“The American people have spoken,” said President Bill Clinton shortly after Election Day. “It’s too bad it’s going to take a little while to determine what it was they had to say.” (BBC News)
On the morning of November 8, 2000, Americans across the country awoke to reports that there was no apparent winner of the Presidential election held the day before. Vice President Al Gore and Connecticut Senator Joe Lieberman headed the Democratic ticket. Texas Governor George Bush and former Secretary of Defense Dick Cheney headed the slate for the Republicans. In the final days leading up to the election, polls showed Bush and Gore running neck and neck, too close to call. Confounding the situation was the attractiveness of third party candidates such as Ralph Nader of the Green Party and Patrick Buchanan’s Reform Party. The outcome from election night certainly promised to be quite riveting. And they were. For weeks after the election, the question of who would be the next President of the United States was uncertain. The 2000 presidential election resulted in the strangest and most mystifying vote count in American history. The election’s closeness, combined with the aftermath of bitter partisan politics has left a legacy of controversy. At the center of the dispute was the state of Florida, and most notably Palm Beach County. After more than a month of recounts, lawsuits, and court decisions, the Supreme Court of the United States rendered a decision on December 12 that ended the process of vote recounting and brought the election, but not the debate, to a close. The following report details and analyzes several key events that transpired over the thirty-six days since the American public went to the voting booth in the presidential election of 2000.
The networks and cable news outlets started forecasting winners of individual states by7pm Eastern Standard Time. Vermont was first, with the exit polls showing the state securely being for Gore. Other states were rapidly called for one side or the other, including Florida into Gore’s camp. As always, the news outlets had promised, not to call an election until all of the polls in a certain state had all closed – one problem in Florida is that part of the panhandle is in the Central time zone, and when Florida was called, some polls were still open (Sammon). John R. Lott, Jr., a senior research scholar at Yale University Law School stated, “By prematurely declaring Gore the winner shortly before polls had closed in Florida’s conservative western panhandle, the media ended up suppressing the Republican vote”. Lott concluded Bush’s loss at a “conservative estimate of 10,000 votes”. (Sammon). As the night wore on, the networks started to equivocate on Florida – though polling stats showed Gore ahead, actual returns were beginning to show George Bush with the advantage. The networks that had originally called Florida in Gore’s favor now recalled their early decision, and moved it back into the undecided column by 10:00 PM. The electoral count was all even at 242 votes apiece. Only Florida’s 25 electoral votes were still undecided. Finally, at 2:15 AM, seemingly the Florida vote had swung in Bush’s direction. All the networks and cable stations declared Bush the winner of Florida, and the next President of theUnited States! Shortly after this, Vice- President Al Gore spoke with George Bush and conceded the election to him. However, before Gore publicly gave his concession speech, Bush’s lead began to wane, at one point down to only 200 votes. Gore’s advisors told him that it was too close, and Gore had to call Bush to rescind his concession. Once again, the news stations flip-flopped; taking Florida out of Bush’s column and placing it back into the undecided group (US Constitution Online).
Out of almost six million people who had cast their ballots, Bush ended up with an advantage of 1700 votes. Results that are that close in margin are subjected to a recount byFlorida state law. (US Constitution Online)
The Democrats decided to pursue the courts to mandate vote recounts in counties where aberrations in ballot counting was alleged. Expressly, the Democrats were concerned about the failure to count votes where ballots were punched halfway through to indicate a candidate choice, hence the infamous “hanging chads”. Democrats also grumbled that perplexity over the “butterfly ballot” used in Palm Beach and Dade Counties caused many Gore-Lieberman supporters to mistakenly vote in the wrong column due to the confusing ballot layout. It should be noted that Theresa LePore, a Democrat, designed the “butterfly ballot” (NNDB) (See Figure 1). It was also approved by leaders from both political parties. Sample ballots were both mailed to registered voters and appeared in various Palm Beach County newspapers. This so-called butterfly ballot design was the source of complaints by many, mostly seniors, that the ballot was confusing and charges that the design caused an abnormally high number of votes for Buchanan in Palm BeachCounty (Sammon). It is interesting to note that Pat Buchanan received approximately 8,000 votes in the 1996 Presidential election in Palm Beach County, compared to the 3400 votes he received in 2000 (Butterfly Ballot Cost Gore the Whitehouse).
