The Supreme Court
Election Machinery That Works
Most of us watched horrified as the fiasco unfolded in Florida while votes were being counted during the 2000 presidential election. News media first reported Gore the winner, switched to too close to call, then declared Bush the winner, then switched back to too close to call. I remember staying up all night amazed at the mess that was unfolding. Finally when all votes were in, the race was too close to call and an automatic recount was needed.
Florida was ripe for the kind of problems we witnessed. There were no statewide rules for how votes should be counted if a recount was necessary. The Florida law only states that a vote should be counted if clear “voter intent” could be discerned. Some counties believed that meant if a recount is needed all votes should be inspected manually, while others just checked their numbers, and still others ran the ballots through the counting machines one more time. Each county's election supervisor had the power to determine how the recount should be conducted. When the automatic recount was complete only 537 votes separated the two out of about 6 million votes cast.
Not only were there no rules about how to count votes, there were different types of voting mechanisms available in different counties. Some used paper ballots, some used optical-scanning equipment to count votes, some used punch cards, and some used lever machines. Even the ballots themselves looked different in every county. In fact, the butterfly ballot designed in Palm Beach County became the laughing stock of the nation when many voters became confused by the design and claimed they voted for the wrong person. Others voted twice when they realized they made a mistake.
Some speculate that Al Gore lost 20,000 votes because of the confusion surrounding this ballot, but since both parties had seen the design before the election and it was designed by a Democratic election supervisor, Gore decided not to take the case to court.
What Gore did decide to challenge was vote counts in three heavily Democratic counties (Miami Dade, Broward, and Palm Beach County) that used punch card machines, hoping to pick up enough votes to win the state and ultimately the presidency.
The vote study done after the election by a consortium of newspapers showed he would have been better off asking for a statewide recount. The study determined that, based on the prevailing statewide standard, Gore would have won the state. In fact, he would have won in five out of nine possible vote-counting scenarios studied, but would have lost based on the strategy of just recounting the three counties.
Thousands of votes had been discarded in the counties Gore picked because of problems with the punch card machines. The media had a field day showing election workers holding up punch cards to the light trying to determine voter intent on uncounted ballots.
Just to be sure you understand what was being questioned, when a voter hits the hole on a punch card for the chosen candidate a piece of the card, called a chad, is supposed to be discharged. Sometimes these chads are not fully discharged because of either voter error or machine problems. In fact, in Miami it was discovered after the election that the punch card machines in some areas had not be cleaned for eight years and the voters had difficulty dislodging the chads.
Just the Facts
Statewide it was finally determined that approximately 180,000 votes went uncounted in Florida for several different reasons, according to a million-dollar project done by the National Opinion Research Center after the election. This study was paid for by a consortium of newspapers that included The New York Times, Washington Post, Palm Beach Post, St. Petersburg Times, Dow Jones & Co., Sentinel Co., Tribune Co., and the Associated Press.
In defending his recount request, Gore's legal team found a statement in the 1982 patent application for the Votomatic punchcard machine that backed up his claim about machine problems:
“If chips are permitted to accumulate … this can interfere with the punching operations, … and occasionally, it has been observed that a partially punched chip has been left hanging on the card resulting in the machine becoming so clogged with chips as to prevent a clean punching operation. Incompletely punched cards can cause serious errors to occur in data processing operations utilizing such cards.”
Nine types of errors were found in the counties that used punch card ballots as they held up the uncounted cards to the light:
- Some ballots that were properly punched were not counted because of machine error.
- Some ballots could not be punched all the way because of machine problems.
- Some ballots were punched all the way but the voter failed to notice that the chad was still attached on one corner.
- Some ballots were punched all the way but the chad was still attached on two corners.
- Some ballots were punched all the way but the chad was only detached at one corner.
- Some ballots only had a pin prick that could be seen when held up to the light, but no corner had been detached.
- Some ballots had only dimpled chads. In other words there was an indentation but no light could be seen when holding up the card.
- Some voters wrote a name on the card rather than punching through the chad, which probably indicated some problem using the punchcard machine.
- Some voted for two candidates, which invalidated the vote. This was more common in Palm Beach County because of the butterfly ballot.
The Bush legal team filed a case in Florida's court system to stop the vote count, which made it all the way to the Florida Supreme Court. The Florida Supreme Court ordered a manual recount of all votes statewide and extended the deadline for certifying the election results by 12 days. The United States Supreme Court vacated that decision and sent the case back to the Florida Supreme Court for clarification of its decision.
