2000 Election
Florida -- Lawyering, Supreme Court Decision
Ted
Cruz, a 29-year-old domestic-policy adviser on the Bush campaign at
the time and a former law clerk for Chief Justice William Rehnquist,
put together Bush’s legal team. One of his first calls was to John
Roberts, whom Cruz knew from the close-knit network of former
Rehnquist clerks, nicknamed the Cabal.
“We
started to assemble a team of the best lawyers and in particular the
best Supreme Court lawyers in the country, and John’s name
naturally came near the top of the list,” Cruz told The
New York Times in
2005. Roberts, who had clerked for Rehnquist in 1980 and was now in
private practice, caught the next flight to Tallahassee.
Roberts
had a long history of opposition to voting rights. As a young lawyer
in Ronald Reagan’s Justice Department, Roberts led the charge
against the 1982 reauthorization of the VRA [Voting
Rights Act],
writing more than two dozen memos criticizing the landmark
civil-rights law. Voting-rights violations “should not be made too
easy to prove,” he wrote, and would lead to “a quota system in
electoral politics.” Now he was helping the Bush team prevent
eligible votes from being counted.
Roberts
edited legal briefs, including the Bush campaign’s 50-page
submission to the Supreme Court, and prepared Theodore Olson, a
former assistant attorney general under Reagan, for oral arguments.
He also advised Florida’s governor, Jeb Bush, on how the state
legislature could assign its presidential electors to George W. Bush
before the recount was finished. “I really appreciate your input on
my role in this unique and historic situation,” Bush wrote to
Roberts.
Roberts’s
name appeared on no briefs, but his influence was unmistakable. “He
is one of the finest legal writers of his generation,” Cruz said.
“His editing pen was invaluable (Berman 5).
In
Miami-Dade … a manual recount of undervotes began to produce a
striking number of new votes for Gore. There, as in Palm Beach and
Broward, fractious Democratic and Republican lawyers were challenging
every vote the canvassing board decided. In Miami-Dade, Kendall
Coffey, tall and gaunt, was the Democrats’ eyes and ears. As the
Gore votes accumulated, he recalls, “panic buttons were being
pushed.”
On
Wednesday, November 22, the canvassing board made an ill-fated
decision to move the counting up from the 18th floor of the Clark
Center, where a large number of partisan observers had been able to
view it, to the more cloistered 19th floor. Angry shouts rang out,
and so began the “Brooks Brothers riot.”
Several
dozen people, ostensibly local citizens, began banging on the doors
and windows of the room where the tallying was taking place,
shouting, “Stop the count! Stop the fraud!” They tried to force
themselves into the room and accosted the county Democratic Party
chairman, accusing him of stealing a ballot. A subsequent report by
The Washington Post would
note that most of the rioters were Republican operatives, many of
them congressional staffers (Margolick
12-15).
IRS
documents would later show that these rioters were flown in from out
of state on private jets lent to the Bush campaign by supportive
corporations including Enron and Halliburton, put up gratis in local
hotels, and entertained by Wayne Newton singing “Danke Schoen,”
all courtesy of the Republican Party. Many were specifically
recruited by House Majority Whip Tom DeLay, and given directions from
a communications-equipped Winnebago by party operatives keeping
abreast of where their services might be best deployed.
Their rioters’
value was no doubt best demonstrated when, on November 22, a
Miami-Dade canvassing board attempted at one point to undertake the
hand recounts the courts had ordered. With just a few phone calls the
Republican street operation produced hundreds of “volunteers”
who, once engaged, according to Time, proved to be a “mob
scene … screaming … pounding on doors and … [threatening an]
alleged physical assault on Democrats … the Republicans marched on
the counting room en masse, chanting ‘Three Blind Mice,’ and
‘Fraud, Fraud, Fraud.’ … let it be known that 1,000 local
Cuban-American Republicans—[a group to whom violence as an
instrument of political intimidation is not exactly unknown]—were
on the way."
