The Longest Night: Polemics and Perspectives on Election 2000

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

6
BUSH V. GORE:
THREE STRIKES FOR THE CONSTITUTION,
THE COURT, AND DEMOCRACY,
BUT THERE IS ALWAYS NEXT SEASON

I

In the often quoted words of Justice Stevens's strong dissent in Bush v. Gore, 1 “Although we may never know with complete certainty the identity of the winner of this year's Presidential Election, 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.” 2

Actually things were much worse on that fateful day, December 12, 2000, when, in a 5–4 decision, a deeply divided Supreme Court put an end to the election and anointed George W. Bush president. Indeed, not only was the Supreme Court's majority decision patently unprincipled, but it also revealed a troubling flaw in the Constitution and potentially severe cracks in American democracy. As the Court noted, the Constitution does not give American citizens any right to vote for president. 3 Currently, all fifty states provide their citizens with the right to vote for the state electors who become part of the Electoral College charged with the election of the president and vice president. But nothing in the American Constitution prevents any or all of them from taking that right away from their citizens and choosing electors as their respective legislatures may in their sole discretion direct. 4 And, in fact, the Republican majority in the Florida legislature was well on its way to naming its own slate of electors regardless of the final tally of votes and could have thus single-handedly sealed the fate of the 2000 election, had the U.S. Supreme Court not done so beforehand. 5

America's original 1787 Constitution did not provide a right to vote either for senators or for the president. The Constitution was amended in 1913, however, to afford citizens a right to vote directly for their senators. 6 Nothing of the sort has occurred regarding presidential elections, thus

-111-

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