The Gentleman Rests is a concert performance of a new opera depicting the special session of congress in 2001 in which the Congressional Black Caucus attempted to halt the certification of Florida’s votes for the contested presidential election due to alleged disenfranchisement of tens of thousands of Floridians. Composer Dave Ruder (thingNY) sets transcripts of the congressional session to music for five vocalists, viola, trombone, Rhodes piano and bassoon, including the ironic drama of Al Gore (as President of the Senate) following congressional protocol by gaveling over each objecting Black Caucus member, hastening the end of his presidential ambitions. … After two months of post-election chaos in Florida in late 2000, the congressional session depicted in Ruder’s opera was the final step declaring Bush the winner. The Congressional Black Caucus repeatedly tried to raise objections about the results from Florida, citing widespread disenfranchisement and irregularities (that, as usual in the history of US voting, impacted African-Americans hardest), and each objection was turned away because no senator would second them.
Voting Blogs: Bringing Common Sense to the Sunshine State | Ciara Torres-Spelliscy/Brennan Center for Justice
In 2000, Florida became ground zero for the debate over poor election administration as Vice President Al Gore and Governor George W. Bush both thought for weeks that they had won Florida’s (then) 25 electoral votes and therefore the presidency. The Supreme Court resolved the controversy in the infamous Bush v. Gore ruling. Florida’s election administration problems in 2000 included the poorly-designed butterfly ballot, in which the name of a candidate and the hole to be punched for the candidate were slightly askew; resulting in one vote total on day one and a different vote total in a mandatory machine recount. There were also long lines at many precincts, fueling voter dissatisfaction. In 2012, Florida was the next Florida. Fortunately for the nation, the Electoral College vote between President Barack Obama and Governor Mitt Romney wasn’t close and did not hinge on Florida’s (now) 29 electoral votes. Florida in 2012 witnessed such long lines at certain polling places that voters had to wait seven hours or more to vote.
Imagine the worst case scenario. It is Wednesday, Nov. 9, the day after the election, and we do not yet know the winner of the presidential race. Worse still, the outcome will turn on a ballot-counting dispute in one state. A lawsuit is filed, and the courts are enmeshed in an election law contest. It’s Bush v. Gore round two: Trump v. Clinton. The case reaches the Supreme Court. Do we want to take the chance of having an even number of justices deciding that dispute, hoping that the court will not deadlock 4-4? A post-election case that reaches the Supreme Court will necessarily come from a lower court. The rule, in the case of a Supreme Court tie, is that the lower court’s decision is affirmed, without a precedential opinion. So if Trump v. Clinton does reach the Supreme Court, and if the vote is a tie, then a lower court – say an elected state supreme court in a battleground state – would essentially decide the presidential election.
Reflecting on baseball attendance, the philosopher Yogi Berra observed that “if people don’t want to come to the ballpark, how are you going to stop them?” He could have said much the same thing about the American electorate. If voters don’t want to go to the polls, what is going to stop them, too? Often enough, nothing has. Across the decades, Americans have chosen not to exercise the franchise aerobically. The turnout rate in national elections, typically below 60 percent, ranks near the bottom among the world’s developed democracies. The share of Americans who even bother registering to vote — 64.6 percent, according to the most recent figures from the United States Census Bureau — does not come close to rates exceeding 90 percent in Western Europe and Canada. Even in a supposedly banner year like 2008, when Barack Obama’s candidacy generated plenty of excitement, the turnout was not quite 62 percent, a pace that countries like Belgium, Denmark and Sweden would regard as dismal.
Voting Blogs: The Risk of Another Disputed Presidential Election is Higher than Most Think | Ned Foley/Election Law Blog
Throughout American history, there has been an important interplay between institutions and individuals in terms of the capacity to resolve vote-counting disputes in accordance with a basic standard of fairness and integrity. Insofar as the institutions for adjudicating these disputes have been weaker than desirable (in large part because of the oversight at the Founding, as described in the first post), the political system inevitably places greater reliance on the ethical judgments of individual politicians who play critical roles in the handling of these disputes. Conversely, to the extent that institutional improvements occur that increase the capacity for impartial adjudication of these disputes, there is correspondingly less dependence upon the particular character and virtue of individual politicians.