Swift recounts promptly followed Election Day, and in doing so the final vote tally changed from a surplus of over 1700 votes for Bush to one of just over 300 votes. In Palm BeachCounty, 19,000 ballots were found to be flawed and were rejected. There was a call for a revote by many Floridians (US Constitution Online). A revote in Florida, however, would be detrimental to our nation’s democracy. Such an unprecedented event would produce instability and would undermine the electoral process. A chain reaction can erupt; state after state issuing re-votes due to voter irregularities. Intimidation at the ballot box would be ever more prevalent. Citizens would be rushing to the polls and those that knew the holes in the system had the ability to circumvent proper identification, illegally voting multiple times. It would have been reminiscent of a modern day “Bleeding Kansas.” But on November 20, 2000, the motion for a revote was denied. The Gore campaign began to demand court hearings on the issue of allowing the manual recount of votes to commence. Gore declared he wanted every vote cast to be counted. (American Presidency Project)
As the recounts activated, the nation watched and waited. With such a small margin of victory, anything could happen. Different balloting methods were examined and called into question, including one done by punching perforated holes out of ballot cards.
The Florida controversy sparked interest in other states that began presenting incongruities. For example, election managers in New Mexico uncovered a programming glitch that launched Bush into the lead. The margins were so slight that a recount had been ordered. At times, only four votes separated the two candidates until another glitch had been discovered assuring Gore’s victory of New Mexico. Both camps kept close watch on other states that might warrant recounts such as Oregon and Ohio-crucial states that could turn the tide of the election to either candidate (US Constitution Online).
One key component that overwhelmed the Florida controversy had been the irregularities over the absentee ballots. Overseas absentee ballots suddenly became supremely important and contentious. Florida, by law, did not finish counting them until November 17. With several thousand ballots sent out, and more coming back all the time, they could make for a decisive win one way or the other. Gore’s camp sought to invalidate over 25,000 absentee ballots in counties that were held heavily by Republicans. Gore’s lawyers claimed that many of the absentee ballot forms were incorrectly filled out and had been illegally completed by election managers. Two separate lawsuits developed—one in Martin County and the other in Seminole county (Kasindorf).After several failures in lower courts, Gore appealed and the Florida Supreme Court accepted the cases. However, the state Supreme Court dealt the final blow by supporting Circuit Judge Terry Lewis who was quoted saying:
Despite the irregularities, the sanctity of the ballot and the integrity of the election were not affected. (Kasindorf)
Both the Martin and Seminole County lawsuits had been defeated, posing a large threat to the success of Gore’s campaign (Kasindorf). The valiant behind the scenes efforts by Al Gore and his advisors to suppress the military vote because a postmaster failed to adequately postmark their ballots seems highly hypocritical of his pronunciations that he wanted every vote to count. In aNovember 27, 2000 speech, Gore declared, “ignoring votes means ignoring democracy”. Gore’s aspiration to sound righteous and magnanimous may have scored some points with his most ardent supporters. His partisan followers enthusiastically accepted his charge that George W. Bush was afraid of a straightforward recount. But Gore’s relentless attempts to keep the military votes from being counted render his argument as somewhat specious. A five-page memo from the Gore organization spelled out specific directions to Democrats in every Florida county on how to protest military ballots on technicalities (NewsMax). Then they dispatched attorneys to the counting courts around the state to challenge each vote with the sole and deliberate intent of disenfranchising as many as possible of our young men and women in uniform.
Gore often stated that it is the intent of the voter that is important. Yet in the case of the overseas military ballots, in which there is very little question about the intent of the voters, he insisted they were illegitimate if they lacked a postmark, even though the armed forces mail does not require postage and is often not postmarked (NewsMax).
