Category Archives: Bush v. Gore reflections

Emily Bazelon muses on Justice O’Connor’s Bush v. Gore regrets.

“When the Supreme Court first got involved I was shocked because Bush’s petition was moot. He had been certified the winner. I thought the justices would simply abate their action, and I was surprised they did not.”

—Former Florida Supreme Court Justice Charley Wells, on the first U.S. Supreme Court decision to intervene in the Bush/Gore dispute.

Here.

I just received my advanced copy of former Florida Chief Justice Charley Wells memoir of the 2000 Florida controversy. I blurbed this book and enjoyed it very much.  The one thing that’s missing—by design–is any description of the Court’s internal deliberations during those fateful days when the world did not know who would be the next American President.

At least the case may have precedential value at a high court somewhere!

Justice Scalia: Get Over It.

Scalia on BvG: “The remedy for the case is always in the court’s discretion.”

Enough to turn your stomach if you are old enough to remember 2000.

Andrew Rosenthal blogs at NYT’s Taking Note.

If Justice Stevens saw fit to tie Bush v. Gore to the partisan gerrymandering cases now, why did he not see fit to do so in his dissents in cases involving partisan gerrymandering. No Supreme Court Justice has cited the case in any opinion since the case was decided in 2000. Not even in a concurring or dissenting opinion.

So says Herma Hill Kay.

See here.

Today is the tenth anniversary of the Supreme Court’s decision in Bush v. Gore, ending the Florida recount and handing the 2000 presidential to George W. Bush. Here is a link to the reflections in this series:
Lyle Denniston, That Night at the Courthouse
Ned Foley, Bush v. Gore in Historical Perspective (Moritz)
Heather Gerken, Rethinking the 2000 Fiasco
Rick Hasen, Election Hangover: The Real Legacy of Bush v. Gore (Slate)
Nate Persily, Bush v. Gore in the American Mind
Rick Pildes, That Night Ten Years Ago
After reading Nate’s contribution, I wonder if the 20th anniversary will go even more unnoticed. In my Remedies class, I always teach about the most controversial stay order in history, the Supreme Court’s Dec. 10, 2000 order stopping the statewide recount of undervotes ordered by the Florida Supreme Court. I used to say to my students, with a great laugh: “There was a disputed election in Florida, you may have heard about it.” Now, ten years later, when I teach the same stay order, I say with a completely straight face: “There was a disputed election in Florida, you may have heard about it.” Many of those students were in middle school when Bush v. Gore was decided. In 2020, I’m guessing most students would have been in diapers when the case was decided. Time marches on.

Here is a guest post in my Bush v. Gore reflections series from Nate Persily.

Bush v. Gore in the American Mind
Nate Persily
On this tenth anniversary of the Supreme Court’s decision in Bush v. Gore it is worth examining how views of the decision may have changed since then and whether those views are reflected in contemporary attitudes toward the Court. This post describes results from a survey conducted by Stephen Ansolabehere and myself last summer, which included a question about Bush v. Gore. The full survey is available here. Amy Semet, Steve Ansolabehere, and I have a work-in-progress that discusses these results in greater detail and that we hope to post in about a month.
The short story is that we are still divided as a country when it comes to perceived fairness of the Court’s decision in Bush v Gore. We are divided by race, party and ideology. The decision, however, is fading in the public memory, as younger respondents and less educated respondents are more willing to say they do not remember the decision.
Our survey asked:
“You may remember that ten years ago the U.S. Supreme Court issued a decision in the case concerning the counting of ballots cast in Florida in the 2000 presidential election contest between George Bush and Al Gore. Do you think the Supreme Court decided the case fairly or unfairly or don’t you remember?”
Yes, it decided the case fairly — 33.7%
No, it did not decide the case fairly — 35.2%
I don’t remember — 28.4%
Refused to Answer — 2.6%

