Understanding the 2000 Election: A Guide to the Legal Battles That Decided the Presidency.

• Author: Nagle, John Copeland
• Position: Book Review

UNDERSTANDING THE 2000 ELECTION: A GUIDE TO THE LEGAL BATTLES THAT DECIDED THE PRESIDENCY. By Abner Greene. (1) 2001. Pp. 202. $19.95

It seems like everyone has written a book about the 2000 presidential election. I will content myself with reviewing one of them. The choice is easy. Abner Greene's Understanding the 2000 Election: A Guide to the Legal Battles That Decided the Presidency presents the definitive description of the legal battles that followed the closing of the polls on Tuesday, November 7. (3) Those battles culminated in the Supreme Court's ruling in Bush v. Gore, (4) a decision that has already become one of the most vilified in American history. Greene is much more careful and measured than most commentators in his account of the Court's actions and all of the events that occurred in the five weeks after the election, and that is one of the great appeals of his book. There are two more reasons why it was the obvious election book for me to read. The first reason heeds the intuition of many schoolchildren as memorialized by C.S. Lewis: the shortest book is the best one to review. (5) Second, Abner Greene is a very good friend of mine. He voted for Gore, I voted for Bush, but our friendship transcends such differences. The special virtue of our friendship in this circumstance is that it dissipates whatever temptation there could be toward the invective that has characterized so much of the debate about Bush v. Gore and the other issues surrounding the election.

Much has been written about the election in books, law reviews, popular journals, internet sites, and countless other forums--with much more commentary to come. It is not my intent to survey all of that literature here. Greene provides a comprehensive account of the legal battles attending the 2000 presidential election, and I will review that account here in Part I while leaving the rest of the story to others. My contribution to the debate concerning the election is to examine What should count as a "vote." Greene considers that question throughout his book, so I will build upon his discussion first to articulate a normative standard for counting votes, and second to identify alternative explanations for the Court's decision in Bush v. Gore besides partisan politics.

Five months before election day, in the course of resolving a mundane labor law dispute, the Seventh Circuit remarked, "If in November a person fails to pull the lever for Al Gore or George W. Bush or any of the other presidential candidates, but instead scrawls an oblique message on the ballot, no vote will be counted." (6) The court spoke too soon. The meaning of the oblique message conveyed by indented, hanging, and other lingering chads proved to be critical in the legal battles over the election. In Part II, I argue that the determination of what constitutes a "vote" is fraught with difficulty, especially when it turns on inferences from ambiguous evidence that are drawn after an election takes place. That question, in other words, mirrors the recent debates about statutory interpretation that dispute the significance of evidence of legislative intent beyond that contained in the statutory text itself. Greene describes the arguments for accepting a generalized inquiry into a voter's intent as the decisive standard, but he neglects many of the concerns that such reliance raises. The alternative approach to reading ballots--the approach that corresponds to a textualist theory of statutory interpretation--emerges from a less familiar, and quite different, state supreme court case deciding another election dispute in December 2000. (7) The approach to interpreting ballots suggested by that case and from the analogy to statutory interpretation emphasizes the dual need to avoid speculating about voter's intent and "to insure a standard of objectivity in our election process." (8)

Discontent with the Florida Supreme Court's approach to effectuating the intent of the voters resulted in Bush v. Gore. But the widespread dissatisfaction with the reasoning contained in the United States Supreme Court's per curiam opinion has been accompanied by a quick assumption that partisan bias is the only possible explanation for the Court's decision. In Part III, I describe how Greene first concludes that the rationale of the per curiam opinion is plausible, and then proceeds to offer his own compelling First Amendment theory to justify the result in Bush v. Gore. I continue by offering three of my own possible explanations for why the Court did what it did, any of which suggests that it is improper to assume that the Court acted for partisan reasons. Finally, in Part IV, I conclude by wholeheartedly commending Greene's concluding chapter on how the rule of law triumphed in the election.

