Men in Black

by Levin, Mark R.

  Harris had no discretion to extend or waive the deadline imposed by Florida law, which provided, in part: “If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored, and the results shown by the returns on file shall be certified.”23 (Emphasis added.)

  The statute was unambiguous, and the challenges against it by Gore’s legal team should have been dismissed. The effect of this statute, and its strict adherence to a specific date and time, is to ensure that counties don’t manipulate vote returns after electoral winners and losers are announced. In other words, it prevents the kind of endless vote counting that was under way in heavily Democratic counties. All states impose deadlines on vote tallying.

  By November 15, when the deadline passed for counties to submit certified election returns to Harris, she announced that she would not accept additional recount returns. Harris also asked the Florida Supreme Court to stop manual recounts under way in various counties.24 This was consistent with Florida law. On November 16, Gore filed a motion in a Florida circuit court to force Harris to accept amended vote returns after the deadline.25 Judge Terry Lewis ruled that Harris was not required to enforce the deadline, but acted within her proper discretion in doing so.26

  On November 17, 2000, the Florida Supreme Court, on its own motion, issued a temporary stay against Harris, stopping her from certifying the election results on the day and time provided by law, pending a full hearing before the court.27 Meanwhile, on November 17, the Eleventh U.S. Circuit Court of Appeals in Atlanta denied the Bush camp’s motion to stop manual recounts.28 Bush’s lawyers had argued that recounts in only heavily Democratic counties violated the Fourteenth Amendment’s equal protection clause, which provides that no state shall deny its citizens equal protection under the law. They essentially claimed that giving special attention to ballots in certain counties violated the equal protection of citizens in other counties. The court, in rejecting the Bush team’s argument, correctly (and painfully, for Bush supporters like me) stated, “After expeditious but thorough and careful review, we conclude that the Emergency Motion for Injunction Pending Appeal should be denied without prejudice. Several factors lead us to this conclusion. Both the Constitution of the United States and [federal statutes] indicate that states have the primary authority to determine the manner of appointing Presidential Electors and to resolve most controversies concerning the appointment of Electors.”29

  On November 21, the Florida Supreme Court ordered that manual recounts could continue, but must be completed within five days. The Florida Supreme Court held that Harris abused her discretion in enforcing the statutory deadline. The court completely ignored existing Florida law governing deadlines and recounts, and imposed its own new deadline out of thin air—November 26.30 Three days later, the U.S. Supreme Court agreed to hear arguments about whether the Florida Supreme Court’s order was constitutional.31

  Broward County, one of the four counties subject to a manual recount, had completed its recount inside of the November 26 deadline.32 But Broward County changed its counting rules in midstream to include dimpled ballots—even chads with barely discernible indentations—ensuring that Gore received more votes. Moreover, at least one Democratic canvassing board member was caught bending ballots so that light could peek through an otherwise unpricked Gore chad.33

  Another Gore-targeted county, Palm Beach, kept shifting its standards for counting votes. Dimpled ballots had not been counted at first, but eventually they were. Virtually every other kind of marked chad was also counted.34 Palm Beach County canvassing board members were unable to complete their recount within the extended deadline, however. Harris refused to grant another extension for the late filing beyond the second deadline and the results were not included in her submission to Florida governor Jeb Bush. Nonetheless, Palm Beach County continued counting past the deadline.35

  A third county, Miami-Dade, concluded that it could not meet the Florida Supreme Court’s extended deadline and decided not to conduct a full manual recount. This was within the county’s discretion.36

  On November 26, the deadline set by the Florida Supreme Court passed. Harris’s submission to Governor Jeb Bush was consistent with the Florida Supreme Court’s decision of November 21. Harris was legally obligated to certify the results of the popular vote and submit those results to Governor Bush, which she did. Bush then carried out his legal duty and signed a “certificate of ascertainment” appointing George W. Bush’s slate of electors to the electoral college. He then forwarded the results to the archivist of the United States.37 At this point, the election was over. But this momentous fact was missed or ignored by the courts, both legal teams, and the press.