The breakdown of responses according to race, party, ideology, and Bush approval is available here. Ten percent of African Americans, as compared to 40 percent of whites, think the decision was fair. 79 percent of Strong Republicans but only seven percent of Strong Democrats considered the decision fair, which is about the same breakdown one sees on the question as between those who strongly approve or strongly disapprove of the Bush presidency. All of these variables are statistically significant in regressions in which perceived fairness of Bush v. Gore is the dependent variable.
For most observers, the public opinion question surrounding Bush v. Gore is whether the Supreme Court suffered at all in the public mind as a result of its decision. Most studies have found partisan and racial polarization in opinion toward the Court in the immediate aftermath of Bush v. Gore but a return to “normal” by September 11th 2001 if not before. (See Caldeira, Gibson and Spence, “The Supreme Court and the U. S. Presidential Election of 2000″, British Journal of Political Science 33:535-556 (2003); Mate and Wright, “The 2000 Presidential Election Controversy”, in Public Opinion and Constitutional Controversy (Persily, Citrin & Egan eds, 2008).
All such studies merely look at attitudes toward the Court (particularly “confidence in the Court”) and notice that the structure of support is similar to that existing pre-Bush v. Gore. No study, so far as we are aware, has looked at contemporary attitudes toward Bush v. Gore and related them to attitudes toward the Court. When we do so, we find the picture to be more complicated than conventional wisdom suggests. Our survey included questions on both confidence in the Court and job approval. (“Below is a list of institutions in this country. As far as the people running these institutions are concerned, would you say you have a great deal of confidence, only some confidence, or hardly any confidence?” The list of institutions included: the Military, the U.S. Supreme Court, Congress, Churches, Corporations, and the President. To measure approval, we simply asked “Do you approve of the job the U.S. Supreme Court is doing?”) Consistent with the conventional wisdom, the simple cross tabs display no significant difference in answers to these questions among those who think Bush v. Gore was fair or unfair.
In regressions predicting both confidence and approval in the Court, however, opinion on Bush v. Gore is statistically significant. For confidence, its effect is small, and overhwhelmed by general confidence in other institutions. For approval, the effect is much greater — and more substantial, for example, than opinion on Roe v. Wade. When holding all other political, ideological, and demographic variables at their mean, the probability of approving of the Court differs by about twenty percentage points between those who thought the decision was fair and those who thought it was unfair.
This finding surprises me, even to the point that I don’t yet believe it. It is also not obvious how one should interpret it. Does the fact that opinion on Bush v. Gore has some predictive power on approval of the Roberts Court in 2010 mean that the decision has had long-lasting effects? Or does opinion on Bush v. Gore serve as a proxy for something else, such as comfort or discomfort with the Court as a political institution? Moreover, are the cross tabs, which show no appreciable difference in attitudes toward the Court based on perceived fairness of Bush v. Gore, really more relevant in addressing the million dollar question whether the Court has paid a price in public opinion for its decision?
For those who could not care less about public opinion toward Court decisions, either because they view survey research as akin to astrology or as irrelevant in the context of interpreting the Constitution, the Indiana Law Review has just published a symposium on election law. My contribution — “‘Celebrating’ the Tenth Anniversary of the 2000 Election Controversy: What the World Can Learn from the Recent History of Election Dysfunction in the United States” is available here.

Here is a guest post in my Bush v. Gore reflections series from NYU’s Rick Pildes.