Disenfranchisement of Black voters became a heated issue during the 36 day melee. Gore’s campaign, backed by black leaders such as Jesse Jackson, spouted accusations that a million African Americans were stripped of their right to vote in Florida. Other allegations included voter intimidation and harassment. The Republicans responded calling the accusations outrageous and irrational. Gore attempted to counteract opposing arguments by stating that there had been an increase of “spoiled” or “tainted” ballots (Kirsanow). However, by examining statistics of previous elections, the obvious is revealed—there is no anomaly among the number of spoiled votes. In fact, the percent of invalidated ballots nationwide is between two and three percent;Florida had three percent—no surprise there. Only four years earlier, it had been 2.5 percent. Furthermore, the entire state of Florida contained 125,000 discounted votes while the city ofChicago mustered 174,000. A six month investigation undertaken by the US Commission of Civil Rights discovered no evidence whatsoever of any unusual or unexpected violations of the 15thamendment (Kirsanow). Yet again, Gore was shut down and forced to seek other avenues to win the Sunshine state.
The Florida Secretary of State Katherine Harris bolstered by a Florida Supreme Court ruling insisted all certified election returns must be in to her office by 5:00 PM on November 14, 2000 (by Florida statute, one week following the election). In the certified returns, Bush held a 300-vote lead (US Constitution Online).
The controversy however continued to simmer around two crucial points in Florida. The first issue centered on the legality of some counties performing a manual recount of ballots. The second point was in regards to the legality of the Florida Secretary of State to reject the recount totals after the statutory deadline had passed. Several counties were counting ballots by hand, aided by a brief ruling from the Florida Supreme Court that said they could proceed (US Constitution Online). However, the left-leaning Florida Supreme Court failed to acknowledge the issue regarding the rejection of recount numbers that missed the deadline. Bush’s lawyers worked fervently to establish their point of view; manual recounts were prone to human error and deliberate tampering. The Democrats replied by stating that hand recounts were the only way to ensure accurate numbers. Despite the fact that the Florida Supreme court ruled in favor of the Democrats, Bush’s lead increased to 930 votes statewide, essentially due to his commanding advantage in overseas absentee ballots. Regardless, many counties pressed on with their manual recounts (US Constitution Online).
Florida Secretary of State Katherine Harris certified George W. Bush the winner ofFlorida’s 25 electoral votes on November 26th. Palm Beach County failed to finish counting ballots before the deadline and tried to send in partial recounts while pleading for additional time. Secretary Harris denied both the partial recounts and the request for more time. Palm BeachCounty’s previous recount submission was used in its place. The Florida statewide vote 2,912,790 for Bush to 2,912,253 for Gore, or a difference of 537 votes was certified (CBS Election Results Chart) (See Figure 3).
The Bush camp was elated, while the Gore camp was angered, mostly on the subject of the disallowing of the Palm Beach recounts. They were not quite ready to throw in the towel. After several more failed attempts in various county courts to continue the recounts, it now came down to the Florida Supreme Court. It was now Friday, December 8th and the fateful day of December 12th was looming on the horizon. That is the date set by United States law for electors to be appointed from each state. Most legal experts agreed that the date was inflexible. The Florida Legislature prepared arrangements to conduct a special session to select those electors if the situation was not resolved by the deadline (US Constitution Online).
The Florida Supreme Court heard arguments from both the Bush and Gore organizations on November 20th. The Gore side hammered away that there is no rush to the certification of the election, since US law states that electors do not need to be appointed until December 12 giving the counties that desired to do recounts plenty of time for their completion. The Bush side contended that the more time that goes by, the greater the probability for fraud in the recount system. They also contended that the deadlines for counts and recounts are purposely laid out inFlorida statutes; and that the courts cannot trample on the inherent rights and responsibilities of the executive branch to carry out the certification of the election complying with the law that was approved by the legislature (US Constitution Online). For nearly two days, the Court considered the matter. The Court did rule on November 21st ordering the Florida Secretary of State to receive returns from counties doing recounts, however a deadline of no later than 5 p.m. on November 26th was put in place. The Court did not address the important issue of the countability of the ballots. The date chosen by the Court was designed to allow ample time for manual recounts to be finished, and to allow ample time for either candidate to protest the results under Florida law, and still meet the December 12th date set in US law for the appointment of electors.
