The Longest Night: Polemics and Perspectives on Election 2000

By Arthur J. Jacobson; Michel Rosenfeld | Go to book overview

the election was so close anyway that it might as well have been Bush. He treats the fact that five of the nine Supreme Court justices are political conservatives as, in effect, a tie-breaker like a coin flip. But it will make a very great difference to people everywhere that it is Bush rather than Gore who is America's president. Bush's cabinet appointments (which include, as attorney general, John Ashcroft, the candidate of the religious right) have already refuted the optimistic assumption that he will try to govern from the middle, and there is ample reason to worry that his future Supreme Court appointments will be equally aimed at pleasing the extreme right of his party.

When a presidential election is close, particularly when so much turns on the outcome, it is more and not less important that the rules in place be followed punctiliously in deciding who actually won. If Gore has won not only the national popular vote but also the popular vote in Florida, and hence the Electoral College as well, then it is not only unfortunate that we will be governed by Bush's policies and constituencies but unfair. Florida's vote-counting machines, many of which are conceded to be inaccurate, particularly in counties with a high proportion of minority and poor voters, declared 3 percent of the state's ballots nonvotes. (The average in the rest of the country was 2 percent.) Fried insists that it is beyond “our present capacity” to achieve a more accurate tabulation. But the careful unofficial recounts now being conducted separately by the Miami Herald and by a group of other prestigious newspapers, which Fried declares a foolish exercise, will presumably show that his surprising pessimism is unfounded.


NOTES

Fried's Response to Dworkin
1
I offer only one example, but there are many: in 1992 in the Harris case, the Supreme Court in one night set aside three stays issued in a death case by the Court of Appeals for the Ninth Circuit and finally ordered that court to issue no more stays without permission of the justices.
2
Village of Willowbrook v. Olech, 120 S. Ct. 1023 (2000).
3
That this variable method was sanctioned after the election had taken place, and when it was reasonably thought by the Bush forces to favor their opponent, makes the Florida court decree more, not less, offensive.
4
Thus, for instance, some counters would decide whether an indentation was meant as a vote from whether it appeared next to the name of the presidential candidate of the same party as candidates for other offices for whom that voter had unambiguously voted. This is not an absurd inference in a forensic exercise or if doing history. I suggest that as a way to determine an election it is absurd, although as a justice of the Supreme Judicial Court of Massachusetts I participated in just such a process in the Delahunt case.

-108-

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