Judicial Jabberwocky in the Presidential Election 2000: When Law and Facts Collide With Politics - Theresa H. Hammond

• Jurisdiction: United States,Federal
• Publication year: 2001
• Citation: Vol. 52 No. 4

Comment

Judicial Jabberwocky in the Presidential Election 2000: When Law and Facts Collide with Politics

I. Introduction

Long before the United States Constitution was ratified, Americans displayed a deep skepticism of the judiciary.¹ Codification of extremely detailed and complex laws was the palliate to judicial activism.² People believed that if the laws were all published and readily accessible, judges would have less ability to substitute their own personal values and predilections for the will of the people, established through the legislation promulgated by their chosen representatives. Hamilton's first essay on the judiciary assured New Yorkers that "the judiciary is beyond comparison the weakest of the three departments of power" and that"the liberty of the people can never be endangered ... so long as the judiciary remains truly distinct from both the legislative and executive."³ But history has revealed that the judiciary wields great power in its ability to engineer social change under the guise of "interpreting" the Constitution or statutes.⁴ Judicial activism is not only quite often expected, it is also praised—by those who support the result.⁵

A significant distinction must be made, however, between a good decision and a desirable result. A good decision is a principled one: a decision reached by using accepted tools of construction and recognizing both the appropriate role of the judiciary as the nonpolitical branch and the limited role of the judiciary in deciding social policy, regardless of whether the decision-maker necessarily agrees with the outcome. This distinction is too often glossed over by those who find that the end, which is necessarily value-laden, is justified by the means, usually judicial overreaching. However, the integrity of our tripartite governmental structure simply must be elevated over the expediency of a desired result. A contrary approach leads to judicial legislating such as that of Roe v. Wade,⁶ which robs the people of their ability to discuss and decide controversial issues for themselves, and to "truisms" such as that offered by one lawyer: "I don't want to know what the law is, [sic] I want to know who the judge is."⁷

The presidential election debacle in Florida epitomizes judicial overreaching in order to obtain a particular result.⁸ While mostAmericans watched the goings-on as a fascinating, or frightening, political battle, those in the legal profession understood the serious implications of the court's being drawn into that battle. The opinions of the Supreme Court of Florida—once stripped of their ramifications for the presidential candidates—were simply unjustifiable as good legal decisions. The court issued two significant opinions during the thirty-six day election: Palm Beach County Canvassing Board v. Harris, ("Palm Beach")⁹ in which the court suspended a statutory deadline as an exercise of its "equitable" power, and Gore v. Harris,¹⁰ in which the court ordered a statewide manual recount of undervotes for presidential candidates.¹¹ Neither opinion bears close scrutiny.¹² In their apparent haste to reach a desired result, the justices departed from traditional standards of review, gave mere lip service to canons of statutory construction, clearly departed from legal precedents, and reached a conclusion antithetical to their purported purpose of ensuring the integrity of the rights of Florida voters. In so doing, the court abdicated its limited role in the operation of our government—a role that does not include choosing a President.¹³

II. Background of the Presidential Election in Florida

Elections are, by definition, political events and can become ugly, particularly national elections in which the sum expended by the candidates is astronomical and the stakes are very high.¹⁴ As in every other state in the nation, Florida voters went to the polls on November 7, 2000, to cast their votes for their preferred candidates for various political offices, including that of President of the United States.¹⁵ Because the result of the presidential race was so close in Florida,¹⁶ a statewide automatic recount was conducted according to statute,¹⁷ yielding the same ultimate result: George W. Bush received more votes for President than did Al Gore.¹⁸ Worth noting is that the "automatic" recount can be waived by the defeated candidate who requests in writing that the recount not be conducted.¹⁹

