The Longest Night: Polemics and Perspectives on Election 2000

By Arthur J. Jacobson; Michel Rosenfeld | Go to book overview
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9
NOTES FOR THE UNPUBLISHED
SUPPLEMENTAL SEPARATE OPINIONS
IN BUSH V. GORE

These opinions were prepared for discussion in a constitutional law class. They are, of course, wholly fictitious; I have attempted to capture the voice of an opinion, without the use of the usual legal citations and technical arguments. They are designed to explore the legal issues raised in the actual opinion and to provoke discussion on judicial role. They are also designed to rebut the notion that the decisions of the various judges can only be explained by efforts to advance a favored presidential candidate.

O'Connor and Kennedy, J.J.:

We write separately to explain why we believe that the Florida legislature adopted the federal December 12 “safe harbor” provision for certifying presidential electors as a firm, nonextendable deadline for completing the count of ballots for presidential electors and why it was permissible, indeed necessary, for us to have decided that very important question of Florida law. We take the extraordinary step of issuing this supplemental opinion in response to suggestions that our decision to join the Court's stay of the Florida hand recount and our decision to join the Court's per curiam opinion were unprincipled exercises of raw power designed to assure the election of a favored presidential candidate. Ordinarily, we would not respond to such criticism. In the unique circumstance of this case, however, we believe that respect for the integrity of the judiciary warrants a more complete explanation of our reasoning than was possible in the difficult circumstances surrounding the release of the Court's per curiam opinion.

We understand the intense disappointment felt by persons who argue that Vice President Gore not only won the national popular vote by almost 400,000 votes, but was denied the opportunity to demonstrate that a hand recount of the so-called undercounted Florida ballots would have shown him to be the winner of Florida's crucial 25 electoral votes. We also understand that reasonable persons may harbor different opinions concerning

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