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Sunday, December 12, 2010

Ten years after Bush v. Gore

Today marks the tenth anniversary of Bush v. Gore and the end of the 2000 Presidential Election. As Ann Althouse says, what would it have been like to be a blogger at that time. At Election Law Blog, Rick Hasen has a series of reflections on the case from Lyle Denniston, Heather Gerken, Rick Pildes, and Nate Persily. Edward Foley adds his thoughts. Of course, views on the entire controversy still are colored by politics--compare Eric Alterman with George Will.* And on a personal note, I enjoy teaching the case in Fed Courts and forcing students to see that there at least purported to be some law going on there.

For now, I want to give a thought on the lasting visual image of this night. As Pildes recalls:

In an image that remains iconic of that night for me, two of NBC's top reporters stood on the steps of the Court, lit up by television lights and framed by the deep-black of a December's night sky, as they took turns reading out loud paragraphs from the Court's decision.

I don't remember if I was watching NBC or another network that night; reporters for all the networks were doing basically the same thing. It all reminded me of watching a bunch of thoroughly unprepared 1Ls who had not done the reading or even thought about what the case might say, had been cold-called, and were trying to bluff their way through it, reading the opinion and answering questions as they went, jumping around from page to page trying to find the key language that would tell them the result and the end-game, and stammering through their answers.

Another reason not to cold call.

    * While I share Alterman's political and historical views, I also would point out that Will's commentary closes with a hypothetical that, deliberately or otherwise, completely misstates the meaning of 3 U.S.C. § 5 (the statute the Court cited as grounds for ending the recount).

Posted by Howard Wasserman on December 12, 2010 at 05:51 PM in Howard Wasserman, Law and Politics | Permalink


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I should have said, "counting in the House", not "voting in the House" - a C-SPAN moment which must await another presidential election.

Posted by: Adam Scales | Dec 13, 2010 2:35:32 PM

Thanks, Howard, I knew more about this a few years ago, so forgive me if I'm making an obvious mistake here. Here is an excerpt from Section 5:

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors...

The rules relating to controversies surrounding appointment do, I believe, have to be in place prior to Election Day. The first part of Section 5 refers to the "appointment of electors", not the meeting of the electors in the electoral college. I'm pretty sure that "appointment" in this context refers to Election Day, see 3 U.S.C. § 1; other provisions relate to the "ascertainment" of electors, which I take to mean the certification of the results, and accompanying slate. Thus, for example, a law that says, "all undervotes count/do not count/count twice", etc. must be in place prior to Election Day to be eligible for the next part of the statute to apply.

As to your second point (relating to this next part), I agree that the "conclusivity" (ah, I'd forgotten the brief prominence of that unusual word!) provision by its terms apply to the voting in the House. And as I recall it, the assumption was that the Florida legislature wanted to take advantage of the "safe harbor" that "conclusivity" provided. I agree that this part of Will's argument is incorrect to suggest that post-election dispute resolution changes would have "violated federal law" However, aspects of Will's hypothetical statute would seem to pose due process concerns that would probably leave us in the same place. And such a statute would be ineligible for conclusivity, as I think you agree in your clarification. Thus, the counting process, according to the pre-election rules must be completed six days prior to the meeting of the electors.

That is how I read the statute.

Of course, the above does address the probably intractable issue of distinguishing mere judicial interpretation (including, to some extent, the power to announce new law) from impermissible (sorry; "inconclusive") post-election rulemaking. Indeed, one could argue that the only "laws" that must be emplaced prior to Election Day are those that provide for state judicial resolution (by some means) of election disputes.

Posted by: Adam Scales | Dec 13, 2010 2:29:27 PM

Will pins the entire mess on Gore and the Florida Supreme Court and argues that the Court changed the rules midway through the game, which is unconstitutional. He then writes the following:

Suppose that, after Nov. 7, Florida's Legislature had made by statute the sort of changes — new deadlines for recounting and certifying votes, selective recounts, etc. — that Florida's Supreme Court made by fiat. This would obviously have violated the federal law that requires presidential elections to be conducted by rules in place prior to Election Day.

The federal law he refers to is § 5. But he misstates the law several different ways. First, the rules need not be in place prior to election day, only six days prior to the meeting of Electors--which was December 12 in 2000. Second, § 5 does not prohibit states from putting new rules in place after the fact. It only states that the result of the election, and the electors chosen pursuant to that election, pursuant to rules established before the six-day window are conclusive and cannot be challenged in the House. A slate of electors (and votes) selected by later-created rules is subject to challenge.

Posted by: Howard Wasserman | Dec 13, 2010 12:22:55 PM

Howard, can you elaborate on your footnote? Thanks.

Posted by: Adam Scales | Dec 13, 2010 11:51:11 AM

"jumping around from page to page trying to find the key language that would tell them the result"

I recall repeatedly yelling at the screen "Skip to the END!!"

Posted by: Bruce Boyden | Dec 12, 2010 11:24:33 PM

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