Sunday, February 14, 2016

The United States Supreme Court Did Not Determine the Outcome of the 2000 Presidential Election

           The passing of United States Supreme Court Justice Antonin Scalia has led some commentators to revive the myth that the Court determined the outcome of the 2000 presidential election by effectively selecting George W. Bush President.  Scalia authored the majority opinion in the Bush v. Gore case that ended additional recounts for Electors in Florida and thus settled the process of the election, but there was no circumstance in which Bush would not have been elected President, regardless of the Court’s ruling.

After the Republican ticket of Bush-Cheney’s slate of presidential and vice presidential Electors in Florida won the count and the statewide recount by a few hundred votes out of millions cast, the campaign of Democratic ticket Gore-Lieberman demanded partial recounts in heavily-Democratic areas.  The Supreme Court ruled 7-2 in favor of plaintiff Bush that the partial second recounts defendant Albert Gore had requested violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution because each county applied different standards of interpreting voter intent and thus votes were being counted in one place within the State and not in another.  

Indeed, the Democratic strategy had been to continue to recount the votes until, by some statistical chance, their ticket’s Electors would have won the most votes, which is why the Gore-Lieberman campaign only wanted to recount the votes in favorable areas.  Then the Democrats would have insisted on stopping any further recounts.  They knew that a statewide recount was less likely ever to produce a winning result for the Gore-Lieberman slate of Electors.  Their only possible chance of success was with partial recounts, but the Supreme Court struck those down.

            The question then arose as to whether to allow a second statewide recount of all of the votes under a single standard of the interpretation of voter intent.  The Supreme Court barred such a recount because, as Scalia explained in his opinion, the evidence (perforated paper ballots into which voters would punch holes to indicate preferences) would have been spoiled by further handling.  He was also concerned that the delay in determining the election results was undermining confidence in the electoral process and shortening the transition period for the incoming president.  Had there been another recount, partial or statewide, the apparent losing party would have been allowed to challenge those results and demand yet another recount.  And that cycle could have continued with another recount, each time with the evidence being handled further while the only partially-perforated holes were increasingly likely to appear fully-perforated, and thus votes would be manufactured by those handling the ballots, until the time would have run out for Florida’s Electors to be certified in order to participate in the vote of the Electoral College. 

The outcome of the presidential election would not have changed had the recounts been allowed to continue.  It is important to note there were no significant allegations of election fraud or other irregularities to the benefit of the Bush-Cheney slate of Electors and no recounts of any kind that have been attempted by private citizens after the fact have demonstrated any other result but that the Republican ticket’s Electors received the most votes.  To the contrary, there were a number of instances of fraud or irregularities that likely benefited the Democratic ticket, such as the scores of mostly Democratic voters who voted in both Florida and other States.  Regardless of the results of any recounts, the Democratic argument that the Bush-Cheney ticket’s Electors were not validly elected is contradictory.  It relies upon the theory that because the outcome of the election was too close to be certain that the Republican Electors had won, therefore there is certainty that the Republicans had lost and Bush was thus not validly elected President because the Bush-Cheney slate of Electors were not validly elected.  It is one thing to question the certainty of the popular election results for Florida’s Electors, but another to insist at the same time with certainty that the Bush-Cheney Electors had lost, let alone to advance the conspiracy theory that Bush had lost the election and the Supreme Court “selected” the President in some kind of a coup d’etat.  The only ones in the disputed Presidential Election of 2000 who violated the Constitution was the Gore-Lieberman campaign.

With the uncertainty fostered by the Democrats about the choice of Florida’s voters, the House of Representatives could not have accepted the votes from Florida’s Electors if it had any doubt about the validity of their election.  Indeed, it was precisely that uncertainty that caused the Florida Legislature, to the contradictory objection of the Democrats, to consider appointing the Bush-Cheney slate of Electors, even with the outcome of the election for Electors undetermined, lest the State be disenfranchised in the Electoral College and Floridians been excluded from expressing their preference, as none of their votes would have counted by the House, in contrast to the Democratic insistence that “every vote” be counted.  The Article II, Section 2 of the Constitution requires that State Legislatures appoint Electors, but leaves it to their discretion as to how to choose the Electors.  Popular elections for Electors are not required in the first place.  Just as a legislature could veto the popular choice and appoint a different slate of Electors than the ones nominated by the party whose ticket receives the most votes, it surely has the right to appoint them when the popular will is indeterminate.  In fact, their power to appoint Electors is a remedy for an election for which the results were too close to be certain.  As Republicans were in the majority in both houses of the Florida Legislature at the time, the Legislators likely would have appointed the Republican slate of Electors.  These Electors voted in the Electoral College for Bush and Cheney.

The House of Representatives, whose responsibility it is to review the results of the presidential election by the Electoral College and even the eligibility of Electors to cast ballots, would have had no valid reason to deny the votes of Florida’s Electors and Bush’s election by the Electoral College would have been ratified by the House.  Even if some Democrats had succeeded in obtaining a majority vote in the Republican-majority chamber to not count of Florida’s ballots, despite their slogan of “counting every vote,” Bush still would have been elected President, as the House would have had to vote because, without the votes of Florida’s Electors, no candidate would have received a majority of electoral votes.  The House would have conducted the presidential election by voting by state delegation.  As a most of the States’ House delegations were Republican majority, the House would likely have voted to elect Bush President.  Note: the only outcome of the 2000 election that could possibly have been different from what occurred had the recounts for Electors continued was the election by the Senate of the Vice President, as its Democratic majority may have voted for Joseph Lieberman.  

The Supreme Court did not in Bush v. Gore effectively elect or “select” the President by ending the recounts for Electors.  At most, their ruling ended the uncertainty about the election by allowing Florida finally to certify the Bush-Cheney ticket’s slate of Electors, as there was no serious doubt they had received the most popular votes and whom Florida’s Legislature could simply have appointed anyway, regardless of whether or how the Court had ruled.  In 2000, as in every presidential election, except in 1800 and 1824, when the House elected the President, the Electoral College elected the President.  No President is ever popularly elected, but elected by the Electors who are not constitutionally bound to vote according to the apparent popular preference in their House district or State.  Therefore, George W. Bush was as validly elected as every other President. 

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