1. GREENE'S ACCOUNT OF THE 2000 PRESIDENTIAL ELECTION

   Greene is well qualified to write about the legal issues raised by the 2000 presidential election. His prior work has explored numerous constitutional and statutory questions that bear upon the kinds of institutional and interpretive issues raised by the election. (9) His specific expertise on the election was recognized by many national media sources that relied upon his insights as the events were unfolding. (10)

   The book that Greene wrote is wonderfully clear and dispassionate. He succeeds completely in his effort to explain all of the legal issues surrounding the election, not just the Court's decision in Bush v. Gore. He begins by describing the role of the electoral college in selecting the President. He then reviews the many aspects of the manual recounts of the punch card ballots that featured in the decisions of the numerous courts--including the Florida Supreme Court and the United States Supreme Court--that considered the meaning of a legal vote, the Florida statutory schemes for protesting and contesting the election, the federal statutory scheme for selecting presidential electors, and the federal Constitution's guarantee of equal protection under the law. He analyzes the disputes surrounding the butterfly ballot employed in Palm Beach County and the absentee ballots in Seminole and Martin Counties. And Greene sketches the laws governing the role that the Florida legislature and the United States Congress could have played in deciding the election. Throughout, Greene proceeds with fairness to the arguments of each party, avoiding the hyperbolic accusations that characterized much of the public debate at the time and much of the academic response to its conclusion. This dispassionate approach is one of the book's signal virtues.

   The legal battles themselves were anything but dispassionate. Much of the passion generated by the election can be explained by its stakes. Bush supporters and Gore supporters truly believed that the good of the nation depended on their chosen candidate becoming President. But there is another explanation for the passion displayed in those legal battles. Both candidates believed that they had really won the election. The primary reason for Gore's belief was the thousands of voters who were apparently confused by the "butterfly ballot" employed in Palm Springs County. As Greene explains, "[t]he claim of the dismayed Democratic voters--that thousands of them went to the polling place [in Palm Beach County] to vote for Gore, but those votes were never registered--was always at the emotional core of Gore's argument that he had really won Florida." (p. 137) Gore's belief that he had won the election also stemmed from his more than 500,000 vote victory in the nationwide popular vote and from allegations of misconduct that prevented voters--especially African-American voters--from reaching the polls in Florida. Bush, by contrast, emphasized that the one objective means of counting the votes in Florida indicated that he won more votes than Gore, and that any subsequent manual counting was subject to purposeful or unintentional manipulation by the people charged with doing the counting. Conversely, each candidate viewed his opponent as trying to steal the election from him. Gore saw Bush as seeking to avoid the counting of the votes that would prove that Gore was the rightful winner of the election. Bush saw Gore as manipulating the recount procedure to manufacture enough "votes" to overcome the lead that Bush had gained through the one objective counting of the ballots. Whatever the merits of their respective positions, each candidate and his supporters were convinced that he had won Florida (and thus the election) and that his opponent was scheming to deprive him of that victory. The legal battles that followed evidenced those passionate beliefs.

   Greene reviews those battles in the book's five parts: (1) the nature of manual recounts, both generally and specifically in Florida; (2) the Bush objections to the decisions of the Florida Supreme Court that directed such recounts; (3) the United States Supreme Court's decision in Bush v. Gore stopping the recounts ordered by the Florida Supreme Court; (4) the "wildcard lawsuits" involving Palm Beach County's butterfly ballot and the mismanaged absentee ballot applications in Seminole and Martin Counties; and (5) the possible legislative responses by the Florida legislature to name its own slate of electors and by the United States Congress to decide who should serve as President. That organization nicely captures the building drama concerning the manual counting of ballots before turning to the other legal issues that could have determined the election. I will take a different approach here, though, which moves through the details of how we choose the President.

   The Constitution directs the electoral college to select the President. Greene explains the compromises that led the Framers to seize upon that method for choosing the nation's chief executive, and he relates Alexander Hamilton's subsequent "smashing piece of political rhetoric" that offered a principled...