Presidential Election Trials: 2000

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Presidential Election Trials: 2000

Plaintiff: Al Gore
Defendants: George W. Bush, Katherine Harris
Chief Lawyers for Plaintiff: David Boies, W. Dexter Douglas, Bruce Rogow, Laurence H. Tribe, Stephen Zack
Chief Defense Lawyers: Philip Beck, Benjamin L. Ginsberg, Theodore B. Olson, Barry Richard, George Terwilliger (Bush); Joseph P. Klock, Jr. (Harris)
Judges: Leon County, Florida, Circuit Court: Terry P. Lewis, N. Sanders Sauls; Broward County, Florida, Circuit Court: John Miller; U.S. District Court: Donald Middlebrooks; Supreme Court of the State of Florida: Charles T. Wells, Harry Lee Anstead, Major B. Harding, R. Fred Lewis, Barbara J. Pariente, Peggy A. Quince, Leander J. Shaw, Jr.; Supreme Court of the United States: William H. Rehnquist, Stephen G. Breyer, Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, Antonin Scalia, David H. Souter, John Paul Stevens, Clarence Thomas
Places: Atlanta, Georgia; Miami and Tallahassee, Florida; Washington, D.C.
Dates of Hearings and Trials: November 11-13, 2000 (Judge Middlebrooks); November 14, 2000 (Judge Lewis); November 14, 2000 (Judge Miller); November 15-16, 2000 (Florida Supreme Court); November 16-17, 2000 (U.S. Court of Appeals, Atlanta); November 17, 2000 (Judge Lewis); November 20-21, 2000 (Florida Supreme Court); December 1-4, 2000 (U.S. Supreme Court); December 2-4, 2000 (Judge Sauls); December 7-8, 2000 (Florida Supreme Court); December 9-12, 2000 (U.S. Supreme Court)

SIGNIFICANCE: After all the dates of hearings and trials and appeals, with all their specifics of fact and expressions of opinion, have long been forgotten, the world will still know that the 36 days of the 2000 presidential election trials amount to but one significance: The rule of law endures. The extraordinary U.S. system of legal institutionsa system, someone once said, "designed by geniuses so it could be run by idiots"maintains its strength regardless of political pressures.

It all began on election day, Tuesday, November 7, 2000. That evening, before polls were closed in all 50 of the United States or even Florida's western panhandle, television news reporters projected Democratic presidential candidate Al Gore as the winner in the state of Florida over Republican candidate George W. Bush. Later, they retracted the projection. By early next morning, they said the lead in Florida hinged on a few hundred votes, and by this time it was clear that Florida's 25 electoral votes would be decisive in the national outcome. With several news organizations declaring Bush the winner, Gore called the Texas governor to concede the election. Then, upon hearing later projections, he retracted the concession before dawn on Wednesday. A day-by-day, court-by-court drama followed.

Thursday, November 9

Forty-eight hours after the polls closed, a still-incomplete count gave Bush the lead by 1,784 votes. Election officials in 67 Florida counties ordered recounts of their machine votes.

Manual Recounts Requested

Friday, November 10

Complete in all but one county, recounts now gave Bush a lead of just 327. The Democrats formally requested manual recounts in Miami-Dade, Broward, Palm Beach, and Volusia counties, all four of which voted heavily Democratic.

Saturday, November 11

Palm Beach County announced it would manually recount all 462,657 ballots cast there. Bush sued in U.S. District Court in Miami to halt the manual counting. His lawyers argued that voters would not be treated equally (the Constitution's Fourteenth Amendment guarantees everyone equal protection of voting rights) because no uniform standard governs hand counts.

Monday, November 13

Judge Donald Middlebrooks rejected the Bush contention, declaring that election mechanics are a state, not federal, issue. Now Florida election officials announced that they would certify the statewide results, except for overseas absentee ballots, by 5:00 p.m. next day. The Gore campaign, along with Palm Beach and Volusia counties, immediately sued to extend that deadline.

