Men in Black (19 page)
Authors: Mark R. Levin
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 Court 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.
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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.”
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As Wells predicted, the following day, the U.S. Supreme Court voted 5–4 to halt the manual recounts ordered by the Florida court.
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On December 11, the Supreme Court held a hearing on the Florida court’s latest action.
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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.
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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.”
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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.”
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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.
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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.
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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.
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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.
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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.
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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.”
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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.”
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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.
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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.
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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.”
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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.
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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. Supreme 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.
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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,
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but federal law recognizes no other authority who could actually certify Florida’s electors or the votes of those electors.
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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.
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Even if this hurdle had been jumped, the House would then have chosen the president by a vote of the majority of state delegations.
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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.)
Third, since Article II, Section 1, Clause 2 of the Constitution gave the Florida legislature ultimate authority over the state’s selection of electors, it was clear at the time that the Republican-controlled legislature was preparing to do just that, had the U.S. Supreme Court not intervened to stop the Florida court’s rewriting of state election law.
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In my view, Gore’s litigation efforts were never going to grant him the presidency, the Florida Supreme Court’s lawlessness on Gore’s behalf was for naught, and the U.S. Supreme Court’s decision to rein in the Florida Supreme Court had no effect on the ultimate outcome of the election.
What should have happened in 2000?
The canvassing boards in the various Florida counties should have performed their duties under Florida law and certified their returns.
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The boards should have followed the specific standards for hand recounts as prescribed by Florida law.
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Those returns should have been sent within the required deadline to the Florida department of state,
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and then Governor Jeb Bush should have certified the appointment of electors to the archivist of the United States.
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Once Florida’s electors met in Tallahassee on December 18, they should have certified their ballots and forwarded them to the president of the Senate, the Florida secretary of state, the archivist of the United States, and the local federal district judge where the electors met—all as required by federal law.
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Florida’s circuit courts should have considered only whether the state’s election laws were being observed by the election boards, and should have refused to hear the spate of challenges offered by the political parties, by the candidates, and by individual Florida voters. In other words, the state courts should have limited the cases before them to the question of whether the election was conducted in accordance with the clear wishes of the state legislature, as expressed in the state’s election statutes.
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