When the law doesn't count: the 2000 election and the failure of the rule of law.

AuthorScheppele, Kim Lane

In the movie Monty Python and the Holy Grail,(1) the unconvincing-looking but immensely self-confident King Arthur and his rag-tag band of knights gallop on their imaginary horses through the wild forest in search of the Holy Grail. Encountering one obstacle after another, our heroes (for they are clearly meant by the logic of storytelling to be our heroes)(2) overcome these challenges by making the most of the distinctly unroyal conduct of quibbling, distracting the opposition, and sometimes just running away.(3) At one point in their quest, however, the path of Arthur's little band is physically blocked by giant human figures dressed in forbidding black armor, screaming in chorus. Their leader introduces them as "Knights Who Say NI!" The Knights' main weapon is to shout "NI!" (also sometimes "Peng," "Neee," and "Wom") at the unhappy group in particularly shrill voices, causing our heroes to recoil and cover their ears. And, following fairytale convention, the Knights will not let our heroes pass until the heroes perform a brave feat. The brave feat the Knights have in mind? Our heroes need to bring them something.(4) And what do the Knights demand? "We want," they say, "a shrubbery!"(5)

As storytelling rules dictate, our heroes go off in search of shrubbery. And, after overcoming more obstacles designed to test their courage and strength,(6) our heroes find the prize: a rather attractive-looking planting with a white picket fence all around. Pleased with themselves, they deposit the shrubbery before the Knights, who are somehow still dissatisfied. The reason for their dissatisfaction? The Knights Who Formerly Said NI! are now "the Knights Who Say Neeeow ... wum ... ping!," and they now claim that "we are no longer contractually bound by any agreements previously entered into by the Knights Who Say NI!" What do the Renamed Knights now want? "You must get us [pregnant pause] another shrubbery!"(7)

The movie-going audience, together with Arthur and his Knights, realize at this point that they are in an endless loop. The Knights Who Say NI! (or Neeow ... wum ... ping!, as the case may be) will never be satisfied; their demands are endless and they will always want something that our heroes haven't done. This violates fairytale conventions, which require that our heroes be tested, that they prove their merit, and, when they have met the challenge, that they be then, by right, allowed to pass. But the Knights Who Say NI! don't seem to know the formula. They are caught outside the standard story line in an endless loop of their own. From the sidelines, we can shout, "They've done what you asked--now let them pass!" But the Knights Who Say NI! scream the magic words that are designed to disable their hapless victims so loudly that they drown out everything else.

From the moment that Election 2000 failed to produce a clear result on election day, Al Gore and his modern-day knights set off on a journey through Florida's legal forest, encountering one obstacle after another in their effort to "count every vote."(8) Fairytale convention dictated that, after proving his courage and his strength by acquiring the various court permissions he won along the way in the state of Florida, Gore should be allowed to recount the ballots to see if, in fact, he had won.(9) This is one reason why it seemed particularly unfair when the U.S. Supreme Court suddenly stopped first the count and then the election, announcing an ambitious set of criteria for recounting that would have required much "additional work" to specify(10)--and yet the Supreme Court's own timing gave Gore no opportunity to meet the new standards. The decision left supporters of both Al Gore and George W. Bush with a sense that the drama didn't have a proper conclusion.(11) After the immense tension of the thirty-six days when the election hung in the balance, the whole vote-counting contest was simply called off by a Supreme Court decision. The election ended with the spectacle of a group of television reporters and legal commentators frantically trying to read and summarize on-air a sixty-page set of decisions that did not have a clear result. The case was reversed and remanded back to the Florida Supreme Court for proceedings consistent with the opinion(12)--but there were no further procedures that could have been consistent with the opinion except a Florida Supreme Court judgment saying that nothing could be done. The best reporters and legal commentators could do immediately was to say that they thought Gore might have conclusively lost but that they would wait for Gore to announce what he thought the decision meant. Gore conceded the next day. The Florida Supreme Court, whose critical decision the U.S. Supreme Court found wanting, conceded the day after that.(13)

From childhood tales, we know how these stories are supposed to turn out. In one of the two usual scenarios, the hero is supposed to be killed off as he performs the feats he has been asked to accomplish. If he is cut down as he tries to meet the challenges he has been given, he is exposed as a false hero.(14) Alternatively, in the other scenario, if the hero satisfies the requirements laid down, then he must be allowed to pass, since he is the true hero after all.(15) It is not supposed to happen that the hero satisfies the requirements only to find that he has to go back and start all over again(16) with a new set of rules. (And even if there are new rules, they are not supposed to be announced when there is no longer time to play the game under them.) Once the Grail-seekers have found the shrubbery as they were originally asked to do, they should not have to go off to hunt for more bushes that weren't on the list in the first place, especially when the order announcing new requirements comes from the same people who gave the initial instructions and who now claim that they are no longer bound by the standards that they first announced. Or, in the case of the election, once the ground rules are set so that the candidate who gets the most votes wins, the contest shouldn't shift to guessing what magic formula would allow the votes to be counted.

That's fairytale logic. But it is also the logic of the rule of law. Legal requirements should not keep shifting as a quest for justice goes on. Of course, in any moderately complex legal system, judgments by lower courts sometimes change when an appeal results in conflicting interpretations of law (or in reversals and remands) because the rule of law typically guarantees a certain course of reexamination to check the results an initial court reaches. Each of these shifts can ultimately result in a change in who concretely wins at different stages of the process, but such changes should also result in a clarification of what the law required at the time that the contested actions were performed. Ideally, also, the winner at the last stage should be the one that had the best of the principles everyone knew were in play all along. The process of successive legal judgments in the same case should not keep shifting the ground out from under the litigants so that, in the end, the case is decided by rules that did not seem to be in existence when the case was begun or that had been discarded along the way as irrelevant only to be picked up as decisive later on. Law shouldn't be a game of "gotcha."

Regardless of one's political views on which party had the better policy positions in the election and the better legal arguments in the subsequent court cases, both the Bush and Gore sides were disserved by the public spectacle of a court system that could not fix a stable set of principles that got clearer as appeals went on. Gore, in particular, found himself in a succession of "Catch 22s," in which the next logical legal step required completion of some subsequent step that he could not attempt until he had already taken the next logical step.(17) In the end, the Catch 22 dilemmas proved fatal for Gore because, when confronted with an impossible next step, the status quo at the point of impossibility always wins. And George W. Bush's most powerful resource during the thirty-six-day rollercoaster ride was that he had the status quo going for him. The legitimacy of Election 2000, however, is clouded because it is hard to describe the process that occurred as one that deeply respected legality though it was decided by America's highest court, which in the end pulled a constitutional rabbit out of the election-litigation hat. The various decisions issued by multiple courts and handed down with great speed in November and December 2000, taken together, do not reveal a process befitting a government committed to the rule of law. In the end, as Justice Stevens, dissenting from the Supreme Court opinion that ended the recounts, argued:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.(18) At the start of the twenty-first century, America has portrayed itself as a state that makes a commitment to the rule of law something it claims for itself and also demands of other states. Unlike some other constitutions,(19) however, the U.S. Constitution does not have an explicit rule-of-law clause.(20) The United States therefore has no explicit rule-of-law jurisprudence in the sense that has become typical in a number of other constitutional democracies. One lesson of modern history, however, is that the basic requirements of the rule of law are not optional in a constitutional state. Germans learned this lesson especially well...

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