The
mob chased down the chairman of the local Democratic Party because it
falsely believed he had tried to steal a ballot. He required a police
escort to escape. Another Democratic aide says he was punched and
kicked by goons from the mob. Still others were trampled to the floor
as the mob tried to break down the doors of the room outside the
office of the Miami-Dade supervisor of elections where the votes were
being counted.
Longtime
GOP operative Roger Stone oversaw phone banks urging activists to
storm downtown Miami. The city’s most influential Spanish-language
radio station, Radio Mambi, called on the hard-right Cuban-American
community to head downtown to demonstrate. As Time
noted,
“Just two hours after a near riot outside the counting room, the
Miami-Dade canvassing board voted to shut down the count.”
No
legal charges were ever filed either against the rioters or their
political paymasters. The payments were documented in the hundreds of
pages of Bush committee records released to the IRS in July 2002
after a lengthy period of resistance and refusal (Alterman
3-4).
For
all the tumult in Miami-Dade, both sides had realized that the
presidency might well be determined not by hanging chads or overvotes
but by absentee ballots. Republicans seethed with rumors of ballots
by the bagful coming in from Israel—all, presumably, from Jewish
Democrats. Democrats envisioned thousands of ballots coming in from
military bases abroad—all, presumably, from Bush fans in uniform.
Lawyers
of both sides clashed. Should any
post-election absentee vote count, including those with late—or
no—postmarks? The Florida
Supreme Court ruled that
absentee ballots should not be rejected “for minor ‘hypertechnical’
reasons.” The Republicans gained 123
votes.
The
day before Thanksgiving, the Bush campaign turned to the United
States Supreme Court. Claiming that the situation in Florida had
degenerated into a “circus,” it asked the high court to stop
everything, and cited two highly technical federal issues for it to
consider. The first, based on an obscure law from 1887, prohibited
states from changing the rules after the date of that election. The
second, a jurisdictional issue, was that by stepping into the case
the Florida Supreme Court had usurped the Florida legislature’s
exclusive powers to set the procedures for selecting electors, as
provided for by Article II of the United States Constitution. The
Bush lawyers claimed, too, that the selective recounts violated
constitutional guarantees of due process and equal protection—meaning
the different criteria for recounting the ballots did not give equal
rights to all voters.
Bush’s
petition for certiorari—that is, for the Court to take the
case—went initially to Justice Anthony Kennedy, whose task it was
to consider all emergency motions from Florida, Georgia, and Alabama.
For Kennedy, then 64, a man known to relish the pomp and circumstance
of the Supreme Court and his own, often crucial role in close cases,
weighing such a momentous matter must have been glorious indeed.
Batting aside a Thanksgiving Day plea from the Gore campaign to pass
on the case, Kennedy urged his colleagues to take it on, suggesting
that the Court was absolutely the essential arbiter of such weighty
matters. He conceded, though, that Bush faced an uphill struggle on
the law.
…
As
was customary, the Court did not detail how many justices had voted
to hear the case, or who they were, and Gore’s lawyers didn’t
really want to know. At that point, they felt a certain faith in the
institution and in the law: it was inconceivable to them that the
Court would intercede, much less decide the presidency by a vote of
five to four. But the liberal clerks were more pessimistic. Why, they
asked, would a majority of the Court agree to consider the Florida
ruling unless they wanted it overturned and the recount shut down?
Certainly,
that was what the justices who’d opposed taking the case believed.
Convinced the majority would reverse the Florida court, they began
drafting a dissent even before the case was argued in court. It was
long—about 30 pages—and elaborate, written principally by Justice
Stevens, then 80, the most senior of the would-be dissenters and,
largely by default, the Court’s most liberal member ….