Tuesday, November 14

Leon County Circuit Court judge Terry P. Lewis upheld the official deadline but said Florida's Republican secretary of state Katherine Harris was not to disregard hand recounts that might arrive after the deadline.

Broward County Circuit Court judge John Miller refused to grant an injunction, sought by Republican lawyers, to keep Broward County from conducting a manual recount. A recount of machine votes and of Volusia County's hand ballots put Bush ahead by 300 votes. At 5:00 p.m., the secretary of state certified this result but said it did not include overseas absentee ballots legally entitled to arrive later. She also gave counties doing hand counts until 2:00 p.m. next day to revise their results.

Manual Recounts Begin

Wednesday, November 15

The Broward County canvassing board decided to start manually recounting all 587,928 ballots cast there. At the same time, Secretary of State Harris rebuffed requests that recounts in Broward and Palm Beach counties be included in her statewide certification. The Gore campaign appealed that turndown to the Florida Supreme Court, all seven of whose members had been appointed by Democratic governors.

Thursday, November 16

The state supreme court said manual recounts in Palm Beach and Broward counties would be permitted.

Before the U.S. Court of Appeals in Atlanta, the Bush campaign argued that hand counts are unconstitutional, while the Gore campaign insisted the matter was a state, not federal, issue.

Friday, November 17

The federal court in Atlanta refused the Bush request to stop hand counts, and the Miami-Dade County election board voted to go ahead with its hand recount.

As the nation became educated about "chads," the bits of paper punched out of ballots by voters so machines could count the holes, Broward County judge John Miller decided the county canvassing board could count such a punch-card ballot as a vote, even when no hole was punched, if a "dimple" showed that the voter had tried to punch the hole. Television news now endlessly depicted board members holding ballots up to the light or squinting at them inches from their noses.

Leon County Circuit Court Judge Terry P. Lewis decided the Secretary of State was permitted to certify the election results and declare a winner without hand recounts. Gore again appealed.

The Florida Supreme Court, acting on its own motion and pending its consideration of the appeal, put a hold on Judge Lewis's decision.

Monday, November 20

The Florida Supreme Court listened to arguments by Bush and Gore attorneys on whether hand counts should be included in the final tally of votes, and on Secretary of State Harris's claim that she was authorized to ignore all late returns.

Florida Supreme Court Rules

Tuesday, November 21

Ruling unanimously, the seven Florida justices decided hand counts must be included in final voting results unless they were "submitted so late that their inclusion will preclude Florida's voters from participating fully in the federal electoral process." They set 5:00 p.m. Sunday, November 26, for the secretary of state's certification of the winner of Florida's electoral college votes.

Wednesday, November 22

In Washington, Bush attorneys filed an appeal to the U.S. Supreme Court. Their brief argued that the Florida Supreme Court had rewritten state election statutes following the election.

Back in Florida, Miami-Dade County, insisting that it could not complete its recount by the November 26 deadline, stopped counting.

Thursday, November 23 (Thanksgiving Day)

The Gore campaign asked the Florida Supreme Court to order Miami-Dade to keep counting. The court refused.

Sunday, November 26

At 5:00 p.m., Florida Secretary of State Harris officially certified that Bush had won Florida by 537 votes.

Monday, November 27

The Gore campaign, before Leon County Circuit Court judge N. Sanders Sauls, filed a request for immediate hand recounts in Palm Beach and Miami-Dade counties.

Tuesday, November 28

Judge Sauls turned down the Gore request but said he would hold a hearing.

Wednesday, November 29

The Gore team asked the Florida Supreme Court to order the hand recount to proceed while Judge Sauls's hearing was pending.