Voting Blogs: The Great Dissenter in Plessy Anticipated the Role for Federal Courts Embraced in Bush v. Gore—But Will the Court Repeat that Role Next Time and, If Not, What Then? | Ned Foley/Election Law Blog
In the 1900s, even as state courts increasingly became the forum for resolving a major vote-counting dispute (as described in the previous post), there still was no role for the federal judiciary in these cases. That was because of Taylor v. Beckham, a U.S. Supreme Court decision in 1900 growing out of Kentucky’s 1899 gubernatorial election—the one involving the assassination of a candidate because of the dispute over the counting of ballots (as also mentioned in the previous post). Taylor ruled that the federal judiciary was powerless to protect the integrity of a state’s electoral process, even in a case of demonstrated outright ballot-box stuffing.
Saturday marked the 15th anniversary of the U.S. Supreme Court’s controversial decision in Bush v. Gore, which put a stop to the recount in Florida, and thereby handed George W. Bush the 2000 presidential election. The case excited considerable scholarly argument, along with a partisan rancor that continues to this day. Looking back, however, it’s hard to imagine an outcome that would have left the losing side satisfied — whichever side it happened to be. Let’s remember the background. First, the “election night” count awarded the state to Republican George W. Bush by 1,784 votes over Democrat Al Gore. An automatic recount, required by state law because of the small margin, determined that Bush had won the state by 537 votes. On Nov. 26, the state’s election authority certified that Bush had won. The Gore campaign protested that thousands of ballots — the so-called undervotes — had been rejected by the counting machines and should have been tabulated by hand. The Gore campaign sued, and the Florida Supreme Court, by a vote of 4-3, ordered a manual recount of all undervotes statewide. The Bush campaign then appealed to the U.S. Supreme Court, which heard oral arguments on Dec. 11 and, on Dec. 12, ordered the recount stopped, on equal protection grounds, because the state had no clear standard for determining voter intent in tabulating the undervotes.
Almost from the moment in December 2000 that the Supreme Court decided its controversial opinion in Bush v. Gore ending the recount in Florida, there has been great debate about whether the case had any precedential value and, assuming it did, what precisely its equal protection principle stood for. Was it a one-day-only ticket? Is it a case about equality of procedures in the conduct of a jurisdiction-wide recount? Or does it require broader equal treatment of voters, so as to fulfill Bush v. Gore’s admonition against the government, by “arbitrary and disparate treatment, valu[ing] one person’s vote over that of another”? We may finally find out the case’s precedential value as soon as the 2016 elections. At the Supreme Court, Bush v. Gore has been a legal Voldemort, a case whose name a Court majority has dare not spoken since 2000. Only Justice Clarence Thomas has cited the case, in a dissenting opinion, and not speaking on its equal protection principles.
Fifteen years after Bush vs. Gore, 15 years after the Supreme Court intervened in a presidential election, a single sentence in the majority opinion remains one of the great constitutional brainteasers in our history. If we take the sentence at face value, it’s nonsensical; if we ignore it, we might just be able to improve our dysfunctional election system, at least modestly. As we all know, the Supreme Court on Dec. 11, 2000, ordered an end to ballot-counting in Florida, effectively calling the election for the national popular vote loser, George W. Bush. And as most fair-minded legal experts agree, the rationale for leaving more than 100,000 ballots uncounted was convoluted — an extravagant and unprecedented twist on Equal Protection law.
The disputed presidential elections of 1876 and 2000 were not isolated, aberrational events in America’s political system. Instead, they are merely the two most prominent peaks in an entire range of disputed elections running through American history from the Founding Era to the present. Like geologists who can detect the plate tectonics that underlie a mountain range, we can employ the historian’s tool to see the structural forces that underlie the pattern of vote-counting disputes that have erupted periodically in the past. America’s difficulties in employing fair and predictable procedures to count ballots in close elections are rooted in beliefs held—and choices made—at the time of Founding. The Founders, as we know, abhorred political parties and they hoped to design a constitutional system that, by using separation of powers, would keep factionalism from developing into organized political parties. Well, we know the plan did not work out as intended.
