Tulsa Law Review Volume 37 Issue 1 2000-2001 Supreme Court Review Fall 2001 Bush v. Gore--A Critique of Critiques Martin H. Belsky Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Martin H. Belsky, Bush v. Gore--A Critique of Critiques, 37 Tulsa L. Rev. 45 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol37/iss1/3 This Supreme Court Review Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Belsky: Bush v. Gore--A Critique of Critiques BUSH V. GORE-A CRITIQUE OF CRITIQUES Martin H. Belsky* On December 12, 2000, The United States Supreme Court determined the winner of the Presidential election of 2000.1 Since that time, there have been at least nine books,2 numerous short legal commentaries, 3 many longer law review articles,4 and countless e-mail discussions s analyzing this decision and its propriety.6 This article will * Dean and Professor of Law, The University of Tulsa College of Law; J.D. Columbia University 1968. 1. Bush v. Gore, 531 U.S. 98 (2000). 2. Bush v. Gore: The Court Cases and the Commentary (E.J. Dionne, Jr. & William Kristol eds., Brookings Instn. Press 2001); Alan M. Dershowitz, Supreme Injustice:How the High Court Hyacked Election 2000 (Oxford U. Press 2001); Howard Gillman, The Votes that Countec How the Court Decided the 2000 Presidential Election (U. Chi. Press 2001); Samuel Issacharoff, Pamala S. Karlen & Richard H. Pildes, When Elections Go Bad: The Law of Democracy and the Presidential Election of 2000 (rev. ed., Found. Press 2001); Richard A. Posner, Breaking the Deadlock. 7he 2000 Election, the Constitution and the Courts (Princeton U. Press 2001); Roger Simon, Divided We Stand. How Al Gore Beat George Bush and Lost the Presidency (Crown Publishers 2001); Deadlock The Inside Story of America's Closest Election (Wash. Post ed., PublicAffairs 2001); The Vote: Bush, Gore, and the Supreme Court (Cass Sunstein & Richard Epstein eds., U. Chi. Pres 2001); 36 Days: The Complete Chronology of the 2000 PresidentialElection (John Wright et al. eds., Times Books 2001). 3. See e.g. E.J. Dionne, Jr. & William Kristol, supra n. 2, at 165-341. There are, in addition, many short pieces or commentaries in law school alumni magazines, legal newspapers, and even in the Chronicle of Higher Education. See e.g. James Blumstein & Suzanna Sherry, The 2000 Presidential Election: What Happens When Law and Politics Collide? Vanderbilt Law. 18-27 (Spring 2001); Dan Lowenstein, Election 2000, UCLA Law 32-33 (Fall-Winter 2000-2001); Michael Doff, Was the Bush v. Gore Decision Political?, Colum. L. Sch. Report 22-25 (Spring 2001); E. Joshua Rosenkranz, High Court's Misuse of the Past, 23 Natl. L.J. A20 (Jan. 15, 2001); Jonathan Ringel, Does Ideology Count? Politics Sure Does, Leg. Times 7 (July 2, 2001); What We'll Remember in 2050: 9 Views on Bush v. Gore, Chron. Higher Educ. B15-16 (Jan. 5, 2001). 4. See e.g. Symposium, Bush v. Gore: Democracy and Disorder,68 U. Chi. L. Rev. 679 (2001); Student Author, Non Sub Homine? A Survey and Analysis of the Legal Resolution of Election 2000, 114 Harv. L. Rev. 2170 (2001); Kim Scheppele, When the Law Doesn't Count. The 2000 Election and the Failureof the Rule of Law, 149 U. Pa. L. Rev. 1361 (2001). 5. I belong to a listserv for constitutional law professors moderated by Professor Eugene Volokh. From election day 2000 to May of 2001, and even after, the number of comments, criticisms, defenses, and justifications seemed endless. At one point, in the Spring, I counted more than 250 Bush v. Gore entries. This is in addition to the numerous comments on the law prof listserv, open and available to all law professors. 6. I must confess, not wishing to lose the opportunity for educating the public and to bring visibility to The University of Tulsa College of Law, the law school and the College's Federalist Society joined in the analysis game and sponsored an evening symposium on January 11, 2001, entitled "Bush v. Gore: the Case of the Century." Speakers represented the Democratic and Republican official positions, and supposedly more neutral positions Published by TU Law Digital Commons, 2001 1 Tulsa Law Review, Vol. 37 [2001], Iss. 1, Art. 3 TULSA LAW REVIEW [Vol. 37:45 review some of these criticisms.7 My goal is to organize the factual and legal history and the issues implicated by the Presidential election of 2000, followed by my own perspective. I do not claim that my opinions are any better. Nor do I claim that they will be more thoughtful, more objective, or even more articulate. I do hope that by putting some structure to the on-going debate, I can contribute to the effort to put the case into historical jurisprudential perspective. I. THE STORY A. Election Night The entire factual and legal story concerning the contested Presidential election of 2000 has been extensively documented elsewhere, sometimes objectively and sometimes not.s My goal here is to organize it in as straightforward a fashion as possible. On Tuesday, November 7, 2000, the voting citizens of the United States9 cast their ballots for the next President of the United States, indirectly, of course, by voting for electors in each state who in turn would vote for the next President.'