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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: Bush v. Gore reflections
“Stevens: Rationale for Bush v. Gore was ‘unacceptable’; The former Supreme Court justice speaks out on John Roberts and the case that decided the 2000 election.”
Maybe the issue is indeed one of appearances, but appearances, the “look” of things, can’t carry the work of revising the standard of constitutionally protected “independence.” Professor Briffault sets as his goal the higher ambition of “maintain[ing] the integrity of the contribution/expenditure distinction that has been a foundational part of our campaign finance law for nearly four decades.” His proposal certainly helps expose the futility of the distinction but is very unlikely to save it.
Bauer on McConnell on CU:
However one views his reform program, Professor McConnell is right on two key points of his defense of Citizens United. The decision in CU is shoddy work, and neither that decision nor any other the Court has issued in recent years has helped shore up a campaign finance doctrine built on the distinction between contributions and expenditures.
Bauer on Justice O’Connor on Bush v. Gore:
In Bush v. Gore, Justice O’Connor appears to have concluded that whatever moved the majority to intervene in the Florida recount cost too much in backlash against the Court. Caperton has not stirred up the same volume and intensity of complaint. In fact, many critics enraged by Bush v. Gore have an understandable soft spot for Caperton, taking it to be a step in the right direction—away from Buckley’s ill-fated contribution/expenditure distinction. But, on the fundamental question of how the Court makes election law, the two cases are much alike, even if Justice O’Connor has second thoughts only about one of them.
“Sandra Day Late: Retired Justice O’Connor regrets the Supreme Court’s lurch to the right. So why didn’t she stay and prevent it?”
Emily Bazelon muses on Justice O’Connor’s Bush v. Gore regrets.
“Sandra Day O’Connor: H.W. Bush Victory Was ‘Vital for the Court’; An old letter suggests she too once saw the Supreme Court as a political body.”
Linda Hirshman writes for TNR.
Here. My favorite: “She should give herself a break. I mean, who hasn’t made a mistake when adjudicating a landmark case?”
“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.
Looking back, O’Connor said, she isn’t sure the high court should have taken the case.
“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”
The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”
“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
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!
Sam Issacharoff and Rick Pildes have posted this draft on SSRN (forthcoming: Michael Alvarez and Bernard Grofman (eds), Election Administration in the United States: The State of Reform After Bush v. Gore, Cambridge University Press). Here is the abstract:
This essay provides a look at the legal landscape regarding the right to vote that has emerged in the wake of the 2012 elections. Courts have begun using Bush v. Gore to craft an intermediate form of equal protection scrutiny to address barriers to voting or the manipulation of voting requirements when the state’s justifications for these constraints are thin or unconvincing. The essay also focuses on the emergence of Early Voting as a central feature of current democratic participation and the ways in which courts have begun to understand Early Voting as a legal category. The essay serves as an epilogue to a social science volume on voting reform edited by Michael Alvarez and Bernard Grofman, Election Administration in the United States: The State of Reform after Bush v. Gore. The essay ends with a tentative assessment of the emerging new equal protection jurisprudence.
Can’t wait to read this!
In 2000, some scholars predicted the Supreme Court’s controversial equal protection holding in Bush v. Gore that the state could not arbitrarily value one person’s vote over that of another might be used to force states to improve their election processes through litigation. In the ensuing years, Bush v. Gore had not fulfilled that promise. Scholars debated when, if ever, the case could apply beyond the narrow facts of a statewide recount with inconsistent counting standards, but the courts seemed uninterested: the Supreme Court has failed to cite the case for any proposition, and the few lower courts which relied upon the case as precedent to create better and fairer voting conditions were overturned or limited. By 2007 I lamented the “untimely death” of Bush v. Gore.
A funny thing happened during 2012. The voting wars which had ensued since 2000 manifested themselves in a host of restrictive election rule changes passed in the name of fraud prevention and administrative convenience mostly by Republican legislatures and implemented by Republican election administrators. Democrats, the Department of Justice, and reform groups resisted the overreach, litigating over many of these changes. The results of this litigation was a mixed bag. For example, courts approved some voter identification laws, rejected others, and put Pennsylvania’s and Wisconsin’s laws on hold for this election season but perhaps not beyond that. Overall, it appeared that in the most egregious cases of partisan overreach, courts were serving, often with surprising unanimity, as a judicial backstop.
In Ohio, one of the twin epicenters (along with Florida) of the 2012 voting wars, two important cases relied in part on Bush v. Gore to expand voting rights. In one case, a conservative panel of the United States Court of Appeals for the Sixth Circuit—a court which had shown itself bitterly divided along party and ideological lines on election issues in 2008—unanimously held that Ohio’s disenfranchisement of voters for voting in the wrong polling location because of poll worker error violated the equal protection clause. In the other case, another Sixth Circuit panel held that Ohio’s contraction of the early voting period to exclude the weekend before the election, for all voters except certain military voters, violated the equal protection clause under Bush v. Gore. The court so held despite the fact that Ohio provided 23 days of early voting and for the first time sent all Ohio voters a no-excuse absentee ballot application. This latter ruling was at best a major stretch of Bush v. Gore and existing precedent.