This month marks the 15th anniversary of the U.S. Supreme Court’s 2000 decision in Bush v. Gore, which ended a recount of ballots in Florida, and assured the election of Republican George W. Bush over Al Gore as our 43rd president. We can all breathe a sigh of relief that we haven’t had another election meltdown with such stark national ramifications for the past decade and a half, but that’s because we’ve been lucky, not smart. There were lots of lessons we could have learned from the Florida fiasco with its “hanging chad” punch-card ballots and its slew of lawsuits: that our voting technology was quite poor, and in a close election, the margin of error would exceed the margin of victory; that handing political partisans discretion to make choices over how to count and recount the votes can lead to both partisan decision making and lack of confidence by those on the losing side in the fairness of the process; and that in close elections, we can simply count on the loser in a razor-thin race to gracefully accept defeat and move on.
Editorials: Mindlessly Literal Reading Loses Again: This Supreme Court decision is a dig at Bush v. Gore | Richard Hasen/Slate
The Supreme Court ended its term Monday with another major rejection of conservative attempts to use wooden, textualist arguments to upset sensible policies. The result in Arizona State Legislature v. Arizona Independent Redistricting Commission, which upheld the use of independent commissions to draw Arizona’s congressional districts, is a big win for election reformers and supporters of direct democracy. The Arizona decision also undermines the strongest conservative argument in favor of George W. Bush in Bush v. Gore, the case that handed him the 2000 presidential election. Monday’s 5–4 decision has much in common with last week’s blockbuster Obamacare ruling. In a 6–3 decision in King v. Burwell, the Supreme Court upheld the availability of federal subsidies for those signed up for Obamacare despite language in the health care law that could have been interpreted to give those subsidies only to those on state exchanges. The court rejected a narrow reading of the term “such exchanges” in the health care case because it saw its job not to read the text out of context but to follow broad congressional purpose. As Chief Justice John Roberts wrote for the King majority: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”
As Americans prepare to vote Tuesday in dozens of tight elections, the two major political parties and interest groups across the ideological spectrum already have lawyered up for potential problems at the polls or with election results. On Election Day, armies of partisan attorneys and poll watchers will be at the ready at voting sites and in war rooms in almost every state, scrutinizing nearly every aspect of the voting process and prepared to spring into action if they see something that could adversely impact their candidate or cause. “The parties are well lawyered up,” said Richard Hasen, a University of California, Irvine, law and political science professor and the author of “The Voting Wars: From 2000 to the Next Election Meltdown.” “It’s a tactic and a tool. It’s like an arms race.”
California: Legislation would require automatic recounts in very close statewide finishes | The Sacramento Bee
California taxpayers would pick up the tab for recounts in close statewide elections under soon-to-be-amended legislation that follows criticism of existing state rules during last month’s recount in the controller’s race. Assembly Bill 2194 by Assemblyman Kevin Mullin, D-San Mateo, would require the state to cover the cost of recounts in any statewide contest where the margin is one-tenth of 1 percent or less. Under current law, any voter can request a recount in particular areas as long as they pay for it. If the recount changes the outcome, another voter can request a recount in other places.
Editorials: Florida Déjà Voodoo – Why there is no reform that could be better for progressives than redistricting reform | Ron Klain/Slate
In my legal career, I’ve suffered two painful defeats litigating against the Republican political machine of Florida. The first was a case called Bush v. Gore. The second—less famous, but just as bitter—came two years later, in 2002, when I worked on a legal challenge to Florida’s absurdly partisan redistricting plan, only to see our claims rejected by both the state and federal courts. So last week’s court ruling overturning gerrymandered congressional districts in Florida gave me a serious case of déjà vu for several reasons. First, its author was Leon County Circuit Court Judge Terry Lewis—a major figure in the post-2000 Florida election litigation miasma, who ultimately wound up overseeing the statewide hand recount of ballots that the U.S. Supreme Court halted in its infamous 5–4 order. Second, the ruling represented a long overdue vindication of our 2002 claim that the Florida Legislature had abused its power in entrenching its control over the state through redistricting. While much of the coverage of Lewis’ opinion has focused on the Florida legislative “chicanery” that it laid bare, a more substantial question is this: Why did this case strike down a hyper-partisan districting plan, when virtually every other such court challenge, in virtually every other state, has failed over the past three decades? How was the widespread bastardization that allows “representatives to pick their voters, instead of voters picking their representatives” finally checked by a court decision?