An Hour and a Half in Washington

Friday, December 1

For 90 minutes, the U.S. Supreme Court heard the Bush and Gore arguments. It focussed on a seldom-noticed statute, the Electoral Count Act of 1887, enacted by Congress following the disputed 1876 election contest between Rutherford B. Hayes and Samuel J. Tilden. Title 3, Section 5, of the U.S. Code states that if any state, before choosing its presidential electors, has passed laws on the handling of any contest "by judicial or other methods," determinations under those laws shall be conclusive in counting the electoral vote.

Bush attorney Theodore B. Olson argued that the Florida Supreme Court, in its November 21 decision permitting manual recounts to continue and setting November 26 for certification, had rewritten the law of Florida and violated the U.S. Code. The decision, he said, rewrote a Florida statute that set a December 14 deadline for election boards to report their totals.

Attorney Laurence H. Tribe, arguing the Gore side, said the Florida Supreme Court had not written new law but only interpreted differing Florida statutes, one of which sets a close deadline for certification while the other permits time-consuming hand recounts. And, he added, the 1887 law merely proposes incentives to states that follow it, but does not penalize them for failure to do so.

Both Chief Justice William Rehnquist and Justice Sandra Day O'Connor pointed out that Section 5 of the U.S. Code appeared to be a direction to Congress for resolving disputes over electoral votes, but not a rule to be enforced by the courts. "We're looking for a federal issue," said Justice Anthony Kennedy. Justice Ruth Bader Ginsburg challenged Bush attorney Olson: "I do not know of any case where we have impugned a state supreme court the way you are doing in this case," she said. "I mean, in case after case, we have said we owe the highest respect to what the state says is the state's law."

Before Judge Sauls: Chads and Patents

Saturday, December 2

Back in Florida, before Leon County Circuit Court judge N. Sanders Sauls, Gore attorneys urged the judge to order the hand counting of some 14,000 ballots that were considered "undervoted" or disqualified. Over nine grueling hours, they presented only two witnesses: an expert on voting machines, and a statistician. Judge Sauls plowed through lengthy and detailed descriptions of how chads do or don't become dimpled, how they may build up in the voting apparatus so they block a hole from being entirely punched from a ballot, how they can "hang" by one or more corners. Bush attorney Philip Beck crossexamined the statistician, Yale professor Nicolas Hengartner, who testified on the likely problems in punch-card voting. Beck's persistence brought an admission from the professor that he had not, in fact, examined a certain ballot that, in his affidavit, he said he had inspected.

Sunday, December 3

The slow-moving testimony in the Sauls courtroom sped up. For an hour, Bush witness John Ahmann, who some 35 years earlier helped design the punchcard system still used in several Florida counties and across the United States, spent more than an hour explaining why ballots that were only partly punched did not result from failures of the machines. "I seriously doubt," he said, "that a voter would be unable to push a chad through on a normal voting device."

In cross-examination, Gore attorney Stephen Zack read from a patent application filed by Ahmann for a new voting-machine design. It said that the old design, which was still used in Miami-Dade County, could make ballots unreadable by leaving chads hanging and that it "can cause serious errors to occur" by becoming so filled with chads that voters could not punch ballots all the way through.

Ahmann also revealed that he had tried but failed to sell Miami-Dade County on a new stylus designed to help the voter punch the ballot all the way through. The current stylus, he said, did not punch as dependably as the new design.

This witness called by the Bush side, said Gore lawyer David Boies afterward, was the Democrats' best witness. "He made every point we were trying to make," said Boies.

A Bush statistician, Dr. Laurentius Marais, rebutted the Gore statistician's statement that counties using optical voting machines recorded fewer non-votes than those using punch cards. This, he said, reflected the age-old fallacy of assuming a causal relationship where none existed, as in the classic example in which a statistician notes an increase in storks' nests in a town at the same time as an increase in human births and assumes cause and effect.

Marais also cited studies showing that a confusing ballot design, such as Palm Beach County's controversial "butterfly" ballot, could turn voters away from the polls without voting.

It was almost 11:00 Sunday night when Judge Sauls, promising to issue a ruling the next morning, recessed the court.