In an astonishing decision, the Florida Supreme Court with a 4-3 split vote, ruled that all undervotes in the entire state would have to be recounted. The recount was to begin immediately. However Gore’s victory came to a screeching halt the very next day as the United States Supreme Court stepped in and stopped all recounts with a 5-4 ruling. They called for hearings to be held on December 11th, on the constitutionality of the Florida Supreme Court’s ordering of the recount. The U.S. Supreme Court convened on the morning of the 11th. Bush’s attorneys requested the court to uphold its stay of the recounts. It called the Florida Supreme Court’s recounting scheme “arbitrary, capricious, unequal, and standardless,” and a violation of the Article 2 powers of the state legislature to decide how electors are to be chosen. The Gore camp reiterated that the Florida Court was following the laws granted by the Florida legislature, and pressed the U.S. Supreme Court to decide quickly so that counting could be finished before the December 12th deadline for selection of electors (The United States Supreme Court).
On December 12th, the Florida legislature could wait no longer. The house voted 79-41 to affirm the Bush slate of electors to ensure that Florida was to be represented in the Electoral College (US Constitution Online).
At 10 PM, the United States Supreme Court rendered what were to be the final decisions on the 2000 Presidential election. The first ruling was a 7-2 vote that stated the Florida Supreme Court had erred when it called for a statewide manual recount. In a close but hardly unusual 5-4 vote, it declared that the counting of the undervotes only amounted to a violation of the Constitution’s Equal Protection Clause (The United States Supreme Court). It did state that Gore could utilize other remedies, but it could not include a recount. Essentially that meant the election battle was finally over. The next day Al Gore addressed the nation, accepted the decision of the US Supreme Court, and pleaded with the country to unite behind our next President-George Bush.
A close look at the decision of the Supreme Court of the United States reveals the incisiveness of the ruling. The Supreme Court noted that 2% of persons voting in Presidential election across the nation did not register vote for President, either deliberately or by a voter error. The Court did specifically state in their opinion of the ruling:
In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements. (The United States Supreme Court)
It is evident that the Court was clearly referring to the process of the Punch Card ballot machine that may reject incomplete or incorrectly punched ballots. The Supreme Court’s decision predominantly centered on the Equal Protection Clause of the Constitution. The Court correctly viewed the Florida Supreme Court as having set new standards for resolving Presidential contests. Specifically, they chastised the State Supreme Court in a multitude of ways, all leading to violation of the Equal Protection Clause. They cited the fact that the State Supreme Court allowed votes to be recounted with varying standards to determine what a legal vote is. In fact,Broward County had a much more lenient standard of acceptance of a tainted ballot than that ofPalm Beach County. This would result in an uneven voting process certainly violating the Equal Protection Clause (The United States Supreme Court).
In addition, The Florida Supreme Court’s decision provided no guarantee that the recounts included in a final certification must be complete. The acceptance of partial recounts being included was a problem for the US Supreme Court:
The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees. (TheUnited States Supreme Court)
Once again, The Supreme Court issued a correct ruling in not permitting partial vote tallies from counties to be certified. Furthermore, The US Supreme Court had a problem with actually who would perform the recounting of the votes. They were concerned that ad hoc teams of judges with no specific training in analyzing ballots would be interpreting the ballots. They also had issues that while some judges would be there from an observer status, they did not have the right to object to the proceeding. It is clear that the process ordered by the Florida Supreme Court does not meet the necessary minimal requirements to protect the individual voter in this extraordinary statewide recount (The United States Supreme Court).
