Ten years ago, the presidential election of 2000 was finally decided by a 5 to 4 decision from the United States Supreme Court. At the time I thought the result was an outrage. I still do.
I wrote a series of three columns about the election on three successive weeks starting ten years ago this week. Here, knowing now what the Court’s decision meant for the country and the world, are excerpts from all three:
Both sides soon resorted to the courts. Gore filed his claim with the state courts, arguing that the Secretary of State had abused her discretion in refusing to accept late-filed manual recount results. Bush sought an injunction from the federal courts, alleging that the manual recounts were unconstitutional. Secretary Harris was ultimately rebuked by the Florida Supreme Court (on a 7-0 vote), but that victory for Gore was short-lived. That same day, Bush filed an appeal with the U.S. Supreme Court, arguing that the Florida Supreme Court had illegally rewritten the Florida election statutes.
On November 26, Secretary Harris, pursuant to the deadline imposed by the Florida Supreme Court, certified her state’s final results, which showed a margin of 537 votes in favor of Bush. The very next morning, Gore, consistent with Florida law, filed a “contest” against that certified vote. With the United States Supreme Court and the Florida Supreme Court both now fully engaged, it was clear that the election would be decided by one or both of those bodies.
Florida’s election laws gave scant instructions to county officials in conducting recounts. “The intent of the voter” was the only standard specified, which left it to local canvassing boards to decide whether to count hanging chads, dimpled chads, three-cornered chads or just completely punched-out ballots. Arguing that such a “standardless” standard invited mischief and was therefore unconstitutional (on Due Process and Equal Protection grounds), Bush filed suit in federal court. The suit was rejected without so much as a hearing by the federal District Court and was treated with similar disdain by the Circuit Court of Appeals, sitting in Atlanta.
Ah, but the U.S. Supreme Court, eschewing its normal deference to the states, took on the case, setting oral arguments for December 1. Unfortunately, by that date, the case had been rendered moot (a judicial term meaning, in essence, a decision would no longer matter since events had resolved the issue). The Court, in its apparent zeal to uphold its position, had ignored the timetable established by the Florida Supreme Court’s initial order. Once the vote total was certified, the protest period (under which the recounts had taken place) had ended, and the earlier recount issue had been swallowed up in the final tally (certified by Secretary Harris) and by the subsequent vote “contest,” filed immediately thereafter by the Gore campaign.
Still, the U.S. Supremes chose to wear their activist robes. Instead of declaring, as many jurists had predicted, that review of the case had been “improvidently granted,” they sent the case back to the Florida Supreme Court with directions for that court to clarify how it had come to decide that Secretary Harris had abused her discretion by refusing (initially) to allow any manual recounts after November 14.
Almost no one had the temerity to suggest publicly that the United States Supreme Court had shown poor judgment in accepting the first appeal, let alone in issuing a bizarre order that was effectively moot on the day it was issued, but to more astute observers, the Court had revealed its intention. It, not the Florida Legislature, not the Florida Supreme Court, not the United States Congress and certainly not the local canvassing boards in Florida (whether under the supervision of the state courts or not), would be the final arbiter of the 2000 presidential election.
On December 9, with court-ordered manual recounts underway in all 67 of Florida’s counties, the Court acted again, this time on a 5-4 vote. Stop the recounts, it declared. Immediately, Justice Antonin Scalia, he of the ultra-conservative wing of the Court, announced rather arrogantly that a recount would produce irreparable harm for the country by bringing into doubt the legitimacy of the succeeding presidency. Huh?
Three days later, on the same 5-4 vote, the longest election in U.S. history was over. George W. Bush had won the presidency by a single vote.
In legal parlance, a “result-oriented opinion” is understood to be a harsh judgment of a court’s work on a particular case. The term indicates that a court first decided how it would rule and then wrote an opinion to justify that result. Since lawyers respect the rule of law above all other concerns, and since the rule of law is dependent upon the recognition of established precedent and on analyses of issues based on pre-existing authority, a result-oriented opinion is almost as offensive to attorneys as an “unjust” verdict is to lay people.
Some have said that the United States Supreme Court, in the recent case of Bush v. Gore, acted in “statesmanlike” fashion. I am not one of them. The Court effectively usurped the constitutional prerogatives of the Florida state courts and its legislature and took upon itself the task of determining the outcome of the election. The five justices who constituted the majority in the vote to secure the presidency for George W. Bush did so in derogation of their constitutional role and the rule of law.
And so, as we begin the new year, we can close the books on the presidential election. The final results are now in, certified by every state and including every lawfully cast ballot that was allowed to be counted. In the nationwide popular vote, Gore beat Bush decisively, by well over 500,000 votes. In Florida, which determined the Electoral College outcome, the vote could have gone either way, but for five justices of the Supreme Court, who, to their everlasting shame, allowed political leanings to dictate their decision and then crafted an opinion to justify that result.
And ten years later the impact is still being felt.