The outcome of Florida’s presidential election of 2000 is highly controversial for a number of reasons. In a contest in which Floridians were almost equally divided between the two main candidates, the confusing nature of many of the voting machines and ballots resulted in a significant number of votes not being counted, and many African Americans alleged that they were harassed and even prevented from voting. To make matters worse, both Republicans and Democrats accused the courts of abusing their powers and promoting partisan agendas. Republicans and conservatives asserted that the Florida Supreme Court failed to follow the intent of the law when it ordered a hand recount. Democrats and liberals were even more vociferous in their denunciations of the U.S. Supreme Court’s ruling in Bush v. Gore, which by a 5-4 margin suspended the recount and made it inevitable that Bush would be the next president.
Although it is often said that history is the province of the winners, the writings about the election deadlock of 2000 have generally reflected the point of view of the losers. For example, lawyer and author Alan Dershowitz has published a book with the provocative title Supreme Injustice: How the High Court Hijacked Election 2000. Not to be outdone, another well-known lawyer and author, Vincent Bugliosi, asserted an even stronger thesis in his title, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President. Both authors accuse the five justices of the majority of basing their ruling on an inapplicable constitutional provision and of serving as a surrogate for the Republican Party rather than acting as an impartial arbiter of the law.
Richard Posner’s Breaking the Deadlock, in contrast, presents a qualified and unenthusiastic defense of the Supreme Court’s ruling in Bush v. Gore. Posner, a conservative jurist and an advocate of judicial pragmatism, concedes that the Court’s “equal protection” rationale for the decision was inadequate, but he argues that a more cogent constitutional argument was available. He also concedes that a slight majority of Floridians probably went to the ballots with the intent of voting for Al Gore, although he emphasizes that the U.S. Constitution does not require that the president be selected by the will of the majority. Posner’s defense of Bush v. Gore is based primarily on a pragmatic consideration. The deadlocked election, according to his analysis, threatened to produce a bitter political and constitutional crisis that would have been more messy and divisive than the judicial settlement.
The book is organized into five chapters. The first chapter presents an overview of the process for electing presidents, including its history and ruling principles. Chapter 2 tells how the election was conducted in Florida on November 7, and explains the complications associated with various voting machines, especially the confusing design of the butterfly ballots and the problems with counting punch-card “chads” (small squares) not properly removed. Chapter 3 gives a narrative account of the eight major judicial decisions that grew out of the deadlocked Florida election. The fourth chapter critiques the legal arguments and behavior of the judges, lawyers, and politicians who participated in the five-week contest. The final chapter considers various proposals for electoral reform.
Posner’s analysis of Florida’s popular vote appears to be accurate and nonpartisan. Of the 6 million votes cast, there were some 60,000 undervotes (ballots lacking a properly designated vote for a candidate) and about 110,000 overvotes (ballots including votes for more than one candidate). When only the ballots not having any voter mistakes are tabulated, Florida’s election was almost a “statistical tie,” with Bush prevailing by less than four hundred votes. Citizens having limited education and limited voting experience were especially likely to make mistakes that invalidated their ballots, and these voters disproportionately favored the Democratic candidate. Posner observes that African American voters increased from 10 percent in 1996 to 16 percent in 2000, producing a large number of inexperienced voters, most of whom supported Gore. The confusing butterfly ballot of Palm Beach County, ironically designed by a Democratic official, probably took enough votes away from Gore to cost him the election. Several months after Breaking the Deadlock was published, a newspaper consortium that investigated the spoiled ballots announced results that generally agree with Posner’s conclusions.
Judge Posner maintains that the two key decisions of the Florida Supreme Court were “unreasonable” and misconstrued the state’s election code. The first of...
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