Voting Blogs: A Constitutional “Right to Participate” in the Electoral Process? | More Soft Money Hard Law
In a close and insightful reading of Chief Justice Roberts’ opinion in McCutcheon, reproduced here with his permission from the election law listserv, Marty Lederman has called attention to this first paragraph:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. (McCutcheon v. FEC, 134 S.Ct. 1434, 1440-41).
The right that Roberts cites—the right to participate in the electoral process—is apparently wide in scope and includes a “variety of activities,” including voting. So Marty notes that this rationale does not spring from pure “free speech” jurisprudence, and indeed he argues that “if there were such a basic right, the opinion would make much more internal sense than if viewed through a Free Speech Clause” lens. While disclaiming “naiveté” about the Roberts Court’s commitment to the interests of voters, Marty asserts that if “taken seriously,” this freshly minted right to participate could “be the source of a new flourishing of voting rights and other election-related rights.”
All the votes from the November 5 election have been tabulated, and the Virginia attorney general race is as close as they come. Democrat Mark Herring holds a slim 164-vote lead over his Republican opponent, Mark Obenshain. The close count has teed up a likely recount for next month, and the Republican candidate has hinted at an unusual legal strategy: basing a lawsuit on Bush v. Gore, the controversial Supreme Court decision that ended the 2000 presidential election in George W. Bush’s favor. The Supreme Court usually prides itself on respecting the past while keeping an eye toward future legal precedent. But the court trod lightly when it intervened in 2000. The five conservative justices may have handed the election to Bush, but they tried to ensure that their decision would lack wider ramifications. “Our consideration is limited to the present circumstances,” read the majority opinion in Bush v. Gore, “for the problem of equal protection in election processes generally presents many complexities.” The conservative majority wanted to put a stop to the Florida recount, but they hoped their ruling—which extended the 14th Amendment’s equal protection clause to argue that different standards cannot be used to count votes from different counties—wouldn’t set precedent in future cases. For a time the justices got their wish. But the supposed one-time logic of the controversial decision has begun to gain acceptance in the legal community—particularly among campaign lawyers in contentious elections.
In the old days, the U.S. Supreme Court took strong steps to protect the right of ordinary citizens to vote. But culminating in the recent Shelby County, Ala. v. Holder decision that struck down the preclearance provisions of the Voting Rights Act, the Supreme Court in the past decade has turned its back on protecting the franchise, especially for the poor and minority groups. In 1915, the court struck down the notorious grandfather clause established in many Southern states, which allowed persons to vote only if their grandfathers could. That was a crude device to disenfranchise the descendants of black slaves, who, of course, could never vote. In the 1940s and 1950s, the court held that the Democratic Party in the Southern states could not treat its primaries as a private affair, open only to white voters. In 1964, the court established the one-person, one-vote rule, so that states could not apportion districts in a manner that allowed rural voters to have 50 times the voting strength of their urban counterparts. In 1966, the court first upheld the constitutionality of the Voting Rights Act, which established federal control over states and other political entities that had used one or another blatantly discriminatory devices to prevent African-Americans and other minority voters from casting ballots. In the same year, it struck down a Virginia poll tax law that required state residents to pay $1.50 a year for the right to vote in state elections. (The 24th Amendment, adopted in 1964, prohibited poll taxes for federal elections.)
