The real decision was 5 to 4, not 7 to 2 as some conservatives have claimed.

The conservative core (Rehnquist, Scalia, and Thomas) went one step further by invoking Article II of the Constitution, which governs executive power. That article provides that the electors in each state shall be chosen "in such Manner as the Legislature thereof may direct." Florida's law calls for a popular vote under a complex election code that Florida courts interpret. This novel constitutional claim does not necessarily turn on bad faith conduct by the four Florida judges, but rather it becomes necessary to show at least that their decision deviated so far from the statute as to constitute new law of judicial origin. Take this line, as the conservative core did, and the judicial process ends with Katherine Harris' certification of George Bush.

Can that extreme claim be defended? In a low-stakes contest no one would bother to cast aspersions on the majority of the Florida Supreme Court. In this high-stakes case, aspersion looks well-grounded, if it matters, given how the Florida Supreme Court took over and continued the recount started by the canvassing boards. The Florida court created a new scheme for judging elections that can be referred back to the original statute solely by fanciful interpretative footwork. But for the U.S. Supreme Court majority, the operative principle may well have been only this: One bad turn deserved another. And thus the 5--4 majority ran out the electoral clock by overriding a 4-3 Florida majority.

For the public, this struggle was no doubt like a football game that went down to the wire but did not make it to overtime. The spectacle is over, and we can all move on. But academics and politicians have longer memories that lead to endless postmortems. Hyperbolic politicians will seize the platform to denounce the outcome. Key black leaders and liberal commentators have already mindlessly denounced Bush v. Gore as another Dred Scott decision, without acknowledging just how ugly a situation Dred Scott created.

This overblown rhetoric will die down with the next political flap. Still, liberal legal academics will linger on to rub conservative faces in the mire of their newfound activism. But they will have a practical objective, which is to give the next open U.S. Supreme Court seat to a political moderate. In the courts, ambitious lawyers will find constitutional meaning in administrative flip-flops until the Supreme Court states that this equal protection dog barked only once; constitutional litigation will quickly return to normal.

What remains is the uneasy aftertaste of this big decision. But ultimately that will prove more congenial to sober minds than would the alternative of an indefinite and prolonged struggle lasting into the next year. Remember that when two animals fight to the death, sometimes both die of their wounds. Here at least the Republic marches on, chastened, weary, and wiser. It was far from pretty. But it could have turned out far uglier than it did.

Richard A. Epstein (r-epstein@uchicago.edu) is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and a Senior Fellow at the Hoover Institution. His latest book is Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Press).

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