The Supreme Court found that the Florida Supreme Court had violated Article II of the U.S. Constitution by changing the law enacted by the Florida legislature.
This decision amazed almost all Court watchers because the Florida Supreme Court did what has been done by courts throughout U.S. judiciary history. It found that two parts of Florida election laws passed by the state contradicted each other and tried to fix the problem. One part of Florida election law said that a candidate could challenge the vote in a county if there was an “error in the vote tabulation which could affect the outcome of the election.” Another part of the law mandated that results be submitted within a week of the election. This deadline made it impossible to do a recount in the specified time. The Florida Supreme Court tried to solve this problem by extending the deadline.
Fixing an inconsistency in the law is a very traditional role for the courts when laws passed by the legislature contradict each other. In fact, the precedent for this was set by Chief Justice John Marshall in Marbury v. Madison (which we discussed in Marshall Court) when he wrote for the court, “if two laws conflict with each other, the courts must decide on the operation of each.”
In asking for clarification, the United States Supreme Court sent a mixed message. It found that there were problems in the lack of uniform vote counting standards, but questioned the right of the Florida Supreme Court to fix the problem. The United States Supreme Court gave the message that only the legislature could fix the problem. Since there wasn't enough time for that, the Florida Supreme Court's hands were tied. When the Florida Supreme Court ordered the recount to be restarted, it ruled that the standard established by the Florida legislature must be used:
“In tabulating the ballots and in making a determination of what is a 'legal' vote, the standards to be employed is that established by the Legislature in our Election Code, which is that the vote shall be counted as a 'legal' vote if there is 'clear indication of the intent of the voter.'”
Following what it thought was the advice of the United States Supreme Court, the Florida Supreme Court did not try to rewrite legislation by changing the standards set by the Florida legislature. The vote count was restarted at 4 P.M. on December 8 and promptly halted at 2:40 P.M. the next day by the United States Supreme Court on the basis of another legal issue not even raised in the initial request for clarification—the question of equal protection. By stopping the vote count the Supreme Court decided the Florida election and ultimately who would be president.
The equal protection question had been raised by the Bush legal team in its original filing, but had been ignored by the United States Supreme Court in its request for clarification. Some think this was a trap for the Florida Supreme Court.
In an unsigned opinion the United States Supreme Court ruled:
The equal protection clause of the Constitution states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” This is most commonly used in cases involving the death penalty. To use this clause, there must be proof that someone is being harmed by not receiving equal protection under law.
“Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. … Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy.”
In its final decision, the United States Supreme Court said the Florida justices did have “the power to assure uniformity” and if they had there would be no equal-protection problem. The trap was set by the suggestion in the first ruling that warned against tampering with Florida election law.
Outrage over the ruling was widespread. While it's logical to assume supporters of Gore would blast the United States Supreme Court ruling, the bigger surprise came from the number of conservatives who supported Bush that denigrated the decision. Here are a few compiled by Alan Dershowitz in his book about the case, Supreme Injustice:
- Robert Bork (who didn't get confirmed for a seat on the Court) said, “the per curiam opinion joined by five justices does have major problems” and it “endorsed a new and possibly damaging rationale.”
- Bush supporter Richard Epstein (University of Chicago Law School) called the majority's ruling a “weird equal-protection theory” and the broadest “equal-protection test known to man.” He said, “this equal-protection dog [would bark] only once.”
- John Dilulo wrote in the conservative Weekly Standard, “the arguments that ended the battle and 'gave' Bush the Presidency are constitutionally disingenuous at best.”
- Michael McConnell wrote in The Wall Street Journal that the failure to seek a proper recount denied George Bush the “clarity of victory that he must surely desire” and that this “means, unfortunately that Mr. Bush will take office under conditions of continued uncertainty.”
History will probably place this ruling among those that live in infamy that we've already discussed—Dred Scott v. Sandford and the Lochner v. New York (Ebbs and Flows of Court Leadership). Even the justices who voted in favor of stopping the vote count wanted to limit the precedent set. The ruling limits its use as a precedent with this phrase, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Many asked when all this was over if the justices would have ruled the same way if Gore had been in the lead at the same point in the vote count. Would they still have stopped the count? We'll never know, but few doubt politics played a hand in this decision.