That Night Ten Years Ago
Rick Pildes
I can recall vividly where I was when the Court handed down its decision that night: in front of 20+ million people, live on television for the leading news network, NBC News, charged with the role of immediately interpreting and explaining the decision to the country — but without a copy of the actual decision to rely on. In an image that remains iconic of that night for me, two of NBC’s top reporters stood on the steps of the Court, lit up by television lights and framed by the deep-black of a December’s night sky, as they took turns reading out loud paragraphs from the Court’s decision. As I tried to absorb the words and quickly decipher the overall meaning of the Court’s decision, Tom Brokaw came to me, the camera went live, and I was asked whether this meant still more legal maneuvers remained ahead or that the election was over.
To give you a fuller picture, I was sitting by myself with one cameraman in a small room called “the nook.” In the 34 or so days leading up to that night, I had insisted on having the actual texts of legal decisions in front of me before commenting on them, and NBC had always been happy to accommodate that. But in the frenzy of that night, I hadn’t received a fax of the decision; I had to rely on the paragraphs our reporters read aloud live. NBC understandably had Tom Brokaw presiding alone down the hall at command central. Isolated in my “nook,” I had no idea what anyone else was saying about the decision — but there would have been no time to pay attention to that in any event, given the pressure to be the first to break the news.
I had gotten to this point through a surprising path. Although I was an expert on election law, I had no media experience I can recall before the 2000 election dispute began. I would have had little opportunity for it, for I was teaching at the University of Michigan, in the small town of Ann Arbor, and happened to be in New York as a visiting professor at NYU School of Law in the fall of 2000. In the first few days after the election, I was asked to appear on a number of different stations, including local NBC in New York. After those initial days, I received a call from the national news desk of NBC and was elevated overnight to the highest-stakes level of network news; I became the legal analyst of the election dispute for NBC’s “Breaking News” team. That was the team, led by Tom Brokaw, that would cut into existing programming and go on the air live to cover any breaking development in the election saga. I was struck by the almost complete absence of any training I received for any of this; I was given a few quick tips and then just put on the air live. Teaching large law-school classes turned out to develop skills that translated well to live television, or so I assume NBC concluded. I will always remember the kind words of Tom Brokaw coming into my earpiece to calm me just before my first major appearance.
I want to reflect more on that general experience here, since I have never put down any thoughts about it before. When I started, I confess to not having had any sense of the differences between the three major network anchors of the time (at a time when anchors still mattered) — Peter Jennings, Dan Rather, and Tom — nor of the differences between the networks in the news area. I didn’t know of NBC’s longstanding position as the leading news network, nor of Tom’s history or reputation. I would have felt lucky to be cast into this role in any context, but the more I learned and discovered, the more fortunate I felt. Although I am skeptical and critical by nature, I discovered that Tom Brokaw had almost a photographic memory for news and American politics, that he was a wonderfully generous person of great integrity and decency, and that he had a seriousness of purpose I could easily respect (he ended up playing a role in my decision to come to NYC, as he explained his decision to switch his career from LA to NYC many years earlier). So too with the production people on the Breaking News team: I can recall many occasions on which I spent two or three hours with them after we were off the air, just because they wanted to understand more deeply everything going on in the courts. NBC was willing to respect my request to appear as an independent, academic expert, rather than to be put into any position in which I would be pushed into assuming any kind of partisan role. And unlike most television commentary, which feels fleeting I have since discovered, this was a moment at which it felt the virtually the entire country was engaged in the same sustained conversation and debate over more than a month. To play a role in helping people understand those issues, working with the people I did, was deeply gratifying.
Fortunately, I managed to get the Court’s decision right in that high-stakes moment ten years ago tonight. A few months later, NBC’s Breaking News Team was nominated for an Emmy for our coverage of the night of the Court’s decision (when I was called, I asked whether that meant I would get one of those little gold statutes if we won, and I recall just about falling out of my chair when the answer was yes). But at the awards dinner, I was told the word was that all the judges could not stomach looking at video of anything to do with the disputed election just a few months later. Indeed, not a single news Emmy was awarded for anything having to do with coverage of what was obviously one of the major news events of the year, at the very least, the 2000 election dispute.

Here is a guest post in my Bush v. Gore reflections series from Yale’s Heather Gerken.