  Despite Harris’s and Jeb Bush’s actions, the court haggling continued. On November 27, Gore’s attorneys challenged the voting results in a Tallahassee state circuit court.38 On November 30, the Republican-controlled state legislature voted to convene a special session of the legislature to appoint electors if the matter was not resolved through other means by December 12, the deadline under federal law when states must certify their slates of electors.39

  On December 1, the U.S. Supreme Court heard oral arguments on the issue of whether the Florida Supreme Court acted unconstitutionally when it ordered Harris to include manual recounts submitted after the statutory deadline.40 Three days later (during which Gore’s challenge to the returns in Palm Beach and Miami-Dade counties in state circuit court was denied), the U.S. Supreme Court set aside the Florida Supreme Court’s decision to extend manual recounts, pending an explanation for its action.41

  But the worst was yet to come. December 8 saw the Florida Supreme Court commit a flagrant act of judicial abuse. Basing its actions on no constitutional, legal, or judicial precedent, it ordered manual recounts in every Florida county that had significant numbers of “undervotes.”42 Undervotes are ballots in which no vote for president is recorded or detectable by machine tabulation. Ballots on which votes are cast for more than one candidate for president are called “overvotes.”43 The court stated, “[W]e agree with the appellees that the ultimate relief would require a counting of the legal votes contained within the undervotes in all counties where the undervote has not been subjected to a manual tabulation.”44 The court set aside its own November 26 deadline and ordered additional recounts.45

  But the court didn’t provide a deadline for completing a manual recount. This problem was raised in a dissent by Justice Major Harding:

  While this Court must be ever mindful of the Legislature’s plenary power to appoint presidential electors [under Article II, Section 1, Clause 2 of the U.S. Constitution], I am more concerned that the majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos.

  Even if by some miracle a portion of the statewide recount is completed by December 12, a partial recount is not acceptable. The uncertainty of the outcome of this election will be greater under the remedy afforded by the majority than the uncertainty that now exists.46

  Another problem was that the court failed to provide a standard for recounting ballots. The question of whether a dimpled chad, a hanging chad, or a “swinging door” chad constituted a vote was left unanswered.

  Chief Justice Charles T. Wells’s dissent recognized that his colleagues on the Florida Supreme Court were doing great harm to the U.S. Constitution and the rule of law. He wrote, in part:

  [T]he majority’s decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.

  Importantly to me, I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this C
ourt as an institution.

  Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters—not by judges. We must have the self-discipline not to be embroiled in political contests whenever a judicial majority subjectively concludes to do so because the majority perceives it is “the right thing to do.” Elections involve the other branches of government. A lack of self-discipline in being involved in elections, especially by a court of last resort, always has the potential of leading to a crisis with other branches of government and raises serious separation of powers concerns.47

  And Wells warned that continual delays imposed by the court raised the “very real possibility” of Florida missing the federal electoral college election deadlines, thus “disenfranchising those nearly six million voters who are able to correctly cast their ballots on election day.”48

  As Wells predicted, the following day, the U.S. Supreme Court voted 5–4 to halt the manual recounts ordered by the Florida court.49 On December 11, the Supreme Court held a hearing on the Florida court’s latest action.50 On December 12, by another 5–4 margin, the Supreme Court held that the Florida court had violated the equal protection clause of the U.S. Constitution by ordering statewide manual recounts with different standards in the various counties.51

  In its decision in Bush v. Gore, the Supreme Court stated, “The right to vote is protected in 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.”52 The Court continued, “The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer…. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.”53

  The manual recounts were halted and the frenzy of litigation initiated by Gore was ended. Gore made his long-delayed concession speech the day following the U.S. Supreme Court’s ruling.54

  It is clear that the three judicial originalists on the U.S. Supreme Court, Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas, were not able to assemble a majority of the Court on the straightforward question of whether the Florida Supreme Court usurped the authority of the Florida legislature in ordering standardless manual recounts past the federal deadline. Article II, Section 1, Clause 2 of the United States Constitution specifically empowers state legislatures to determine how electors are chosen. “Each State shall appoint, in such Manner as the Legislature thereof may direct,” electors to the electoral college.55 The Florida Supreme Court’s repeated manipulation of state election law procedures and rules supplanted the legislature’s authority under the federal Constitution.

  Nevertheless, the actions of the Florida Supreme Court were so egregious that a majority of the U.S. Supreme Court believed something had to be done to address it. While five justices signed on to the U.S. Supreme Court’s decision based on equal protection clause violations, two additional justices actually embraced the equal protection argument even though they voted in the minority for other reasons.56 I believe Rehnquist, Scalia, and Thomas obviously tried to make the best of a bad situation, unable to convince Justices Sandra Day O’Connor and Anthony Kennedy to overturn the Florida Supreme Court on Article II grounds alone. Still, the best decision would have been no decision. While the U.S. Supreme Court’s motive was understandable—reining in a lawless Florida Supreme Court—it may well have unleashed future election challenges based on the equal protection clause involving voting mechanisms, voting procedures, the tabulation of votes, the qualification of candidates, and so forth.