The story of the 2012 voting wars is a story of Republican legislative and to some extent administrative overreach to contract voting rights, followed by a judicial and public backlash. The public backlash was somewhat expected—Democrats predictably made “voter suppression” a key talking point of the campaign. The judicial backlash, and the resurrection of Bush v. Gore in the Sixth Circuit, was not. The judicial reaction, from liberal and conservative judges and often on a unanimous basis, suggests that courts may now be more willing to act as backstops to prevent egregious cutbacks in voting rights and perhaps to do even more to assure greater equality and fairness in voting. However, it is possible that this trend will reverse in future elections.
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.
I have written this cover piece for the Sunday San Diego Union-Tribune opinion section. It begins:
It’s the election season, and the battle for the presidency and control of Congress is being fought not just through voter registration drives, endless campaign ads, and stadium rallies, but also in courts across America. Litigation over election rules has become increasingly commonplace since the disputed 2000 election in Florida, which led to the United States Supreme Court choosing George W. Bush over Al Gore. And as in 2000, the question of military voters and military ballots is back in the media and legal spotlight, with Republicans unfairly accusing Democrats of being anti-military.
A federal district court in Ohio will soon decide the Obama campaign’s challenge to an unusual Ohio law. The law allows military voters and overseas voters, but no other voters, the right to cast an in-person ballot in the three days before Election Day. Democrats argue that this law is unconstitutional because it “requires election officials to turn most Ohio voters, including veterans, firefighters, police officers, nurses, small business owners and countless other citizens, away from open voting locations, while admitting military and nonmilitary overseas voters and their families who are physically present in Ohio and able to vote in person.”
The claim that Democrats were trying to undermine the military vote was especially ironic. The only significant federal election legislation to pass out of Congress since 2002 was the MOVE Act, a bill championed by Democrats to extend military voting rights. Overseas military voter turnout is abysmal, and the MOVE Act was a small step in the right direction by requiring states to get ballots to military voters on time. Still, Republicans have repeatedly criticized the Obama Administration’s Department of Justice for not implementing the MOVE Act aggressively enough against states which have sought waivers from its provisions.
Perhaps the Democrats are willing to fight about military ballots this time because of how they got burned in the Florida 2000 dispute. As I detail in my new book, “The Voting Wars,”; during the recounts of the ballots lawyers for Gore had been fighting against the counting of overseas ballots which did not have a postmark showing a foreign mailing before Election Day. When Republicans got wind of this, they accused Democrats of being anti-military. Democrats asked vice-presidential candidate Joe Lieberman to put the controversy to rest, but he said on the NBC news program “Meet the Press” that military ballots received by county canvassing boards should be given the benefit of the doubt.
Grassley pointed out that many Americans now disapprove of the Supreme Court’s performance, and the healthcare decision did not improve its popularity. He cited a news account that showed Americans believe the decision was based mainly on the justices’ personal or political views, and only about 30 percent of Americans say the decision was made mainly on legal analysis.
When asked about the cause of that decline in public’s approval, O’Connor said: “I wish I knew.”
She speculated the Bush v. Gore decision was a tipping point. “It is conceivable because that was a very tense case that involved the holdovers from a very close election,” O’Connor said.
Justice Scalia Defends Citizens United, Campaign Disclosure, & Bush v. Gore; Says Gore Would Have Lost Anyway
Josh Gerstein reports.
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.
Synopsis: Justice Stevens Talks About Bush v. Gore Remedy, Equal Protection, and Partisan Gerrymandering
You can watch the video address to the American Law Institute via CSPAN.
Here is a brief synopsis. He began by describing the facts of Bush v. Gore, focusing heavily on “dimpled chad” and “hanging chads.”
He then criticizes some of the Supreme Court majority’s description of whether the Palm Beach County board changed its rules for handling ballot counting rules. He calls the majority decision “misleading” in some respects.
Justice Stevens says his principal point of his talk “concerns the absence of any coherent rationale supporting the opinion’s reliance on the equal protection clause.”
After an extensive discussion criticizing the majority’s opinion, he turned to partisan gerrymandering.
“If a mere defect in the standards governing voting recount practices can violate the state’s duty to govern impartially, surely it must follow that the intentional practice of drawing bizarre boundaries of electoral districts in order to enhance the political power of the dominant party is unconstitutional.”
He then criticizes the Court’s failure to adopt judicially manageable standards for reviewing partisan gerrymandering.
“The unwillingness of the Supreme Court majority to recognize those standards has left the category of intentional discrimination against voters unchecked, so long as the discrimination is predicated on political party, not race.”
He suggests relying on, among other things, the racial gerrymandering standards.
When asked during Q and A whether politics played a part in the Bush v. Gore majority’s decision, Justice Stevens responded: “I don’t know.”
So says Herma Hill Kay.
I have posted this draft on SSRN (forthcoming, St. Louis University Law Review symposium on teaching election law). Here is the abstract:
This short essay, part of a symposium in the St. Louis University Law Review on teaching election law, examines what it means to teach the Supreme Court’s opinion in Bush v. Gore to students who did not experience the 2000 Florida controversy as adults. It offers three approaches to teaching Bush v. Gore as history: (1) The Florida debacle as Rashomon; (2) Bush v. Gore and Equal Protection Law in the Supreme Court; and (3) Bush v. Gore as the Beginning of History.
This is still a draft very much in progress. Comments welcome!
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
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
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
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.