Election 2000: The Real Winner
Late Tuesday evening on December 12th, 35 days after our national election, the U.S. Supreme Court announced what was to become the final decision in the 2000 election (download the US Supreme Court Decision 414k PDF file). The nation's highest court reversed the decision by Florida's Supreme Court that had ordered a recount of the state's undercounted votes (see US Supreme Court v. the People).
As a result, the nation's electors met on December 18th to select the nation's 43rd President -- without incident (see The Electors Vote).
In the Justices' per curiam opinion, they noted that, "The right to vote is protected by more than the initial allocation of the franchise. Equal protection applies as
well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."
The Real Winner
The U.S. Court based their decision on an argument advanced by Bush's lawyers -- that the recount process did not adequately meet the provisional guarantees elaborated by the 14th Amendement to the U.S. Constitution.
Regardless of who eventually sits in the White House, the winner of this outcome WILL NOT be the American people. While the 14th Amendment has been used frequently to further equal treatment to minorities and women in this country, this Court decision disenfranchised thousands of Florida voters.
During the campaign, Al Gore's principle theme was, "I will fight for you." His struggle to have all the votes counted in Florida resulted in a ruling that illustrated that the U.S. Supreme Court does not fight for ALL Americans.
Illustration A: US Supreme Court Makes Historical Rulingsource: CNN - December 12, 2000
Illustration B: Recount Process Unconstitutional
source: CNN - December 10, 2000
While Gore lost the race for the White House, the U.S. Supreme Court affirmed to most Americans that our highest Court does not guarantee fairness and the right to vote for ALL Americans.
The Real Losers
It is clear that neither the Florida Supreme Court nor the U.S. Supreme Court wanted to play a role in this election. From the U.S. Court's per curiam opinion, "None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the People, through their legislatures, and to the political sphere."
"When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forces to confront. " From dissent of Justice Stevens, joined by Justices Breyer and Ginsburg, "Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing however is certain. Although we may never know with complete certainty 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."
The Paradox
The U.S. Supreme Court based much of their ruling on Article II of the U.S. Constitution. This clause designates the state legislatures to determine the manner that the state's electors shall be chosen. In the opinion of the Court, the Florida legislature's primary goal was to to complete the election process by December 12th. By meeting this objective, Florida's electors would receive the "safe harbor" provision guaranteed by the federal statutes, 3 USC 5.
Unfortunately, the U.S. Supreme Court's reliance on the 14th Amendment as a grounds for reversing the Florida Court's recount order may have opened a deep wound. There is little dispute that the recount scheme mandated by the Florida Court presented a fairness dilemna. Yet, we should not blame the Florida Supreme Court. In actuality, it was the faulty election system, put in place by the Florida legislative and executive branches, that created the problem. Both the U.S. and Florida Courts were brought into this "mess" due to the failure of the other branches of government.
Gore based his contest of Florida's election certification on the thousands of votes that did not register as valid by the punch card readers. In the Florida circuit court review, the evidence presented by Judge Saul showed punch card readers to be not as precise as other types of voting machines, i.e., optical ballot readers. The voters using punch card ballots concentrated generally in poorer and counties of significant minority concentration. These groups were unfairly disenfranchised. The system created by Florida's legislative construction and executive oversight is in violation of the 14th Amendment. For future elections, we should deny states the benefit of federal "safe harbor" if their system violates the U.S. Constitution.
In this case, the Florida Supreme Court, looking for an equitable remedy, found itself between a rock and a hard place. As the system set in place prior to the election was flawed, the Court had few options. The Gore team identified votes that, under the Florida election law contest procedure, seemed problematic. Complications arose as these contested ballots derived from predominately Democratic counties. In their attempt to be fair to the Republicans, the Florida Supreme Court ordered all the undercounted votes across the state to be re-examined. Although this remedy might have actually favored the Bush team, there was no legal precedence under Florida law. Thus, the Court's remedy, intending to provide an equitable outcome, simply opened more equal protection issues.
Keep in mind that the Florida Justices were sensitive to the U.S. Supreme Court rebuke just a week earlier. In that decision, the U.S. Court questioned whether the Florida Court ruling had in fact "created law" by extending the length of the protest phase of the post-election controversy. Some suggest this is why the Florida Justices did not establish, or require the circuit court to set, precise guidelines on how to conduct the recount. Instead, they emphasized the standard that was in place before the election -- determine the intent of the voter.
The U.S. Court said this provision was too broad to be reliable for this purpose. Few experts were surprised, as the Justices had tipped their hand during the oral questioning on December 11th. The Justices' concern was evident. Testimony from the legal teams clearly showed a process very difficult to control. Not only were ballot review teams using arguably different standards between precincts, the standards of judgment appeared to vary from counting table to table in the canvassing locations.
The Solution
We should refrain from faulting either the U.S. or Florida Supreme Courts. By law, the responsibility rests with state legislatures. Florida's system tolerated too much error. The patchwork of voting machines, processes and varying standards made it pragmatically impossible to count (or recount) all the votes. I believe history will show that we should fault the political leaders in Florida. Was it, is it, any better elsewhere in America? Ultimately, is not our history of general apathy toward elections, and the lack of soulful interest in public affairs, that has led to this extraordinary event?
In order to end on a positive note despite this collapse in American democracy, I would like to remind America and the world that we survived this test of our social and political civility without firing a shot or engaging in violent confrontation. Together, we now step forward. Shall we dance?
Just For Fun
Butterfly Ballots and Bifocals
Actual Palm Beach Florida Ballot
Proposed Florida Ballot
JUST ANOTHER NEW MEXICO ELECTION
After absolute assurances by officials that the Nov. 7 election would be different by avoiding all the glitches of the past, skeptical New Mexicans watched as Bernalillo County and other places in New Mexico stumbled uncertainly toward certification:
The day after the election, Bernalillo County poll workers find out they failed to properly program voting machines by clicking a box that would have recorded straight party voting. No such problem occurred in 36 other states that used the same brand of voting machines.Source: Albuquerque Journal, Jim Belshaw, Jan. 1, 2001
Three days after the election, Bernalillo County says 252 ballots are missing. A state district judge, monitoring the tally, says she thinks the election has been compromised.
Four days after the election, Bernalillo County election officials find a locked box in a back room in a warehouse. It contains about 250 ballots.
Five days after the election, State Police start impounding ballots in case they're needed for recounts or review later.
Seven days after the election, Democrat Al Gore picks up a quick 500 votes and moves ahead of Republican George W. Bush in New Mexico after Do–a Ana County election officials figure out they had misread Gore's scribbled absentee ballot totals as 120 instead of 620.
Twenty-two days after the election, Roosevelt County finds that it had improperly programmed its voting machines, resulting in the failure to count 500 straight-party votes.
Twenty-eight days after the election, on Dec. 6, Al Gore is declared the winner in New Mexico, by 366 votes.
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