Remember the Election of 2000

It seems that the ghost of Bush v. Gore is rising again to haunt American democracy. A recent Vanity Fair article has sparked renewed attention about the 2000 Election, and about the badly reasoned Bush v. Gore opinion. Jeff Rosen has pointed out in the New Republic that the political parties are gearing up for fights over recounts along the example of the 2000 election, making use of Bush v. Gore as a precedent. And there is the possibility that there will be a constitutional challenge to Colorado's referendum proposal to split the state's electoral votes by percentage of the popular vote received, based on arguments first offered in Bush v. Gore.

After the last election I did a painstaking legal analysis of both Bush v. Gore and the work of the Florida Supreme Court that led to it. You can find that article here. I concluded that, despite the many criticisms the Florida Supreme Court has received, it didn't do all that bad a job, given the statute it had to work with, and the most controversial judgments it did make (for example, changing the date of certification) weren't essential to the ultimate outcome. When you look at the statutory framework carefully, you discover that, all in all, the Florida Supreme Court has gotten a bum rap. On the other hand, the Bush v. Gore decision-- especially the part concerning the remedy-- was really quite shoddy. Several academics have offered articles defending the decision, but you really have to rewrite the opinion to do that. The decision that the Court actually produced doesn't make that much sense, and it strongly suggests (perish the thought) that ideological considerations may have (consciously or unconsciously) influenced the Justices.

But the important point to remember, as we head toward another election, is that neither the Florida Supreme Court nor the U.S. Supreme Court would have been involved at all, but for another very serious violation of law. Operatives of the Florida Republican Party violated the federal Voting Rights Act by keeping a sizeable number of blacks from voting using inaccurate lists of disqualified felons. For the details, see the discussion in the first pages of this article, written in 2001.

People go on and on about the butterfly ballot, and Bush v. Gore, but the real tragedy of the 2000 election was the calculated and ultimately successful disenfranchisement of African-American voters. This is the real injury to democracy that occurred in 2000, and there is every sign that supporters of the current Administration are up to their old tricks again, not only in Florida, but in other states as well.

I consider myself second to no one in my disdain for the way the Supreme Court conducted itself in Bush v. Gore. But in the larger scheme of things, Bush v. Gore was small potatoes. The real injury to democracy in 2000, and the real threat today, is the theft of the franchise by political operatives who will stop at nothing to keep their party in power.