THE ELECTION OF 2000: Where Do We Go From Here?”
Summary by K. Jacob Ruppert, J.D.
THE PANEL DISCUSSION
At the Association’s panel discussion on March 20, 2002, all panelists offered responses to the program’s title question: THE
ELECTION OF 2000: Where Do We Go From Here?” It was quite clear to them, after isolating the issue as to what can
prevent or help prevent another recurrence of a similar presidential election result, that voting procedures and the general
presidential electoral system have room for improvement. Aside from the collateral political arguments orbiting the Bush v.
Gore decisions, many offered immediate and practical suggestions that if they were in place before the November 2000
election, the lines dividing Florida and the nation would have been considerably less blurred.
The forum’s direction toward electoral reform was well placed by John D. Feerick who opined:
If we are looking ahead in a period where we’re going to have close election after close election, we are going to
continue to put this country on the brink of a constitutional crisis if we don’t address the while system of how we
elect a president and vice-president of the United States.
Further foundation was set by Association president Evan Davis who, in his opening remarks, reported that based upon
statistical data, the chance of an election where the result turned on less than a thousand votes in a state that was critical to
the outcome of the Electoral College count is between 1 in 30 and 1 in 50. He then charged the distinguished panel with what
should be done in dealing with close presidential elections. Burt Neuborne, the evening’s moderator, well-oriented the
panelists and the audience for the forthcoming constitutionally fired discourse by beginning the endeavor with enunciating
three attributes of American life: (1) a commitment to democratic values and to effective universal suffrage, (2) respect for
the rule of law instead of force or wealth and (3) a principled and independent judiciary. All three, he said (and not without
debate), “took a beating” in November of 2000.
The forum discussion was generally focused upon three principal issues regarding the 2000 election: suggested technological
reform to the election process, the Electoral College and the legitimacy of Gore v. Bush.
I. Technological Reform to the Election Process
Moderator Burt Neuborne stressed that the problems with the Florida election did not require partisan solutions but merely
structural ones. Professor Marci Hamilton, the seemingly lone voice on the panel for the defense of the majority opinion in
Bush v. Gore, presented a straight cause-and-effect delivery of what led to the Bush v. Gore decision followed by her
recommendations. “Standardize, standardize, standardize!” was her suggestion when underscoring the key problem with the
Floridian presidential results:
There’s no question that there is widespread lack of standardization across the country in voting for the presidency.
The standard that was set, actually in Boerne , is that the remedy must be congruent and proportional to the evil that is
found. A standardized ballot across the country is certainly congruent and proportional to the evil [of a] lack of
standardized ballot counting and voting in presidential elections.
Hamilton links this lack of standardization to the growing national trend of the fundamental right of voting being taken for
granted. She explained that Palm Beach was fully aware that thousands of votes were not being counted in previous elections
and the county had debated whether to buy new machines or initiate a better system but decided it was too expensive. It was
this failure to standardize which made Florida ripe for an unreliable vote count given the polls’ prediction of a close
presidential election. The differing voting procedures and the differing standards from county to county and even table to
table during the recount, Hamilton says, are what galvanized the majority justices to believe that Florida could not possibly
tabulate the votes in accordance with minimal constitutional requirements by Florida’s statutory deadline thereby reversing the
Florida Supreme Court’s manual recount order. Concluding that Florida was an example of a faulty voting system that can
be fixed “up front” with more reliable standardized voting machines, she stressed that they need to be assessed for their
reliability and replaced if no longer trustworthy. She cited Section 5 of the Fourteenth Amendment as the authority
Congress has to make such changes under City of Boerne v. Flores and now, Bush v. Gore.
Ken Gross concurred with the standardization suggestion adding that besides Bush v. Gore being about the regional count, it
was about the quality of equipment and the equality to which all voters are entitled. He also suggested uniform poll closing
but qualifying it by saying that it will not stop the media’s exit polls but at least East Coast exit poll information will not
influence West Coast votes waiting to be cast.
Panelist Ted Shaw brought to the discussion the perspective that a nexus exists between necessary reforms and the minority
communities. Part of the national debate involved the disenfranchisement of some minority communities of Florida and many
stories were recounted in the post-election news coverage of registered African American voters showing up at polls only to
be told that they were not registered or that they had felony convictions that preclude them form voting. Mr. Shaw touched
upon the recommendation of provisional voting saying:
[H]ere you had people never convicted of a crime [being] told that they couldn’t vote because they had been purged
on the basis of felony convictions. You have to think about what it means when a state contracts with a company to
do this kind of purging and you have these kinds of results in an election that’s this close….