Meanwhile,
events in Florida took their own course. On Sunday, November 26, the
Palm Beach canvassing board sent an urgent request to Katherine
Harris, saying that in order to complete its manual recount it needed
two additional hours beyond the five P.M. deadline she had chosen to
enforce, rather than the Monday deadline the Florida Supreme Court
had offered her as an option. Harris conferred with Stipanovich and
answered no. As a result the county’s entire recount effort was
deemed null and void. That afternoon Harris certified the election,
claiming that Bush had won by 537 votes, a total that appeared to
include Bush’s net gain in absentee ballots, but none of the
recounted votes from Palm Beach or Miami-Dade. Gore’s lawyers
promptly contested the certification.
At
the Supreme Court, the liberal clerks handicapped the case pretty
much as the Gore camp did. At issue, as they often were in crucial
cases, were Justices Kennedy and O’Connor. But were both really in
play? At a dinner on November 29, attended by clerks from several
chambers, an O’Connor clerk said that O’Connor was determined to
overturn the Florida decision and was merely looking for the grounds.
O’Connor was known to decide cases on gut feelings and facts rather
than grand theories, then stick doggedly with whatever she decided.
In this instance, one clerk recalls, “she thought the Florida court
was trying to steal the election and that they had to stop it.”
Blithely ignorant of what view she actually held, the Gore campaign
acted as if she were up for grabs. In fact, the case would come down
to Kennedy.
Conservatives,
however, were not always happy with Kennedy, either. They had never
forgiven him for his votes to uphold abortion and gay rights, and
doubted both his intelligence and his commitment to the cause.
Convinced he’d strayed on abortion under the pernicious influence
of a liberal law clerk—a former student of the notoriously liberal
Laurence Tribe of Harvard Law School, who was representing Gore in
this case—they took steps to prevent any reoccurrences. Applicants
for Kennedy clerkships were now screened by a panel of right-wing
stalwarts. “The premise is that he can’t think by himself, and
that he can be manipulated by someone in his second year of law
school,” one liberal clerk explains. In 2000, as in most years,
that system surrounded Kennedy with true believers, all belonging to
the Federalist Society, the farm team of the legal right. …
…
Breyer
and Souter saw Kennedy’s new focus on equal protection as an
opportunity, suggesting during oral argument that if there were
problems with the fairness of the recount the solution was simple:
send the case back once more to the Florida Supreme Court and ask it
to set a uniform standard. Breyer, whose chambers were next door to
Kennedy’s, went to work on him personally. …
…
On
December 1, lawyers for the two sides argued their cases before the
Court. Laurence Tribe, an experienced and highly respected Supreme
Court advocate, seemed flat that day and off his game; the justices
appeared to chafe under what they considered his condescending
professorial style. Bush’s lawyer, Theodore Olson, who later became
solicitor general in John Ashcroft’s Justice Department, was more
impressive, but then again, he was playing to a friendlier audience.
Rehnquist and Scalia hinted that they favored the claim that the
Florida Supreme Court had encroached upon the Florida legislature’s
exclusive turf. Both O’Connor and Kennedy also voiced irritation
with the Florida court. It did not augur well for Gore.
…
By
December 4, all nine justices had signed on to the chief justice’s
opinion. The unanimity was, in fact, a charade; four of the justices
had no beef at all with the Florida Supreme Court, while at least
four others were determined to overturn it. But this way each side
could claim victory: the liberal-to-moderate justices had spared the
Court a divisive and embarrassing vote on the merits, one they’d
probably have lost anyway. As for the conservatives, by eating up
Gore’s clock—Gore’s lawyers had conceded that everything had to
be resolved by December 12—they had all but killed his chances to
prevail, and without looking needlessly partisan in the process. With
the chastened Florida court unlikely to intervene again, the election
could now stagger to a close, with the Court’s reputation intact,
and with Bush all but certain to win.
