Bush v. Gore - Georgia Lived it Before: Pickrick and the Warren Court

• Publication year: 2010

Bush v. Gore - Georgia Lived It Before: Pickrick and the Warren Court

Alfred R. Light

Introduction

Rufus Miles' famous law, "where you stand depends on where you sit," has clear application with respect to commentary on the roles of the United States and Florida Supreme Courts in the 2000 presidential election controversy.[1] On November 7, 2000, Americans went to the polls to elect a President. Though the media declared in the early morning hours that Governor George W. Bush won Florida and thus the presidential election, moments later Vice President Al Gore recanted his concession; by dawn the Florida election was again too close to call.[2] Post-election day controversy over the close result, including legal challenges from both presidential contenders, dominated the nation's headlines until the United States Supreme Court's pronouncement on December 12, 2000, which effectively ended the election.[3] That day, in a controversial 5-4 ruling, the Court reversed a similarly controversial 4-3 judgment of the Florida Supreme Court that ordered a recount of presidential votes cast in that state.[4] The Court's decision carried into office a President-elect who received less popular votes nationwide than his opponent.[5] Even after the Court's decision, controversy continued over who actually won Florida, one of the closest statewide elections in American history.[6] Pundits marveled at the unique and startling intervention of the federal courts to decide such an important election, deemed by Time as the "wildest election in history."[7]

In the decision's aftermath, the usually less hyperbolic George Will, typical of those criticizing the underlying Florida Supreme Court decisions, verbally assaulted the Florida high court as a partisan and lawless institution.[8] Professor Alan Dershowitz was typical of those critical of the subsequent reversal by the U.S. Supreme Court, opining that the U.S. decision "may be ranked as the single most corrupt decision in Supreme Court history."[9] Professor Karen O'Connor, President of the Southern Political Science Association, exclaimed in somewhat less acerbic terms, "[c]learly, the Supreme Court of the United States can never again be referred to as the ‘least dangerous branch of government.'"[10] In her fall 2000 address to that Association, Professor O'Connor urged her political science colleagues "to rediscover the politics inherent in the judicial process" and then highlighted potentially fruitful areas for inquiry "through the lens of the neglected role of the South in setting the agenda of the Supreme Court of the United States."[11]

The 2000 presidential election controversy was a remarkable story, but it is not the "unique" event journalists and many commentators have pronounced.[12] Once upon a time, not so long ago, there was an election story paralleling the 2000 presidential election story. Neither the advocates for our presidential candidates nor "presidential historians" apparently found these parallels worth noting contemporaneously—in their briefs, oral arguments, or commentaries.[13] It, too, is a remarkable story about a statewide election involving a nationally known governor. As Professor O'Connor intuits, it is a Southern story. Thirty-four years before, in 1966, the United States Supreme Court intervened in an election dispute, resolving critical issues of state constitutional and election law, and in the process named Lester G. Maddox the Governor of Georgia.[14]

Thirty-four years is not that long ago. The principal politicians from the 1966 Georgia battle are still alive. The candidate who carried the cities and suburbs enroute to the popular vote, but lost the rural areas and most counties, was Howard "Bo" Callaway.[15] In a recent interview, former Attorney General Griffin Bell, Jr.—the lower-court judge overruled by the Supreme Court in 1966—immediately saw the analogy between the 1966 Georgia election and the 2000 presidential election stating, "Callaway would have been Gore."[16] The candidate who swept rural Georgia, carrying 128 of Georgia's 159 counties, was Lester Maddox.[17] Maddox would have been Bush.[18] The liberal minor candidate who took votes away from Callaway and denied him a majority was Ellis Arnall.[19] Arnall would have been Nader.[20]

Most of the Supreme Court Justices involved in the 1966 controversy are dead. De mortuis nil nisi bonum.[21] Seats now held by Justices Souter and Ginsburg were then held by Justices Douglas and Fortas.[22] In 1966, Douglas and Fortas wrote dissents—"one man, one vote."[23] In 2000, Souter and Ginsburg wrote dissents—let every vote count.[24] In 1966, Justice Black held the "Southern seat," the swing vote that made the difference.[25] Justice Kennedy, who now holds this seat, followed suit in 2000.[26] The lower-court decision in 1966 was per curiam.[27] Per Curiam also wrote for the Florida Supreme Court.[28] It is a road less traveled, but both states walked it.