Decision "Vacated"

Monday, December 4

In Washington, D.C., the U.S. Supreme Court issued a unanimous sixpage ruling. It told the Florida Supreme Court to clarify its November 21st ruling that allowed recounts to continue beyond the deadline set by statute. Technically, the U.S. justices "vacated" the Florida court's decision.

In Tallahassee several hours later, Judge Sauls read his ruling aloud. It dismissed every legal argument the Gore lawyers had offered. Mr. Gore had not proved, said the judge, a "reasonable probability" that the election would have turned out differently had there been no problems counting ballots. Furthermore, he said, to contest the election properly, every ballot in Floridanot just in the three counties under disputewould have to be counted.

Thursday, December 7

While the judge was still speaking, Gore lawyers had filed an appeal to the Florida Supreme Court. As attorney Boies opened for plaintiff Gore, Chief Justice Charles T. Wells asked, "Why is not judicial review given to the circuit court and not this court?" The justice explained that state law gave the hearing of contests of elections to the circuit court and did not say they could be appealed. Boies contended that the case could be appealed like any other because the U.S. Constitution authorized the legislature to enact basic laws but not to act as a judicial body.

Justice Leander J. Shaw, Jr., questioned how this court could overrule Judge Sauls's findings of fact. Boies responded that Judge Sauls had refused to look at important evidence: the 14,000 punch-card ballots, rejected by tabulating machines that might change the election outcome if manually counted. Three justicesMajor B. Harding, R. Fred Lewis, and Peggy A. Quinceasked why the Democrats wanted to count manually in only Palm Beach and Miami-Dade counties rather than everywhere. The losing candidate, said Boies, had the right to choose where to contest the vote, and, indeed, the Bush side had rejected the chance for a statewide manual recount.

As Bush lawyer Barry Richard addressed the court, Justice Harry Lee Anstead asked, "Isn't it highly unusual for a trial court to admit into evidence certain documents that one party claims will be controlling and yet never examine those documents before making their decision?" Justice Barbara J. Pariente added that the state election law requires the circuit court "to do whatever is necessary to ensure that each allegation in the complaint is investigated, examined, or checked." What does that mean, she asked, if it doesn't mean counting disputed ballots?

Richard responded that the plaintiffs had not established "an abuse of discretion by any of the challenged canvassing boards" even though counting is at the discretion of election boards.

Justice Quince questioned Judge Sauls's test that Gore had to show a "reasonable probability" of a recount making a change in the election outcome. "Where in the statute is that standard," demanded the justice, "that you have to show that a mistake was made through no fault of the voter?" She added that she was "really having a problem" with the Sauls probability standard.

Manual Recount Ordered

Friday, December 8

At day's end, a four-member majority of the court (Justices Anstead, Lewis, Pariente, and Quince) decided that all so-called "undervotes"i.e., ballots on which no votes for president had been recorded, estimated at 45,000 statewidemust be manually recounted. The court ordered that Florida's 25 electoral votes be awarded to whichever candidate won the recount. It also said that Judge Sauls had set too high a standard in deciding that Gore had not proved that disputed ballots should be counted. And it ordered hand counting of 9,000 Miami-Dade ballots that machines failed to readas well as similar ballots statewide.

As election boards rushed to organize recounts, attorneys for Bush raced to the U.S. Supreme Court to appeal.

Recount Stopped

Saturday, December 9

Just before 3:00 p.m., the U.S. Supreme Court, voting 5-4, ordered Florida to stop counting votes. It set Monday morning to hear the Bush appeal.

Monday, December 11

Bush attorney Olson was only 54 seconds into his opening statement before the U.S. Supreme Court when Justice Anthony M. Kennedy interrupted, asking, "What's the federal question here?" He said the proposition that a state legislature should not be guided by the courts "seems to me a holding that has grave implications for our republican theory of government." Olson responded that the Constitution gave state legislatures the authority to appoint electors and that legislatures were empowered to use the executive as well as judicial branch to implement election procedures. In Florida, he explained, the legislature designated the executive branch, in the secretary of state, to enforce the election law. It also assigned the Circuit Court as trial court to judge any election contests. "There is no reference," said Olson, "to an appellate jurisdiction."

