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The Lawyers' Role in Selecting the President: a Complete Legal History of the 2000 Election

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The Lawyers' Role in Selecting the President: a Complete Legal History of the 2000 Election Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 1-2002 The Lawyers' Role in Selecting the President: A Complete Legal History of the 2000 Election Lynne H. Rambo Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation Lynne H. Rambo, The Lawyers' Role in Selecting the President: A Complete Legal History of the 2000 Election, 8 Tex. Wesleyan L. Rev. 105 (2002). Available at: https://scholarship.law.tamu.edu/facscholar/297 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. TEXAS WESLEYAN LAW REVIEW [Vol. 8 b. The Basic Procedurefor Counting the Electoral Votes .............................. 146 c. The Procedurefor Handling Elections and Competing Slates of Electors ................ 146 PART Two: THE RESOLUTION OF THE 2000 PRESIDENTIAL E LECTION ... .................................................. 153 I. THE REQUESTS FOR MANUAL RECOUNTS IN VOLUSIA, PALM BEACH, BROWARD, AND MIAMI-DADE COUNTIES ................................................ 154 A. The Decision on Where To File: Isolated (Democratic?) Counties or Statewide ................ 154 B. Initial Reactions to the Requests: Secretary of State Harris's Warning, the CanvassingBoards' Approvals, and the Bush Team's Federal Lawsuit ............... 157 C. The Canvassing Boards in Limbo: Whether To Count and How To Count .......................... 159 II. THE FLORIDA SUPREME COURT PROCEEDING ON MANUAL RECOUNTS AND CERTIFICATION .............. 172 A . The Parties' Briefs .................................. 173 B. The Oral Argument ................................. 183 C. The Court's Decision: Palm Beach County Canvassing Board v. Harris I ....................... 193 III. THE EMERGENCE OF FEDERAL LAW: THE INVOLVEMENT OF THE STATE LEGISLATURE AND THE UNITED STATES SUPREME COURT ...................... 199 IV. THE SECRETARY OF STATE'S CERTIFICATION ........... 207 V. THE CONTEST TRIAL IN LEON COUNTY ................ 216 A. Gore's Five Claims .................................. 216 B. The PretrialProceedings ............................ 218 C. The Contest Trial ................................... 220 D. The Trial Court's Ruling for Bush .................. 231 VI. THE UNITED STATES SUPREME COURT PROCEEDING ON MANUAL RECOUNTS AND CERTIFICATION: BUSH v. PALM BEACH COUNTY CANVASSING BOARD ........... 234 A. The Justiciability Question Raised by the Florida Legislature .......................................... 234 B. The Briefing on the Merits .......................... 238 C. The Oral Argument .............................. 244 D. The Supreme Court's Decision ...................... 251 VII. THE ELEVENTH CIRCUIT RULING ON THE FEDERAL CLAIMS .. ................................................. 255 A. The Eleventh Circuit's Ruling: No IrreparableHarm, No Decision on the Merits .......................... 256 B. The Separate Opinions on the Constitutional Merits. 257 C. The Significance of the Eleventh Circuit's Action.... 265 2002] THE 2000 ELECTION 107 VIII. THE FLORIDA SUPREME COURT PROCEEDING ON THE C ONTEST ................................................ 267 A . The Parties' Briefs .................................. 267 B. The Oral Argument ................................. 272 C. The Court's Decision: Gore v. Harris ............... 278 D . The Rem and ........................................ 284 IX. THE UNITED STATES SUPREME COURT PROCEEDING ON THE STATEWIDE COUNT: BUSH V. GORE ............... 285 A. Bush's Emergency Application for a Stay ........... 286 B. The Stay Ruling and the Justices' Different Views on the "Cloud of Illegitimacy" ......................... 288 C. The Parties' Briefs .................................. 292 D. The Oral Argument ................................. 305 E. The Florida Court's Decision on Remand: Palm Beach County Canvassing Board v. Harris II ....... 314 F. The Supreme Court's Decision ...................... 316 PART THREE: THE LAWYERS' EFFECT ON THE OUTCOME- MISTAKES REAL AND IMAGINED ............................... 322 I. DISTINGUISHING JUDGMENT CALLS, UNDERSTANDABLE MISTAKES, AND HARMLESS ERROR ..................... 327 II. THE DEMOCRATS' CRITICAL ERRORS ................... 329 A. The Consistent Mischaracterizationof § 5 ........... 329 B. Finding and Defeating McPherson Too Late ........ 336 C. Avoiding the Merits of Bush's Equal Protection C laims .............................................. 340 D. A Necessary Additional Comment .................. 352 III. THE UNFOUNDED CHARGES OF ERROR ................ 