On
Friday, December 8, however, the Florida Supreme Court confounded
everyone by jumping back into the fray. By a vote of four to three,
it ordered a statewide recount of all undervotes: the more than
61,000 ballots that the voting machines, for one reason or another,
had missed. The court was silent on what standard would be
used—hanging vs. pregnant chads—and so each county, by inference,
would set its own. As they watched televised images of bug-eyed
Florida officials inspecting punch-card ballots for hanging, dimpled,
or pregnant chads, the Supreme Court clerks knew the case was certain
to head back their way.
Sure
enough, the Bush campaign asked the Court to stay the decision and
halt the recount. In a highly unusual move, Scalia urged his
colleagues to grant the stay immediately, even before receiving
Gore’s response. Gore had been narrowing Bush’s lead, and his
campaign expected that by Monday he would pull ahead. But Scalia was
convinced that all the manual recounts were illegitimate. He told his
colleagues such recounts would cast “a needless and unjustified
cloud” over Bush’s legitimacy. It was essential, he said, to shut
down the process immediately. The clerks were amazed at how baldly
Scalia was pushing what they considered his own partisan agenda.
Scalia’s
wish was not granted. But at his urging, Rehnquist moved up the
conference he’d scheduled for the next day from 1 in the afternoon
to 10 that morning. In the meantime, the conservative justices began
sending around memos to their colleagues, each of them offering a
different rationale for ruling in Bush’s favor; to the liberal
clerks, it was apparent that the conservatives had already decided
the case and were merely auditioning arguments.
… Finally,
shortly before three o’clock, the Court granted the stay. No more
votes would be counted. Oral arguments were set for the following
Monday, December 11.
Gore
and his team were crushed, but neither he nor his lawyers had given
up. Even at this late date, Gore naïvely defended the good faith of
the justices. “Please be sure that no one trashes the Court,” he
instructed his minions. His lawyers still hoped that Kennedy or
O’Connor or both could be won over; perhaps they could be peeled
away from the conservative bloc as they had been several years
earlier to preserve Roe
v.
Wade.
…
The
encounters between the two men must have been extraordinary: with the
presidency of the United States hanging in the balance, two ambitious
jurists—each surely fancying himself a future chief justice—working
on each other. And for a brief moment Breyer appeared to have
succeeded. At the conference following the oral argument, Kennedy
joined the dissenters and, at least temporarily, turned them into the
majority. The case would be sent back to the Florida court for
fixing; the recount would continue. But the liberal clerks never
believed that Kennedy had really switched, and predicted that, having
created the desired image of agonizing, he would quickly switch back.
“He probably wanted to think of himself as having wavered,” one
clerk speculates. And, sure enough, within a half-hour or so, he did
switch back.
…
Breyer
lamented that he had Kennedy convinced, only to have his clerks work
him over and pull him back in the other direction (Margolick
12-15).
…
Breyer
and Souter saw Kennedy’s new focus on equal protection as an
opportunity, suggesting during oral argument that if there were
problems with the fairness of the recount the solution was simple:
send the case back once more to the Florida Supreme Court and ask it
to set a uniform standard. Breyer, whose chambers were next door to
Kennedy’s, went to work on him personally. …
it
became apparent that Kennedy and O’Connor would not join
Rehnquist’s opinion on jurisdiction, and would decide the case
strictly on equal-protection grounds.
…
As
the drafts began circulating, tempers began to fray. In an unusual
sealed memo—an unsuccessful attempt to avoid the clerks’ prying
eyes—Scalia complained about the tone of some of the dissents. He
was, he confessed, the last person to criticize hard-hitting
language, but never had he, as the dissenters were now doing, urged
the majority to change its decision based on its impact on the
Supreme Court’s credibility. He charged that his opponents in the
case were inflicting the very wounds to the Court that they had
supposedly decried. …
Kennedy,
too, sent around a memo, accusing the dissenters of “trashing the
Court.” Eager to suggest to the outside world that the Court was
less divided than it appeared, he charged that the dissenters agreed
with the equal-protection argument more than they were willing to
admit. …
…
The
Court’s opinions were issued at roughly 10 o’clock that night. …
(Margolick 16-20).