Retired Supreme Court Justice Sandra Day O’Connor recently said that she has second thoughts about Bush v. Gore. Whatever feelings she now expresses, the U.S. Supreme Court’s involvement at that time obviously had implications for election law, and, of course, the direction of our nation. Since then, the court has ruled on a variety of important voting rights cases, and in a matter of weeks the court is expected to hand down decisions in two additional ones, also having far-reaching consequences. One involves an Alabama county that opposes federal oversight of its election procedures, and the other concerns the scope of Arizona’s law requiring voters to submit documentary proof of citizenship when registering to vote. Both cases, Shelby County, Ala. v. Holder and Arizona v. Inter-Tribal Council of Arizona, consider the authority of Congress to protect voters against state and local ordinances that impinge upon fundamental voting rights.
Back when Sandra Day O’Connor was still on the Supreme Court, busy saving affirmative action and the right to abortion, liberals who wanted a reason to forgive her vote in Bush v. Gore often asked me — begged me — to assure them that Justice O’Connor was sorry. No, she’s not, I would reply, anticipating the heartbroken expressions my words always evoked. It seemed to me that this was a woman who looked forward, not back, and who never wasted energy on regret. So now it turns out that the retired justice, just past her 83rd birthday, does have second thoughts about Bush v. Gore and, more to the point, is willing to express them.
Now she tells us. More than 12 years after the fact, retired Justice Sandra Day O’Connor said it was probably a mistake for the Supreme Court to hear Bush v. Gore and anoint George W. Bush as president of the United States. “It took the case and decided it at a time when it was still a big election issue,” Justice O’Connor told the Chicago Tribune editorial board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’” She continued: “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
A lawyer for Kenya’s election commission cited the U.S. Supreme Court case Bush vs. Gore on Thursday during arguments before a Kenya Supreme Court that must now rule on the outcome of this East African country’s presidential election. Ahmednasir Abdullahi told Kenya’s highest court Thursday it should adhere to judicial restraint and uphold the March 4 result from Kenya’s election commission showing that Uhuru Kenyatta won with 50.07 percent of the March 4 vote. Prime Minister Raila Odinga, the runner-up with 43 percent, and civil society groups are asking the court to order a new election because it wasn’t free and fair. The court is expected to rule by Saturday. Abdullahi quoted U.S. Supreme Court justice Stephen Breyer, who wrote after hearing the 2000 case that decided that U.S. presidential election, that the appearance of a split court on a highly politicized case risks undermining public confidence in the court.
They sued early and often. Voting-rights advocates, along with the U.S. Department of Justice and some political party officials, tackled potential electoral problems early this election year. Judges blocked stringent voter ID laws, lifted registration restrictions and rejected limits on early voting. As a result, Election Day 2012 escaped the legal dramas of the past. While some local skirmishes landed in court, no litigation clouded President Barack Obama’s victory on Tuesday over Republican challenger Mitt Romney. But courtroom wars over the franchise are far from over.
This post highlights a chart containing information about who would decide a post-election challenge in each of the fifty states, broken down by type of election. To access the chart, click here. For a summary and further analysis, read on. Doomsday scenarios abound regarding an election that might last into extra innings. What will happen if, on the morning of Wednesday, November 7, we do not know who won the presidential election, or other races? More menacingly, what happens if post-election challenges last several weeks, beyond the routine provisional ballot and recount procedures?
ne part of the story of the 2012 voting wars is well known: Republican legislatures have passed a series of laws making it at least modestly harder for people to vote. These GOP-inspired rules have included limits on early voting, stricter rules for voter registration, and new voter ID laws to stamp out unproven allegations of voter fraud. Less well-known is that courts have reined in some of these excesses, including a decision to block Texas’s stringent voter ID law, an injunction putting Pennsylvania’s voter ID law on hold for this election, and a settlement blocking the worst of Florida’s voter registration hurdles. The judicial record has been decidedly mixed. The Pennsylvania law will likely be approved by the 2014 elections, courts have allowed Republican secretaries of state to pursue purges of noncitizens from voting rolls despite ample evidence that the lists erroneously included many eligible voters, and federal courts recently refused to roll back Texas’ tough new voter registration rules.