On November 9, 2000, the Florida Democratic Executive Committee, pursuant to state law,²⁰ protested the election results and requested a manual recount in Palm Beach, Miami-Dade, Broward, and Volusia Counties,²¹ all of which are heavily populated and heavily Democratic and which Gore won by a sizable margin.²² The selection of these four counties was clearly a political maneuver, as could be expected in a political battle of this magnitude, because the fact that former Vice President Gore won those precincts and counties was undisputed. Instead, the reason for the protest was the closeness of the election outcome.²³ This was not the first close election America has ever had; it was not even the closest.²⁴ However, it was the first time in American history that a presidential candidate requested a recount of votes.²⁵ What is more, it was the first time in Florida history that a request for a recount was granted merely because the election was close and the machine recounts reflected different outcomes.²⁶ Further, neither undervoting nor overvoting is a new occurrence, as the various Supervisors of Elections acknowledged.²⁷ Yet, each of the four county canvassing boards decided to exercise its discretion and grant the Democratic Party's request for an initial manual recount.²⁸

The Democratic Party selected the three precincts in each county whose ballots would be hand counted,²⁹ and all were heavily Democratic.³⁰ Following this initial manual recount, each of the four counties³¹ voted to conduct full manual recounts under Section 102.166(5)(c),³² although the methods by which they concluded that the outcome of the election could be affected were not at all clear. Rather, the number of net votes that Gore gained from the most heavily Democratic voting precincts in the most heavily Democratic counties could be considered negligible.³³ Whether the net gains for each county were accurately extrapolated across the respective counties to suggest that the results of the initial count could affect the outcome of the election was shown to be doubtful during the election contest.³⁴ For example, in Palm Beach County, the Canvassing Board "recovered" 19 votes for Gore from the 4,620 votes counted, which was roughly one percent of the total votes. The Board erroneously concluded that a full recount of the entire county would show a gain for Gore of 1,900 votes.³⁵ But this clearly ignores the fact that the initial 19 vote gain was obtained in the most heavily Democratic precincts and this gain could not accurately be presumed to hold in the Republican-leaning precincts.

The Palm Beach Canvassing Board sought an advisory opinion from the Division of Elections to determine whether it could lawfully conduct a manual recount based on the discrepancy between the result of the machine counts and that of the initial hand count.³⁶ The Division of Elections responded that manual recounts should be conducted only if the voting system had malfunctioned.³⁷ However, the Attorney General of Florida issued a conflicting advisory opinion to Palm Beach,³⁸ despite the fact that his authority to issue the opinion seemed doubtful in light of the legislature's explicit grant of jurisdiction to the Department of State's Division of Elections over election matters³⁹ and notwithstanding both his refusal to entertain requests for his opinion in previous election matters⁴⁰ and his disclaimer published on his official website.⁴¹

Because of delays in deciding to recount and then in actually starting the recount with all canvassing board members present, Palm Beach and Broward Counties informed the Secretary of State that they would be unable to meet the statutory deadline for submitting the results of their manual recounts.⁴² Palm Beach filed a petition with the state supreme court ostensibly for the purpose of declaring which of the two advisory opinions⁴³ regarding the legality of conducting manual recounts based on voter error was correct.⁴⁴ Meanwhile, the Gore campaign, along with Volusia and Palm Beach Counties, appealed an order by Judge Terry Lewis that the Secretary of State had complied with Florida law in refusing to accept late-filed returns by four counties.⁴⁵

The Supreme Court of Florida ordered a stay preventing the Secretary of State from certifying the results of the election and allowing the manual recounts to continue.⁴⁶ After hearing oral arguments, which were televised, the court issued its highly questionable opinion, in which it determined that manual recounts were permissible in the absence of any showing of fraud, misconduct by election officials, or machine malfunction and that the statutory deadline need not be observed.⁴⁷ The United States Supreme Court vacated this opinion and remanded the case to the Florida court, instructing the state court to explain the basis for its opinion, the extent to which the court relied upon the state constitution in rendering its decision, and the extent to which, if any, the court considered 3 U.S.C. Sec. 5⁴⁸ in its deliberations.⁴⁹ Astoundingly, the Florida Supreme Court virtually ignored this directive, issuing its revised and sanitized version of its initial opinion on December 11,⁵⁰ three days after it issued an order to conduct a statewide manual recount of undervotes in the presidential election⁵¹ —a decision that shocked even the Gore attorneys who had booked their flights home.⁵² As a context for the court battles between the two politicians, worth noting is that Republicans sought solace in the federal court system to have the...