The
Court asserted that the recount violated the equal-protection clause
of the 14th Amendment— established in 1868 to secure the rights of
African-Americans—because there was no uniform statewide standard
for counting disputed ballots in each county. In a draft of her
dissent, Justice Ruth Bader Ginsburg observed in a footnote that if
there was any equal- protection violation in Florida, it was because
black voters encountered a disproportionate number of problems
voting. Justice Antonin Scalia, her closest friend on the Court,
objected to Ginsburg’s “Al Sharpton” footnote, according to
The
New Yorker’s Jeffrey
Toobin, and she took it out. When one read the
Bush
v. Gore decision, it was
as if the disenfranchisement of black voters had never occurred
(Berman 7).
There
were two more extraordinary passages: first, that the ruling applied
to Bush and Bush alone, lest anyone think the Court was expanding the
reach of the equal-protection clause; and, second, that the Court had
taken the case only very reluctantly and out of necessity. “That
infuriated us,” one liberal clerk recalls. “It was typical
Kennedy bullshit, aggrandizing the power of the Court while
ostensibly wringing his hands about it.”
Gore’s
lawyers read him the ruling. At last he concluded that the Court had
never really given him a shot, and he congratulated his legal team
for making it so hard for the Court to justify its decision.
…
O’Connor
confessed surprise at the anger that greeted the decision, but that
seemed to reflect naïveté more than any sober second thoughts. On
her 71st birthday, in March 2001, she was sitting in the Kennedy
Center when Arthur Miller, the playwright, denounced what the Court
had done. Around Washington, a few people stopped shaking her hand,
and Justice Scalia’s too; the consensus has since grown that
because of Bush
v
Gore,
he
can never be named chief justice.
…
Ultimately,
only the five justices in the majority know how and why they decided
the case as they did and whether they did it in good or bad faith.
Perhaps even they don’t know the answer. An insider was asked if
the five would pass a lie-detector test on the subject. “I honestly
don’t know,” this insider replies. “People are amazing
self-kidders” (Margolick 12-17).
Bush
v. Gore has
been regarded as one of the most politically consequential decisions
in the history of the court, and one that damaged the court's
preferred image of itself as an institution far removed from everyday
partisan politics (Elving
3-5).
Gore
could theoretically have asked the Florida Supreme Court to order a
statewide recount with more explicit standards. But he took the
advice of one of his lawyers, who told
him
that this would “cause a tremendous uproar.” And in any case, as
the book “Deadlock”
later put it, “the best Gore could hope for was a slate of disputed
electors” — i.e., he might become president, but Republicans
would complain about it.
Thus,
Gore [on December 13, 2000] conceded to Bush again, in a speech full
of high-minded rhetoric about “the law” and how his surrender
could “point us all to a new common ground.” Bush officially won
Florida by 537 votes and the Electoral College by 271-266 and went on
to become one of the most catastrophic presidents in U.S. history
(Schwartz 7).
Works
cited:
Alterman,
Eric, “Florida 2000 Forever.”
Center for American Progress,
December 9, 2010. Web.
https://www.americanprogress.org/issues/general/news/2010/12/09/8828/think-again-florida-2000-forever/
Berman,
Ari, “How the 2000 Election in Florida
Led to a New Wave of Voter Disenfranchisement.” The
Nation, July 28, 2015. Web.
https://www.thenation.com/article/archive/how-the-2000-election-in-florida-led-to-a-new-wave-of-voter-disenfranchisement/
Elving,
Ron, “The Florida Recount Of 2000: A
Nightmare That Goes on
Haunting.” NPR
November 12, 2018. Web.
https://www.npr.org/2018/11/12/666812854/the-florida-recount-of-2000-a-nightmare-that-goes-on-haunting
Margolick,
David, “The Path to Florida.”
Vanity Fair,
March 19, 2014. Web.
https://www.vanityfair.com/news/2004/10/florida-election-2000
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