It is hard to believe that next month it will be 13 years since the U.S. Supreme Court decided the 2000 presidential election in favor of George W. Bush. Finding a supporter of the decision is about as easy today as finding a supporter of Dred Scott v. Sandford or Plessy v. Ferguson.
With the perspective of time, and without in any way justifying the various rationales of the five justices in the majority, I would like to take a look at what might have happened if, say, Justice Anthony Kennedy had gone the other way.
First of all, some background on the law of presidential elections:
(1) The U.S. Constitution says nothing about a popular election for the presidential electors. All Article II, § 1, Clause 2 says is that the electors shall be appointed by each state “in such Manner as the Legislature thereof may direct . . . .”
(2) Article II, § 1, Clause 4 gives Congress the power to determine when the electors are chosen and when they are to vote, but this date must be uniform throughout the United States.
(3) 3 U.S.C. § 7 says the electors shall vote on the first Monday after the second Wednesday in December.
(4) 3 U.S.C. § 5 provides a safe harbor for election disputes. If those disputes are finally resolved in favor of a particular set of electors at least six days before the electors are to meet, those electors are the ones who vote.
(5) The Twelfth Amendment to the U.S. Constitution says the votes of the electors shall be sent to the seat of the U.S. Government, “directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives open all the certificates and the votes shall then be counted.”
Secondly, some facts about the 2000 election:
(1) In 2000, the first Monday after the second Wednesday in December was Dec. 18.
(2) Six days before Dec. 18 was Dec. 12.
(3) Bush v. Gore was decided on Dec. 12.
(4) Both Houses of the Florida legislature were in Republican hands in December 2000.
(5) The Republicans were in control of the U.S. House of Representatives when Congress convened on Jan. 3, 2001.
(6) There were 50 Republicans, 49 Democrats and 1 Socialist in the U.S. Senate when Congress convened on Jan 3, 2001.
(7) Al Gore was the President of the Senate until January 20, 2001.
So, with Justice Kennedy voting the other way, what then? Presumably every election official in Florida would start recounting ballots on the morning of Dec. 13.
Meanwhile, (1) since both the Florida Senate and the Florida House had a majority of Republicans, and (2) since Dec. 13 was less than six days before the electors were to meet, and (3) since the Constitution says nothing about popular elections, and (4) since under 3 U.S.C. § 5 the popular vote was no longer binding on the Florida legislature, what do you suppose the Republican majorities would have done between Dec. 13 and Dec. 17 while everyone else was counting ballots? Possibly choosing the electors, do you think?
Let us further suppose that an astronomically fast ballot recount goes Gore’s way and the Florida legislature goes Bush’s way. Dec. 18 comes and two sets of electors show up at Florida’s college and cast competing votes. In accordance with the Twelfth Amendment, the Bush electors and the Gore electors send their competing votes to President of the Senate Gore. On the opening date, Jan. 3, 2001, the House of Representatives is in control of the Republicans and the Senate is divided 50 to 50 with Gore sitting to break a tie. With the Senate and the House of Representatives sitting together, Gore then opens all the certificates as the Constitution directs. The Constitution continues: “and the votes shall then be counted.”
And then . . . .
Getting a decision right is almost always better than just getting a decision. But while the country will do just fine while, say, an election for U.S. senator drags on for months, it cannot live without a president for even a few days. Indeed, the country can hardly live without a president-elect, who needs to choose a cabinet and make countless other decisions in the month after the electors vote.
A major problem with Bush v. Gore is the reasoning. I roll my eyes at the equal protection analysis. More plausible reasoning is found in the dissenting opinion of the Florida chief justice: time had run out. To some extent this was because of the tactical choice of Gore’s legal team to challenge the election returns both before and after they had been certified by the Florida Secretary of State. Twenty-twenty hindsight is a marvelous thing, but the inconclusive precertification challenge, which consumed precious weeks in November, left too little time for the postcertification challenge.
I do not opine that the result in Bush v. Gore was the correct one. I write now only to suggest that a slight tinge of gray should be added to the black mark most commentators have given the U.S. Supreme Court for its decision.•