Trying to Make Peace with Bush V. Gore

Abstract

This article, written in part in response to one by Judge Richard Posner, examines the legal issues involved in and setting the context for the United States Supreme Court's momentous decision in Bush v. Gore. It concludes as follows:

(1) At no point after Election Day did the Florida Legislature have authority to pick a slate of electors or to prescribe how electors were to be picked.

(2) Florida law did not clearly preclude the state from continuing any recount beyond December 12, whatever the circumstances. The common assumption has been that determination of which slate of electors Florida voters had selected needed to be completed by December 18, the date prescribed by federal law for electors to vote. This assumption is false. Though a timely determination by Florida would have simplified matters, Florida did not have to make a determination at all; if the matter was unresolved before it came to Congress, then resolution would have been Congress's responsibility.

(3) The Fourteenth Amendment argument accepted by a majority of the Supreme Court was very weak and did not fit well with the shut-down of the recount ordered by the Court.

(4) A decision like that of the Florida Supreme Court requiring manual recounts does raise an Article II issue. But instead of emphasizing whether the Florida Supreme Court relied on sources other than legislation, or on whether the decision of that court was a usurpation of legislative authority, the critical Article II issue in this case depends on whether the decision of that court was a plausible one given the state of pre-existing law.

(5) The Florida court's decision to order recounts did not fail to meet this standard.

(6) The entire matter - at least the entire Article II matter - should have been left to the political process prescribed by the Twelfth Amendment to the Constitution and by federal statute.

Keywords: 2000 election, equal protection, Article II, Bush v. Gore