Rethinking the 2000 Fiasco
Heather Gerken
I’ve changed my mind about what happened during the 2000 presidential election. Like most people, I was sure at the time that the brouhaha was a sign that Florida was one of the worst-run election systems in the country. Now I am sure of only one thing: we don’t really know whether Florida was an outlier or just happened to be a state where the election was close.
It’s easy to draw the wrong inference from an election crisis. We see a problem that isn’t happening elsewhere, and we take that crisis to be proof that the system isn’t working. But just as you can’t measure annual rainfall based on how often lightning strikes, you can’t assess the health of a system based on whether an electoral meltdown has occurred. The problems we saw in Florida in 2000 and Ohio in 2004 occur across the country. The key difference is that those elections were close enough for those problems to matter. As I’ve argued in my book, The Democracy Index: Why Our Election System is Failing and How to Fix It, we need reliable, comparative data before we can decide whether Florida and Ohio were outliers or not, before we can rest easy that our own state’s election system is working well.
In a world without data, we don’t just make mistakes in identifying where problems exist; we make mistakes in identifying what caused them. Without good data, election administration is a black box — we see a problem, we don’t realize that the same problem is occurring in many places where the election isn’t close, and we all too quickly assume that the people in charge must be engaged in egregious partisan manipulation.
Good comparative data would help here as well. It would tell us whether an election crisis is caused by bad faith or by the problem that afflicts most election systems: inadequate funding. Most election administrators are trying to do a very hard job with very little money. Little wonder that problems occur. Computer programmers often invoke a rule called “Hanlon’s Razor”: never attribute to malice that which can be adequately explained by stupidity. If we had better election data, I think we’d develop a different rule: never attribute to malice and manipulation that which can be adequately explained by money.
To me, what is most striking about the last ten years since Bush v. Gore is how little progress election administration has made in catching up to the rest of the public sector (MIT’s Charles Stewart wrote much the same thing in 2006). Data-driven management is ubiquitous. It is the only way to distinguish between a glitch and a trend. It is the only way to identify the drivers of performance. It is the only way to be confident that reform is working. Yet election administration — which easily lends itself to measurement — lags far behind both most other areas of public administration. The new generation of election administrators and organizations like the Pew Center on the States have done a tremendous amount of work to move us forward. But there’s a great deal more work to do.
If we were to draw one lesson from the 2000 brouhaha, it ought to be this: the best way to avoid another Bush v. Gore is to build a well-functioning election system. And the first step in that direction is to collect decent data. Getting better election data may seem like a modest reform. But it’s the type of modest reform that makes bigger, better reform possible.

Here is the first of a series of reflections I’ll be posting about the tenth anniversary of Bush v. Gore. This one comes from one of the most thoughtful Supreme Court reporters, SCOTUSBlog’s Lyle Denniston.