353 A. The Decision To Seek Selective Recounts ............ 354 B. The Decision To Have the Recounts Included Before B ringing Suit ........................................ 355 CONCLUSION ..................................................... 358 INTRODUCTION It was not even 8:00 p.m. in the east when NBC announced that Vice President Al Gore had carried Florida in the 2000 presidential election.' Gore's supporters were elated, because it had long been clear that Florida was critical to a Gore victory2 and yet was sharply divided between Gore and Governor George W. Bush.3 The euphoria 1. Nancy Gibbs, Reversal of... Fortune, TIME, Nov. 20, 2000, at 28, 37; James Poniewozik, TV Makes a Too-Close Call, TIME, Nov. 20, 2000, at 70, 70; DAVID VON DREHLE, DEADLOCK: THE INSIDE STORY OF AMERICA'S CLOSEST ELECTION 35 (Leo- nard Downie Jr. et al. eds., 2001) [hereinafter DEADLOCK]. NBC, CBS, CNN, and FOX all called Florida for Gore. Id. at 35-36. 2. See DEADLOCK, supra note 1, at 16. For any not familiar with the electoral college system in the United States, see infra notes 119-28 and accompanying text. 3. See Richard L. Berke, Florida Is Pivotal: Long Night of Seesawing Tallies for Governor and Vice President,N.Y. TIMES, Nov. 8, 2000, at Al. The National Journal, TEXAS WESLEYAN LAW REVIEW [Vol. 8 peaked when the press announced that Gore had carried Pennsylvania and Michigan, the other two "battleground" states where the election was thought to be closest.4 In the next two hours, however, Bush appeared on the networks criticizing their prediction of Florida's vote,5 and around 10:00 p.m., the networks reversed their call for Gore.6 At 2:16 a.m., the networks began announcing that in fact Bush had carried Florida and won the election.7 Very shortly thereafter, based on the press announcements, Gore called Bush and conceded the election.8 Bush's reaction was gracious, and Gore headed for the Nashville War Memorial to deliver his concession speech.9 As the motorcade traveled the streets of Nashville, however, the Gore campaign's chief of staff received a call from the campaign's Florida field director re- porting that Bush's lead in Florida had been slipping very rapidly, from thousands, to 900, to 200, and as a result, there would be an automatic recount.1l By cell phone, Gore's campaign chair William Daley told the chief of staff to grab Gore and keep him from going onstage. 1 A little over an hour later, Gore called Bush back.12 Gore observed that "things have changed," and the election was now too close to concede. 3 Bush said, "Let me make sure I understand. You're call- ing me back to retract your concession?," to which Gore responded, "There's no reason to get snippy."' 4 When Bush insisted that the net- works now had the correct result, and indicated that his brother, Flor- ida Governor Jeb Bush, had the numbers from the Florida website to a nonpartisan political organization, had released an electoral college map late in the week preceding the election assigning 269 votes, including Florida's, to Gore, and 248 votes to Governor George W. Bush. See Alan Bernstein, Campaign 2000: Nation Might Have To Wait; Tuesday's Vote Just First Step to Presidency, HOUSTON CHRON., Nov. 5, 2000, at Al. Only three states-Maine, Arkansas, and Washington, totaling 21 votes-had been left unassigned. Id. This meant that if Bush were to arrive at the 270 votes needed, he would not only have to pick up all of the unassigned states but also reverse the prediction in at least one additional state. Florida was one of the states presenting the best possibility of such a reversal. Conversely, had Florida gone to Bush, Gore would have had to win all the unassigned states and reverse a state that had previously been assigned to Bush. 4. Gibbs, supra note 1, at 37; Kevin Sack & Frank Bruni, How Gore Stopped Short on His Way To Concede, N.Y. TiMEs, Nov. 9, 2000, at Al. 5. Berke, supra note 3; Gibbs, supra note 1, at 37. 6. Poniewozik, supra note 1, at 70; DEADLOCK, supra note 1, at 39-40. 7. Poniewozik, supra note 1, at 70-71; DEADLOCK, supra note 1, at 43-44. 8. Gibbs, supra note 1, at 39. 9. Id. 10. Id.; DEADLOCK, supra note 1, at 47. 11. Gibbs, supra note 1, at 39; DEADLOCK, supra note 1, at 47. 12. Gibbs, supra note 1, at 39; DEADLOCK, supra note 1, at 49. 13. Gibbs, supra note 1, at 39; DEADLOCK, supra note 1, at 49; Sack & Bruni, supra note 4. 14. Gibbs, supra note 1, at 39; DEADLOCK, supra note 1, at 49; Sack & Bruni, supra note 4. 2002] THE 2000 ELECTION prove it, Gore said, "Let me explain it to you. Your younger brother is not the ultimate authority on this."15 "Well, Mr. Vice President," Bush said, "you need to do what you have to do."16 By 4:00 a.m., the networks found themselves reversing yet again,
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