How Bush Won
Magarian, Gregory P., Commonweal
A Badly Flawed Election Debating Bush v. Gore, the Supreme Court, and American Democracy Edited by Ronald Dworkin New Press, $26.95, 352 pp.
The Longest Night Polemics and Perspectives on Election 2000 Edited by Arthur J. Jacobson and Michel Rosenfeld University of California Press, $24.95, 408 pp.
The Vote Bush, Gore, and the Supreme Court Edited by Cass R. Sunstein and Richard A. Epstein University of Chicago Press, $18, 266 pp.
September 11, 2001, has caused many Americans to forget December 12, 2000. On that date, the United States Supreme Court handed down its decision in Bush v. Gore, which effectively ended the bizarre 2000 presidential election and inspired angry denunciation from many quarters. The recent anniversary of the September 11 atrocities demonstrated that those awful events still ring too freshly in our minds for most of us to envision how they will change American society over time. Three new volumes of thoughtful academic commentary on Bush v. Gore similarly demonstrate that more time must pass to clarify that decision's long-term implications for electoral practices, constitutional law, and the reputation of our highest court.
On November 8, 2000, Americans awoke to the news that the presidential election remained too close to call in the decisive state of Florida. The next month brought incessant political and legal wrangling over recounts. On December 8, a closely divided Florida Supreme Court held that a statewide manual recount of "undervotes"--ballots discarded in the initial count--was proper under Florida election statutes. The state court instructed county election officials to include in their final counts any ballot that indicated a voter's "clear intent." George W. Bush responded to this legal victory for Al Gore by asking the United States Supreme Court to reverse the Florida court's decision. Legal experts thought the request doomed, because deciding the case would require the Supreme Court to second-guess a state court's interpretation of state law and to interfere in the political process. At worst, the experts predicted, the dead heat in Florida would trigger a detailed set of procedures set forth in the United States Constitution for resolving uncertain presidential elections.
The U.S. Supreme Court stunned the experts by agreeing to hear the Bush appeal. Even more surprisingly, the Court ordered an immediate stay of the Florida recounts, halting all efforts toward increased accuracy. The decision pitted the Court's five most conservative members against the four most liberal justices. The same five-justice majority then reversed the Florida court's decision, holding in an unusual, unsigned per curiam opinion that the state court's "clear intent" standard for the manual recounts violated the federal Constitution's guarantee of "equal protection of the laws." The Court's three most conservative members--Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas--argued in a concurring opinion that the Florida court also had interpreted preexisting Florida election statutes so implausibly as to violate another constitutional provision that empowered state legislatures to determine the manner of choosing presidential electors. The five-justice majority concluded that no time remained to remand the case to the Florida court to repair the equal protection flaw, because a federal law allowed congressional challenges to Florida's slate of electors if the slate was not finalized by December 12--the very day the Court announced its decision. The next day, December 13, Vice President Gore conceded the election.
Reading the essays in these volumes leaves no doubt that the Supreme Court majority decided Bush v. Gore incorrectly. To begin with, every lawyer knows that a reviewing court may stay a lower court's judgment pending appeal only if execution of the judgment would cause the appellant "irreparable harm. …