This Article responds to Professor O'Connor's call and "rediscovers" judicial history and politics relevant to the 2000 election controversy. Although Professor O'Connor noted that Bush v. Gore "originated in a Southern state,"[29] neither she nor other commentators have directly explored the Southern origins of the judicial doctrines and the regional political backdrop of this controversy. I remedy this glaring omission here.

Part I provides the necessary background on Georgia's Constitution and its Governors to understand the 1966 Georgia gubernatorial election controversy.[30] Parts II and III describe the dawn of two-party politics in the Peach State: the 1966 gubernatorial election and its resolution in the United States Supreme Court.[31] Part IV brings together the many parallels between the 1966 and 2000 stories.[32] Part V looks to Maddox's future after 1966 for a glimpse into what may lie in store for Bush after 2000.[33] This is followed by some concluding thoughts on legitimacy—judicial and political.[34]

I. The Georgia Constitution of 1945 and the "County Unit" System

Since this is a legal story, let me begin with a law—the Georgia Constitution of 1945.[35] Problems relating to the electoral provisions of that document dated back almost to the date of its adoption. In 1947, Georgia voters elected former Governor Eugene Talmadge to his old job, but the Governor-elect died before he was inaugurated.[36] Article V, section 1, of the Georgia Constitution provided:

The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Assembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this state; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce.[37]

Altogether, three persons claimed to be the Governor of Georgia in 1947.[38] Pursuant to the above provision, the Georgia General Assembly elected the late Governor-elect's son, Herman E. Talmadge, who had received a number of write-in votes for Governor from voters fearing for his father's health.[39] Lieutenant Governor-elect M.E. Thompson and previous Governor Ellis Arnall each also claimed to be the chief executive.[40] Talmadge operated out of the Governor's office at the State Capitol in Atlanta.[41] Georgia's cautious Secretary of State, handicapped Ben Fortson, actually hid the Great Seal of Georgia from Talmadge and the other contenders for several weeks by sitting on it while in his wheelchair.[42] Eventually, the Georgia Supreme Court ruled in Thompson v. Talmadge[43] that the selection of a governor by the legislature when the candidate who received a majority of the votes cast died before taking office was invalid.[44] Thompson became Governor.[45]

Georgia's electoral procedures during and following this episode in Georgia history were controversial. Georgia had what it called a "county-unit system," similar in some respects to the electoral college under the United States Constitution.[46] Used in Georgia primary elections for many years, the system allocated a number of county-unit votes based roughly on the county's population.[47] The gubernatorial candidate who received the majority of the vote in a county claimed all the county-unit votes from that county.[48] This system originally weighted the popular vote from rural areas more heavily than the popular vote from urban areas because each of Georgia's 159 counties—even a very small rural county—received at least one full county unit vote.[49] Large urban counties such as Fulton (in which most of Atlanta is located) received only three unit votes.[50] The system was changed several times to make it more palatable to urban areas.[51]

The last change, which occurred in 1962, allocated unit votes to counties using the following criteria: Counties with populations not exceeding 15,000 received two units; an additional unit for populations of 15,001-20,000; an additional unit for the next 10,000; an additional unit for each of the next two brackets of 15,000; and, thereafter, two more units for each increase of 30,000.[52] The practical effect of this system, like the United States electoral college, was that each citizen's vote counts for less and less as the population of his county increases. Even under the 1962 amended system, a combination of the unit votes of the smallest counties in the state could muster a clear majority of the unit votes while representing only about one-third of the total population of the state.[53]

In South v. Peters,[54] Georgia voters and members of the Democratic Party from Fulton County...