Perhaps
no event better illustrates the power of the United States Supreme Court than
the resolution of the 2000 presidential election. Just when you thought the
separation of powers issue had been settled once and for all, the Court stepped
in to adjudicate who had won the biggest political contest of all. Legions of
Court watchers, law professors, media commentators, and armchair legal analysts
across the country thought the Court's willingness to step into the fray was a
major misstep. Still, somebody had to decide who's in charge!
Background info
Election
night 2000 was a cliffhanger that went on for weeks. Many people went to bed
that night thinking that Al Gore had won, only to discover in the morning that
George W. Bush had been declared the winner. In fact, the election was simply
too close to call. Several states were up for grabs, but in the end it came
down to one: Florida, where Bush's younger brother, Jeb, was governor. Florida
electors were unable to commit themselves to either Bush or Gore owing to the
closeness of the vote. Brush fires erupted in several precincts where the
candidates' surrogates traded allegations about various improprieties. Recounts
were started, then stopped as Republicans and Democrats wrangled over what
standards to apply. It was more than a little chaotic.
The Court steps in
The
Supreme Court actually interposed itself into the election contest three times.
Only the last two are known as Bush v. Gore. In the first of these
cases, Bush v. Palm Beach County Canvassing Board, the Court hoped to
end the election crisis by putting a stop to the Florida Supreme Court's
decision to extend the time for certifying the vote past the period set by
state law. But by the time the Court began hearing arguments in the appeal on
December 1, the certification had already occurred. The embarrassed justices
sent the case back down to the Florida Supreme Court, instructing the lower
court to rewrite its opinion so that it would not create a conflict between
state and federal law.
A
week later, the Florida Supreme Court ordered a statewide recount of ballots.
Unlike its earlier decision, however, this one was not unanimous. With the
Florida justices split 4-3, the U.S. Supreme Court once again exercised its
discretionary appellate review jurisdiction and granted certiorari, or
review, to Bush v. Gore. The day after the Florida Supreme Court had
ordered a recount, the U.S. Supreme Court granted a temporary stay, or
delay, in enforcing the Florida Supreme Court's order. The U.S. Supreme Court
justices, too, were narrowly divided, 5-4. The five justices voting in favor of
the stay were the same five conservatives who had been moving the Rehnquist
Court to the right for more than a decade. The first hearing of Bush v. Gore
telegraphed to the nation what would happen if the Court took further action in
the case.
The
Court's third and final intervention in the 2000 presidential election came
just days later. In its unsigned opinion, the Court explained that it had voted
5-4 to put a stop to the Florida recount. Allowing the recount to go forward,
the Court said, would violate the Equal Protection Clause of the Fourteenth
Amendment. The U.S. Supreme Court sent the case back down to the Florida
Supreme Court, which had no alternative but to dismiss it. The presidential
election of 2000 had been decided, in essence, by the vote of one Supreme Court
justice.
Needless
to say, the George W. Bush camp was jubilant. Al Gore supporters were incensed.
Many people were simply happy to have things settled. But others worried that
the Court had gone too far. In the past, in landmark cases like Brown v.
Board of Education (1954), which put an end to legal segregation, and United
States v. Nixon (1974), which led to the first presidential resignation
under threat of impeachment, were unanimously decided. After Bush v. Gore,
the concern was that the Court had not only overreached itself but undermined
its authority by not speaking with one voice. That split decision, 5-4,
suggested that Bush v. Gore was a political, not a judicial, decision.
Precedents
Bush
v. Gore wasn't the Court's first foray into the
realm of king making. The election of 1876 pitted Samuel J. Tilden, the
Democratic governor of New York, against Rutherford B. Hayes, the Republican
governor of Ohio. After the votes had been counted, it seemed that Tilden had
won the popular vote and had 184 uncontested electoral votes to Hayes's 165.
The magic number was 185 electoral votes. Twenty votes of the Electoral College
were still up for grabs, however — all but one of them in the southern states
of Florida, Louisiana, and South Carolina. (The exception was Oregon. They
always have marched to a different drummer.)
The
Twelfth Amendment stipulates that in a contested presidential election,
"The President of the Senate shall, in the presence of the Senate and the
House of Representatives, open all the certificates and the votes shall then be
counted." Because in 1876 Congress was equally divided between Democrats
and Republicans, the Republican-controlled Senate and the Democrat-controlled
House set up an electoral commission to decide who would become president. The
Senate chose three Republicans and two Democrats to sit on the commission, and
the House chose two Democrats and three Republicans. The remainder of the commission
was to consist of five justices of the Supreme Court. The bill setting up the
commission named two Republican justices and two Democratic justices, but let
those four select their own nonpartisan tiebreaker.
The
only truly neutral member of the Court at the time was David Davis. But Davis
resigned from the Court almost immediately, leaving only Republican justices as
alternatives. Joseph Bradley, seemingly the least partisan of those remaining,
was selected as the final member of the commission. To no one's great surprise,
the commission voted along party lines, selecting the Republican Hayes.
Democrats, who were mostly Southerners, cried foul, claiming that Davis, and
perhaps Bradley, had been subjected to political blackmail. When the uproar threatened
to derail the orderly transfer of power, a deal was struck. The Republicans
agreed to withdraw the federal troops still occupying the South in the wake of
the Civil War, to appropriate funds for Southern improvement, and to appoint at
least one Southerner to the cabinet. In return, the Democrats agreed not to
delay Hayes's inauguration. It was a flat-out political deal, and ever since
its implementation, the Court has been criticized for having played a part in
what many saw as outright log rolling.
And the winner is . . .
Why,
then, did the Supreme Court agree to get back into the fray after the election
of 2000? In a sense, the justices had no choice. When the contest between
George W. Bush and Al Gore proved too close to call, the contestants resorted
to a series of lawsuits in an effort to settle the matter. These suits
proceeded simultaneously in the state court system and in federal court. The
cases largely concerned the matter and manner of vote counting (and recounting)
in the pivotal state of Florida. There were charges of voter intimidation,
ballot rigging — all manner of political shenanigans. Something had to be done.
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