That night at the Courthouse
Lyle Denniston (in 2000, the Supreme Court reporter for The Baltimore Sun)
Not every one who had been watching Bush v. Gore unfold after election day was convinced that the Supreme Court had to decide the issue once and for all before the end of the day on December 12, 2000. However, the Court had signaled eight days earlier, in its first decision overturning the Florida Supreme Court, that it was operating with that deadline in mind.
It would turn out, of course, that some Justices believed that the deadline was not hard and fast, and that another six days would have been available to conduct a wider recount of the Florida ballots. That revelation, however, would only come out with the release of the decision in Bush v. Gore itself, so reporters in the Court’s press room the night of December 12 fully expected a final decision before midnight.
The feverish activity of the preceding 35 days had left the Court and its staff deeply stressed, since no one of the Justices and no one working for them had ever operated under such heavy and sustained pressure. The quality of legal advocacy, on both sides of the dispute, had been impressive, indeed, and especially so given how little time there was to prepare between each stage of the case’s movement up and down through the state and federal courts.
However skilled a team of lawyers can be when mobilized for emergency duty, it was clear to anyone who observed the Justices up close through the process that they were not likely to do their best, and that the final outcome — whatever it was — would probably be very untidy and would have no chance of settling the political side of the controversy. What a majority of the Justices wanted was a result, and they were determined that it be reached and announced on December 12. Only if one believes that a majority actually wanted George Bush to be the winner — and the author of this post does not believe that — could one assume that the whole process was being driven toward that specific end. What was driving the majority, perhaps more than anything else, was the spectre of the 1876 election, which dragged out until almost Inauguration Day. There was, it was clear, a firm determination not to let that happen again.
And, though never publicly expressed, there was, inside the Courthouse, a pervasive sense that the issue had clearly moved beyond a possible congressional resolution: it was seen as a constitutional crisis, and demanded a constitutionally determined result.
The courthouse itself was not the serene, polished marble palace that it normally is. It had not been, for days.
Outside, the television trucks dominated the street scene, and the kleig lights set up on the Court’s plaza bathed the courthouse at night in an eerie blue light, so bright that the scene looked more than anything else like a hostile border checkpoint in the midst of a battle zone. Inside, the hallways on the first floor, where the press was operating, were strewn with food packages, discarded soda bottles, and uneaten pizza — the familiar offall of any scene where television crews and their platoons of intern acolytes have taken over a story. (There must be almost a law of nature that dictates how many boxes of pizza it takes for television to cover a major story.)
At the end of the corridor where the press room is located, reporters engaged in exchanges of unfounded rumors about what was happening. One TV reporter went on the air with a report that a member of the Public Information Office staff was coming down the hallway, carrying a can of soda. There was actually some physical jostling going on, whenever the PIO staff moved around, causing reporters to press in closely to see what the movement meant — which, usually, was nothing.
Reporters unfamiliar with the sometimes arcane procedures of the Supreme Court were fretfully interviewing the veterans, to understand what the Court might decide, and how it might do it. In one corner of the press room, three reporters wrote down on slips of paper, tucked into an envelope, stating their own, private predictions of what the Court would decide. One of those slips, indeed, would have it exactly right.
A few minutes after 10 p.m., two members of the Court’s PIO staff left that scene, and went down the hallway to the Clerk’s office — a hint, though not a truly reliable one, that something of consequence was about to happen. Shortly, they ran up the hallway, stormed by reporters — who had lined up in a sequence that had been agreed upon beforehand, with wire service and broadcast reporters closest to the front of the line, which quickly dissolved into pandemonium. PIO staff usually gives no guidance whatever when they hand out an opinion. This time, however, one of them called reporters’ attention to a specific page number.
That was the page where the Court’s majority opinion, in conclusion, said, “The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.”
It would turn out to be, for some of the reporters, a baffling conclusion. Some, not so familiar with the Court’s norms, immediately assumed that the contest was not over. The phrase, “remanded for further proceedings,” led some, on cellphones with their editors, to say that the Court had opened the way for further recounting, or at least some other activity with the Florida ballots.
But for others, that language, by itself, was inconclusive. Reporters more in the habit of working with Supreme Court opinions quickly scanned over the pages of the majority. What stood out quickly, for these journalists, was this statement: “Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.”
That was it: the election was over, because the case was over. Nothing of import, in reality, was left for the Florida Supreme Court to do in any “further proceedings.” The Supreme Court had barred any recount, so the “further proceedings” mentioned would be nothing more than the ministerial act of a state court closing down its own review of the election results, bowing to the Supreme Court.
The author of this post, immediately on the telephone with his Washington Bureau chief, said it was over, but it took perhaps another ten minutes of conversation to convince the chief. He had been watching the breathless early accounts of TV reporters, who were saying into their live cameras that the Court, in its bottom line, had ordered the Florida Supreme Court to do something more.
The crisis, so far as it was a constitutional crisis, was over. The Court’s majority, in a sentence just before the one closing the opinion, had at last made clear why it believed it, and not “the political sphere,” was having the last word. The sentence read: “When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”
It would convince none of the critics, then or since.

Another must read post from Ned Foley, who has an interesting connection between BvG and Reynolds v. Sims, as well as Justice Harlan’s largely forgotten dissent in Taylor v. Beckham and the 1948 election between LBJ and Coke Stevenson-