He continued that the technology was available for system-wide on-site confirmation of all registered voters and questioned
why such technology was missing from the predominately minority communities of Florida. He further asked why the
purging of the voter rolls fell more in the same minority communities and why the inaccurate voting machines were found
more in the minority communities. “I believe what I see before me,” he said, “and what I see is not serendipitous in many
II. One Person, One Vote, One Electoral College
The predominant battle cry of the Gore legal team and the Democratic Party was the basic fundamental constitutional
principle as “one-person, one vote.” However John Feerick differentiates between the operation of the principle within a
particular state or within the entire country. If viewed as a state system, that principle operates well when it looks at the state
as the constituency. If viewed as the entire country as the constituency in presidential elections, then there is a gross
violation of the principle of “one person, one vote” but more of “one person, one state.” Feerick continued:
A voter’s influence depends on which state he or she lives. A voter in New York influences 30 plus electors and [in]
California, over 50 electors. So, [given] that we have an electoral advantage, if you approach it from the standpoint of
a national office, there is a very serious violation of the principle of “one person, one vote.
As a former president of the Association of the Bar of the City of New York, Feerick is well acquainted with the position that
the Association has maintained to abolish the Electoral College system. “[W]e are not in a time, in my opinion, where we
have any hope of adding another constitutional amendment, as I see it, on the subject of Electoral College reform…” Ted
Shaw remarked he doubted that if the Electoral College was abolished, that the liberal vote would be any better off given the
United States, in his opinion “a very conservative nation.” Ken Gross added that in 1997 the American Bar Association
changed its policy to no longer support abolition of the Electoral College, a policy it endorsed since 1967.
Not to remain silent, Marci Hamilton jumped in as “the only person who’s going to defend that electoral college” saying that it
is extraordinarily valuable because it goes back to the framers’ concerns about the possibility of the national government
wholly consuming the various factions and segments of the society. Keeping the identities of the several states through the
Electoral College prevents that from happening. Nonetheless, Feerick responded that he still finds it hard to argue the present
system based upon what the framers had designed:
[I]f you take a look at the country from an electoral map standpoint, what you see is Gore on the Pacific and the Returning to Marci Hamilton’s argument that Article Five of the Fourteenth Amendment is the authority for Congress to
Atlantic with twenty state and then you see thirty [Bush] states [in the middle]. But if you strip away the lens of the
electoral college, you see a lot of support for both candidates in almost all the states and it seems to me that we should
recognize this by counting all those votes in the final tally and not just wiping out minority votes in a state because of
the winner take all system.
regulate presidential elections, Burt Neuborne asked if perhaps it would also permit Congress to pass a statute changing to
proportional allocation of electoral votes. She answered by explaining that the remedy (legislation) must fit the proposed evil
(votes cast identically are not being counted identically) must fit proportionally. “[W]e must have and identical voting
procedure, that’s a perfect fit. But I think to go to proportional [allocation of electoral votes], it’s not.”
Burt Neuborne closed the segment by asking the audience to imagine the disaster if the Florida recount was put on a national
scale without the Electoral College system in place. “Unless you’re willing to write off a chunk of the nation that doesn’t live
near very large population centers,” he said, “the Electoral College is somehow needed to keep them in the game.” Feerick
disagreed (or played devil’s advocate) saying that a direct popular vote for the presidency gives every incentive to all political
parties to go everywhere in the country since each vote by each American counts in the final tally. Political party activity
would be energized and “…what’s so bad about that?”
III. The Legitimacy of Bush v. Gore.
Of the entire panel presentation, Bush v. Gore stood at the fulcrum with panelists Burt Neuborne and Marci Hamilton sitting at
either side with Feerick and Gross at the sidelines. Neuborne wasted no time at the top of the evening to state that the
election was “a serious wound to democracy” and that the Bush v. Gore opinion “is appalling wrong”:
[I]f the best one can do to defend this opinion is to defend it as an equal protection opinion saying that what this really
was, was a great step forward for equality, I find that utterly incomprehensible. There was a serious equal protection
problem in that case and you know what it was? It was the differential use of voting machines throughout [the state
of Florida] that made it five times more likely for some people’s vote not to be counted than other people’s votes – and
the tended to live in poor areas…[but to] strike down the remedy leaving the underlying violation unremedied so that
what the raw vote in Florida was, was the result of appalling inequality in the allocation of voting resources and then
call that a principled decision in favor of equality – it’s pretty hard for me accept.