The most compelling portion of the United States Supreme Court ruling focuses on interpreting the intent of the voter. Since much of the controversy surrounded the ballot cards, the interpretation to discern the true intent of the voter punching the ballot needed to be performed. The Florida Supreme Court had ordered the intent of those ballots be ascertained. Again, the US Supreme Court precisely shot down the lower Court’s ruling by stating:
The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary. (United States Supreme Court)
As we know, there were no specific standards in place and certainly, there was not nearly enough time to agree on a statewide basis to implement new standards. Also, as earlier stated the lack of time does not trump constitutional guarantees. Without the necessary standards, the Supreme Court had many issues on potentially unqualified individuals making determinations on voter intent by looking at scratches and holes on a cardboard piece of paper. The Court further went on to explain that the lack of uniform rules could produce variances in not only from one county to another, but indeed from within the same county as well. They provided an example of a witness who testified that he saw three members from the Miami-Dade canvassing board applying three different standards in recounting the votes. Also, in Palm Beach County they had started with a 1990 standard used for recounting, then changed that guideline, only to go back to the 1990 standard again and finally abandoning any true standard. It is obvious that the United States Supreme Court’s problems with the violations of the Equal Protection Clause are valid. The Court declared:
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. (United StatesSupreme Court)
The Court found that the State did not have in place the “necessary safeguards” to ensure equal protection. The United States Supreme Court found that the State Supreme Court in ordering a statewide remedy did not provide assurance that “rudimentary requirements of equal treatment and fundamental fairness are satisfied.” Thus, the judgment of the Florida Supreme Court was reversed.
The US Supreme Court’s overturning the State Court’s ruling amounted to a judicial spanking. The entire makeup of the Florida Supreme Court consisted of Democrat judges. Throughout the entire 36-day controversy, it is quite clear that they had acted more out of partisan motives than providing constitutional protections. It is argued that the US Supreme Court also voted in a partisan block. However, the preciseness of their well thought out conclusion, repudiates that argument. The United States Supreme Court is made up of conservatives, liberals and moderates. It is important to remember that the US Supreme Court voted 7-2 that there are constitutional problems with the recount ordered by the Florida Supreme Court ruling. The closer 5-4 vote was in the decision to halt the recount, because there was not sufficient time to put into place the necessary procedures to ensure the constitutionality of the recounts.
The presidential Election of 2000 has taught us valuable lessons for future contests. This election produced the rarity that George Bush, the declared winner, actually received a lower popular vote tally than his adversary, Al Gore. However, the “rules of the game” state that the next President is based on receiving a minimum of 270 electoral votes. There has been much contention from the left regarding this issue. But the rules cannot be changed once the game starts or when it is over. This argument has no substance whatsoever. Furthermore, it is quite interesting that although Bush did lose the popular vote, he overwhelmingly won the plurality of counties throughout the country (See Figure 2). Evidently, there were major tribulations with this election, and there is plenty of blame to allocate. A good portion of the blame goes to an overzealous media whose main concern is to beat out the competition, regardless of the facts. Partisan hacks on all sides, who routinely ignore right and wrong for the sake of winning. This was no longer about campaigning; it was about whom won the election, yet partisan supporters discounted what was fair and right. State legislatures nationwide need to analyze ways to improve the mechanisms and machinery for voting. When people who hold death certificates vote on Election Day, it is obvious that there is something wrong with the system. It is imperative that universal ballot standards be implemented throughout the country and national identification cards be issued. These two measures alone can substantially reduce voter fraud and confusion. Opponents to these two proposals need a reality check. Voting methods must evolve and improve in order to prevent another fiasco like the one we experienced six years ago. Yes, this was a fiasco, but it also showed that with all the flaws that we have detailed, our system still works.The founding fathers would be proud that the checks and balances they put in place have succeeded in ways that they may even have envisioned. Of course, we have a bunch of tweaking and perfecting to do, and if we are on the right track, we still will need some tweaking and perfecting two centuries from now.
Figure 3 (CBS Election Results Chart)
|Presidential Candidate||Vote Total||Pct||Party|
|George W. Bush (W)||2,912,790||48.850||Republican|
|Patrick J. Buchanan||17,412||0.292||Reform|
|John Hagelin||2,274||0.038||Natural Law/Reform|
|Source: CBS News State Results for Election 2000|
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