° Most voted for either Vice President Albert Gore, Jr., the nominee of the Democratic party, or Governor George W. Bush, the nominee of the Republican party."' The election was a close one, not only based on the popular vote, but also on the electoral vote. In fact, it soon became evident that the electoral vote, which of course determined who would be the next President,12 was so close that the winner of Florida's electors would be from academics and jurists. See David Harper, Bush vs. Gore Put Into Perspectives, Tulsa World 12 (Jan. 12, 2001). 7. Compare Posner, supra n. 2, at 3, 198-220 (criticism of the "professorial commentators"). 8. ComparePosner, supra n. 2, at 12-149; Dershowitz, supran. 2, at 15-93 with Wright supra n. 2; Wash. Post, supran. 2. 9. This is not the forum to discuss the sad reality that, using 1996 statistics, 196,511,000 of the United States citizens were eligible to vote, and only 146,211,960 were registered (74.4%). Of that 146,211,960, only 96,456,345 in fact voted in the 1996 Presidential election. This indicates a turnout rate of 49.08%. About Elections and Voting <http://www.fec.gov/pges/96T0.HTM> (accessed Sept. 12, 2001). Assuming about the same rate of participation in 2000, this means that the President was elected with about 23% of those eligible to vote. 10. See U.S. Const. art. II, § 1; U.S. Const. amend. XII. 11. A small percentage, 3,000,000 of 101,000,000 or 3% voted for other candidates. The World Almanac and Book of Facts 76 (World Almanac Educ. 2001). 12. Of course, under the United States Constitution, the voting citizens do not technically vote for the President. Instead, they vote for "electors" from each state, who in turn meet and vote for the President. Each state has electors equal to the number of Senators and Members of the House of Representatives. U.S. Const. art. II, § 1: U.S. Const. amend. XII. By specific Constitutional Amendment, the District of Columbia has three electors. U.S. Const. amend. XXIII. https://digitalcommons.law.utulsa.edu/tlr/vol37/iss1/3 2 Belsky: Bush v. Gore--A Critique of Critiques 20011 A CRITIQUE OF CRITIQUES the winner of the election.' 3 In the early evening of election day, the television networks and the Associated Press, based on exit poll projections, declared Vice President Gore the winner in the State of Florida. 14 Then, by the early morning of November 8, 2000, all the pundits realized that they had made a mistake.1 5 By 2:30 a.m., Eastern Standard Time, most analysts predicted Governor Bush to win Florida and thus have a majority of the electoral votes. Vice President Gore then called Bush to concede.16 Yet, one hour later, after discussions with his advisors, and a tightening of the vote count, Vice President Gore retracted his concession in a follow- up phone call to Governor Bush.17 This ignited a thirty-six day post- election Presidential race.18 B. Strategy and Litigation Through public relations and selected court cases, the Presidential Campaigns pursued two different strategies. The Gore campaign challenged the credibility of the voting tallies for certain areas of Florida.' 9 The votes, they urged, had never really been counted and it was necessary to allow recounting in certain areas to satisfy the requirement that every vote be counted.20 Vice President Gore also contended that undervotes (where a punchcard had not been totally punched through) and overvotes (where two votes were cast for President) should be reviewed manually to determine the "intent of the voter."2 The Bush Campaign relied on the official conclusion that the vote had been counted, a new President had been selected, and the opposition was merely trying to steal the election.2 Florida law and 13. Wash. Post, supran. 2, at 43. 14. Id. atvii. 15. Wright, supran.2, at xv. 16. Wash. Post, supran. 2, at vii.