Neuborne set a stage for debate on whether the United States Supreme Court outed itself as no longer being a court of
principle but one of politics:
[W]e took a terrible hit on the rule of law itself. In some sense it’s a great testament to our commitment to the rule of
law that the nation calmly accepted the result of the Supreme Court electing a president by one vote even when that
appeared to be inconsistent with the will of the people…But there’s only a limited time – a limited number of times that
the rule of law can take a blow like that without the people beginning to ask questions about whether or not we really
do have a rule of law…
Furthering the political issue, Ted Shaw said that he personally felt that there was only one issue in the election and that was
the Supreme Court. He rested the issue of Supreme Court appointments at the top of the election dispute citing Justice
Scalia's statement that the credibility of the Bush administration would be compromised if the recount was to go forward.
“[I]t’s no question in my mind that it is a politicized Court.”
Marci Hamilton, drawing from her experience clerking for Justice Sandra Day O’Connor, confidently rebutted the politicized
court assessment remarking that it amazes her “when the description of the Supreme Court when you don’t agree with the
political light that the Court happens to be under, it turns into a political Court and when you happen to agree with it, it’s a
principled Court.” She finds it not persuasive to identify members of the Court with political parties, explaining:
Justice Souter is not a democrat; he was appointed by a republican. I have not doubt that he votes republican but
happens to vote with the more liberal block on the Court, but that does not make him a democrat. At the same
moment Justice Stevens is not necessarily a democrat; he was appointed by a republican and espouses many
republican principles. He said himself in a speech this spring that he would not step down during a democratic
presidency. So, to argue that the 5/4 [decision to stop the recount] is somehow republican/democrat doesn’t make
any sense whatsoever. By my count there are seven on the Court that are republican and there are two that are
democrat and they don’t fit the 7/2 [decision on equal protection violations], they don’t fit the 5/4. So that, I think, is
She further stressed her point of an apolitical Court by stating that members of the Court know how the press is going to
handle certain opinions. “They are fully aware that the decisions they make are immediately politicized the minute that they
are released,” she explained. “That’s how the abortion decisions are handled in the press, that’s how the civil rights decisions
are handled by the press.”
Neuborne, and Shaw to a similar degree, voiced more of an understanding paralleling Justice Stevens’ dissent in that the
majority opinion. Justice Stevens stated that the majority opinion
…effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent – and
are therefore legal votes under state law…[N]othing prevents the majority…from ordering relief…without depriving
Florida voters of their right to have their votes counted. As the majority notes, “[a] desire for speed is not a general
excuse for ignoring equal protection guaranteed.
Ken Gross and Burt Neuborne commented after an audience member’s question that it would not have taken very long to
finish counting the relatively small number of over and under votes, but if establishing a legal standard to count the votes was
the issue, the Supreme Court of Florida could have done so within 24 hours. Ms. Hamilton responded stressing that the
standard would have to have been established with respect to every kind of voting system used with fact finding on what
went wrong with each type of voting system used. Hamilton, demonstrating an appreciation of the per curiam opinion, feels
that the majority (Rehnquist, Kennedy, O’Connor, Scalia and Thomas) was “appalled” at how irregular the vote counting was
throughout the state and it was that what drove the decision. In the words of the Court, to design and apply a counting
standard to every vote from every differing voting system by December 12 the deadline that Florida set by statute,
…it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due Responding to Neuborne’s characterization of the decision as “incomprehensible,” in an electric exchange between herself
process without substantial additional work. It would require not only the adoption (after opportunity for argument)
of adequate statewide standards for determining with is a legal vote, and practicable procedures to implement them,
but also orderly judicial review of any disputed matters that might arise…[Florida statute] requires that any
controversy…be completed by December 12. That date is upon us, and there is no recount procedure in place under
the State Supreme Court’s order that comports with the minimal constitutional standards. Because it is evident that
any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we
and Neuborne, she reminded all that the hot, political and inflammatory issues casually mentioned in the same breath as Bush
vs. Gore by press and pundits alike were not the issues brought before to Court:
HAMILTON: Well, Burt, I’m not going to let you get away with having the final word on the decision [that it] was
“incomprehensible.” Just quickly, the Court didn’t have the issues that you worry about in front of it in Bush v. Gore. It
wasn’t part of the fact finding and the question presented said nothing about race based discrimination…so, it is unfair to
imply that the Court let a race based distinction go by.”