Justice Breyer tried more than once to get Olson to state what he considered a "fair standard" for counting ballots on which the machine had found no vote for president. Finally, Olson said, "That is the job for a legislature."

The justice insisted on getting Olson's opinion.

"A reasonable standard," said Olson, "would have to be, at minimum, a penetration of the chad in the ballot because indentations are no standards at all."

Justice Stevens followed up: "And can we possibly infer from the failure of the secretary of state to promulgate a statewide standard that she might have inferred that the intent of the voter is an adequate standard?"

Olson said that was not a fair inference. Justice Breyer asked what would be a basically fair standard. "I would hold that you have to punch the chad through on a ballot," said Olson. "The only problem we have here is created by people who did not follow instructions."

Representing Gore, attorney Boies's task was to convince the court that the Florida Supreme Court had not exceeded its authority by ordering the manual recount. He argued that it was entitled to the deference usually shown to state courts by the nation's highest court. "You are responding," said Justice O'Connor, "as though there were no special burden to show some deference to legislative choices." Citing the U.S. Constitution's Article II, she noted that state legislatures have the authority to determine the manner of choosing the state's presidential electors. "In the context of selection of presidential electors," she added, "isn't there a big red flag up there, 'Watch out'?"

Justice O'Connor next commented on the Florida court's failure to respond to the justices' unanimous order, a week earlier, vacating the Florida court's previous decision to extend the deadline for certifying presidential vote totals. The Florida Supreme Court, she said, "just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they could go ahead and adhere to them. And I found that troublesome."

Supreme Court Ends It

Tuesday, December 12

At 10:00 p.m., the U.S. Supreme Court ruled, 5-4, that the counting of Florida's disputed presidential votes must end. The majority justices were Rehnquist, O'Connor, Scalia, Kennedy, and Thomas. Their ruling said the immediacy of the December 12 deadline for immunizing Florida's electors from a challenge in Congress made it impossible to find a way to count the votes that would meet "minimal constitutional standards" and meet the deadline that "is upon us.

Dissenters Breyer and Souter agreed with the majority that varying standards for counting the punch-card ballots in the Florida counties offered problems of due process and of equal protection. The answer, they said, was not to end the recount but to extend it to December 18, the date of the electoral college meeting. Such a recount would be a "tall order," said Souter, but "there is no justification for denying the state the opportunity to try to count all the disputed ballots now."

Justice Ginsburg was more outspoken. "The court's conclusion that a constitutionally adequate recount is impractical," she wrote, "is a prophecy the court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States."

Justice Stevens was equally perturbed. "Although we may never know with complete certainty the identity of the winner of this year's presidential election," he wrote, "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."

Bernard Ryan, Jr.

Suggestions for Further Reading

Achenbach, Joel. It Looks Like a President Only Smaller: Trailing Campaign 2000. New York: Simon & Schuster, 2001.

Apple, R.W., Jr. etal (political reporters of the New York Times). 36 Days: The Complete Chronicle of the 2000 Presidential Election Crisis. New York: Times Books, 2001.

Bleich, Jeff, and Kelly Klaus. "The Road from Tallahassee." Oregon State Bar Bulletin (February/March 2001).

Dionne, E.J., ed. Bush v. Gore: The Court Cases and the Commentary. Washington: Brookings Institution, 2001.

Milbank, Dana. Smashmouth: Two Years in the Gutter with Al Gore and George W. Bush. New York: Basic Books, 2001.

Tapper, Jake. Down and Dirty: The Plot to Steal the Presidency. Boston: Little, Brown, 2001.

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Presidential Election Trials: 2000

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Presidential Election Trials: 2000