  As I wrote in National Review Online back in December 2000, the question now is: What has the high court wrought? For example, does a federal cause of action exist if different ballots are used throughout a state, if different methods of voting are used in different counties, or if different methods of voting are used in different localities within a county? Does a federal cause of action exist if older voting machines are used in poor areas and newer machines are used in affluent areas? Where once federal courts were loath to get involved in elections—based on lack of standing and/or the separation of powers/political question doctrine—federal judicial intervention in state and federal elections may now become commonplace. Litigants will attempt to use the courts to overturn the results of elections.57

  The effects of the Supreme Court’s ruling in Bush v. Gore were felt in 2002 when Senator Robert Torricelli, a Democrat from New Jersey, withdrew from his Senate race. State law provided that a political party could not replace one candidate with another within fifty-one days of an election. Torricelli announced his withdrawal thirty-six days before the election.58 Rather than upholding the law and keeping Torricelli’s name on the ballot, the New Jersey Supreme Court, in a unanimous decision, said that the Democratic Party could replace Torricelli with former senator Frank Lautenberg. The New Jersey Supreme Court said that election law should be broadly interpreted to “allow parties to put their candidates on the ballot, and most importantly, to allow the voters a choice on Election Day.”59 While the New Jersey court did not rely on the federal equal protection clause for its ruling, its heavy-handed intrusion into the election process may well have been encouraged by the recent precedent set by the U.S. Supreme Court.

  The federal equal protection argument was raised in 2003 when the ACLU attempted to delay the 2003 recall election for governor of California. The ACLU filed a lawsuit based on federal equal protection grounds alleging that voters in at least six counties would be disenfranchised “because voters in counties that use punch-card machines will have a comparatively lesser chance of having their votes counted than voters in counties that use other technologies.”60 At first, a panel of the Ninth U.S. Circuit Court of Appeals agreed with the ACLU and ordered a halt to the recall election. It was then reversed by the full court.61 But the stage has been set for additional challenges in future elections.

  Even before the first vote was cast in the 2004 presidential election, numerous lawsuits were filed—especially in battleground states—with the intention of influencing the election. The suits challenged everything from alleged equal protection violations affecting minorities, ballot access for prisoners, disenfranchisement of overseas voters (including military personnel), accuracy of voter registration rolls, absentee ballot requirements, provisional ballots, and certain paperless voting technologies. There were thousands of lawyers poised to file additional suits had the election been close.62

  There are several significant questions about the 2000 presidential election that are raised frequently but rarely answered.

  Could the Florida legislature have intervened and chosen the state’s presidential electors itself?

  Yes. Article II, Section 1, Clause 2 of the U.S. Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”63

  The Florida legislature could have (and, in fact, was preparing) to intervene and name a slate of electors if the Florida Supreme Court continued to interfere with the election.64 The legislature, which was controlled by the Republican Party in 2000, had absolute authority under the Constitution to choose Florida’s members of the electoral college. This is another reason why Gore’s litigation strategy was never going to succeed in winning him the Florida electoral votes he needed to become president.

  Was it necessary—or appropriate—for the U.S. Supre
me Court to enter the controversy?

  I believe that the U.S. Supreme Court intervened in the 2000 election not to choose a winner, but rather to rein in the Florida Supreme Court, which was intent on allowing county election boards to recount returns under increasingly flawed standards until the desired result had been achieved—a victory for Gore. But it was not necessary for the Court to become involved at all. The issue would have been resolved—under the explicit language of the Constitution—by the Florida legislature and ultimately by Congress.

  Is there any scenario under which Gore could have won?

  Both practically and constitutionally, no. There are three basic reasons for this. First, on November 26, 2000, after Florida’s returns had been certified by Katherine Harris, Governor Bush sent a certificate of ascertainment to the archivist of the United States certifying the election of the Republican slate of electors to the electoral college, as required by federal statute.65 Once Bush had done so, no authority—state or federal, legislative or judicial—could force him to withdraw his certification. Certainly, his certification could have been challenged in Congress when the electoral college votes were counted,66 but federal law recognizes no other authority who could actually certify Florida’s electors or the votes of those electors.67

  Second, once the electoral college votes were counted in Congress, a challenge of the Florida votes would have required a majority vote in each house to reject Florida’s electoral vote, an unlikely scenario as the Republicans controlled the House of Representatives.68 Even if this hurdle had been jumped, the House would then have chosen the president by a vote of the majority of state delegations.69 Since Republicans outnumbered Democrats in a majority of the state delegations, the Republicans controlled a majority of those delegations. I have no doubt they would have voted to uphold the election of George W. Bush. (A very unlikely but technically possible scenario of a Democrat winning would have involved the vice presidency, not the presidency. Had a challenge been made, the Senate, which was split 50–50 along party lines, would have selected the vice president by the vote of individual senators. Since Gore was still serving as vice president, and therefore president of the Senate, he could have cast the tie-breaking vote for Joe Lieberman.)