NEUBORNE: No, no, no. I didn’t say race based…even if it wasn’t race based, if it was five times…
HAMILTON: Well, you did! You said “disproportionate effect in minority neighborhoods.” That wasn’t on the record
[before the Court].
NEUBORNE: But take race off the table – but they did have before them the fact that the voting machines were five
times more likely in some places not to count the vote than others.
HAMILTON: But they had nothing that showed any, even close to, race based intent [in] the system…Now, I’m glad
these things are being challenged now. I think they ought to be and we ought to look into it, but the Court had before it was
not that case…
After reiterating her argument of poor standardization voting procedures and calling for a uniform presidential ballot system,
Hamilton immediately moved into the possible precedential value of Bush v. Gore predicting that the Court’s recognition of
the equal protection right that all votes must be counted equally and identically, it will open the door for more 1983 suits in
every jurisdiction and at every level as well as opening doors for more Voting Rights Act challenges. Ken Gross added that
there was “some import” to the opinion and the fact that seven justices found it as an equal protection cases was not trivial:
I think this spells good news going forward for the minority community. We have seen anecdotal evidence at the very least
in inner cities, in Jacksonville and Duval County where poor voting equipment was used…I mean, this is not uniform, there
will be affluent counties with punch cards as well, but [this evidence] set[s] up causes of action under voting rights acts…
and now, equal protection.
Neuborne agrees only to the extent that the only equal protection issue in the case was the differential use of voting machines
throughout Florida, primarily in poorer areas, that made it five times more likely a person’s vote would not be counted. Ted
Shaw expressed heavy doubts as to any substantive precedential value to the case regarding equal protection issues. He
predicts that the Court will be very narrow in its interpretation of the equal protection issue in Bush v. Gore.
Burt Neuborne concluded the evening by re-capping the suggestions discussed and introducing more ideas to answer the
evening’s charge “where do we go from here?” In an unmistakable style and clarity, his words pulled the audience’s
attention further forward giving the directive that all go forth “with a commitment to help heal the democratic process.”
Never short of offering food for thought, Neuborne sent the audience home with ideas to contemplate. Beginning with a
seemingly silly suggestion but one woven with a merit and reason discovered at first giggle, he tells us that
Athens picked their judges randomly. What do you think? I mean, you know, should we have a big lottery? Then we’
d have an independent judiciary! And maybe not any different than or worse than what we have now.
Rising to a more serious altitude, he asks the audience to also consider
[w]hy isn’t Election Day a holiday? We are the only democracy that calls itself a serious one that votes on a workday
and requires a working person to take time off to vote…We could move Election Day five days to Veterans Day. In
November, have it be a patriotic festival. Have it celebrate, really, the fact that people died so we could cast these
votes…[T]he unions in Michigan turned Election Day into a union holiday this year and…[t]he fear was that they
would all go on four-day weekends... But they didn’t! They stayed home and they voted…in enormous
numbers…we’ve got to do something about the improving turnout and moving to a holiday would be a painless way to
do it…[S]ix states have same-day voter registration [and] five of those six states have the highest turnouts in the
country! […w]e’ve got to get rid of felon disenfranchisement…[change to] multi-member congressional districting
with bullet voting…and…[w]e’ve got to do something about voting machinery. Make it equal! Make it effective!
Marci’s [Hamilton] absolutely right. It’s absurd that we don’t upgrade the technology and make it equal. Campaign
finance reform – we didn’t talk about that tonight. I mean, we don’t run a democracy, we run an auction! And
unless we change it – you know, people buy pardons, people buy seats on submarines, people buy voting – they buy
tax breaks, they buy hotel sleep-overs in the White House. I mean, the whole government’s up for sale! And unless
we do something about it, we’re not going to have a viable democracy and we can’t ignore that. And finally, access
to the media for candidates on something other than market mechanisms…Now those are seven ideas which if we put
into place, would go a long way toward helping us heed Evan’s [Davis] mandate.