Skip to Main Content
Have library access? Log in through your library
The Longest Night

The Longest Night: Polemics and Perspectives on Election 2000

Arthur J. Jacobson
Michel Rosenfeld
Copyright Date: 2002
Edition: 1
Pages: 428
https://www.jstor.org/stable/10.1525/j.ctt1pnnfh
  • Cite this Item
  • Book Info
    The Longest Night
    Book Description:

    The American presidential election of 2000 was perhaps the most remarkable, and in many ways the most unsettling, that the country has yet experienced. The millennial election raised fundamental questions not only about American democracy, but also about the nation's constitution and about the legitimate role of American courts, state and federal, and in particular about the United States Supreme Court.The Longest Nightpresents a lively and informed reaction to the legal aftermath of the election by the most prominent experts on the subject. With a balance of opposing views-including those of some of the most distinguished foreign commentators writing on the subject today-the contributors present an unusual breadth of perspectives in addressing the judicial, institutional, and political questions involved in the disputed election. Their commentaries bring the confusion and frenzy of the event into clear focus and lay the groundwork for an essential public debate that is sure to continue well into the future.The Longest Nightcontains a thorough chronology of the events in Florida, a detailed account of the institutional structure of American presidential elections, a series of analyses both criticizing and defending the decisions inBush v. Gore,American perspectives on the Florida struggle and America's electoral system, and a debate on maintaining or reforming the electoral college. The authors include participants in the legal and political battles surrounding the Florida election, foreigners charged with monitoring and supervising elections, and scholars from many disciplines specializing in constitutionalism, democracy, and American election law.Contributors

    eISBN: 978-0-520-92933-3
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. ACKNOWLEDGMENTS
    (pp. xi-xii)
  4. INTRODUCTION
    (pp. 1-21)
    Arthur J. Jacobson and Michel Rosenfeld

    Quite unexpectedly, the American presidential election of 2000 has become the most remarkable and in many ways the most unsettling one that the country has yet experienced. The millennial election stretched for well over one month, and its repercussions are sure to be felt for a long time to come. It has raised fundamental questions not only about American democracy but also about the nation’s more than two-hundred-year-old Constitution and about the legitimate role of American courts, state and federal and in particular the highest court in the land, the United States Supreme Court, which in effect put an end...

  5. CAST AND CHRONOLOGY
    (pp. 22-44)

    Albert Gore Jr., vice president of the United States and Democratic candidate for the U.S. presidency.

    Joseph Lieberman, Democratic senator from Connecticut and Gore’s running mate.

    George W. Bush, governor of Texas and Republican candidate for the U.S. presidency.

    Dick Cheney, secretary of defense under George H. W. Bush, George W. Bush’s father, and George W. Bush’s running mate.

    William M. Daley, Gore’s campaign chairman.

    Warren Christopher, secretary of state under Bill Clinton and head of Gore’s legal team in Florida.

    David Boies, a prominent lawyer and a member of Gore’s legal team in Florida.

    James A. Baker III, secretary...

  6. PART I. IN THE HEAT OF THE BATTLE

    • 1 EQUAL PROTECTION FOR VOTES
      (pp. 47-49)
      Henry E. Brady

      “Counting all the votes” and “fairness” are catchwords of the now more than five-week-long postelection campaign. These principles have collided repeatedly as the Gore campaign seeks manual recounts and the Bush campaign protests the unfairness of these recounts. “The lack of uniform standards for counting ‘votes,’ ” the Bush campaign argued in its brief to the United States Supreme Court, “means that voters who cast identical ballots in different counties will likely have their ballots counted differently.” The result, according to the Bush campaign’s Supreme Court brief, is a violation of the Equal Protection Clause of the Fourteenth Amendment, which...

    • 2 LAW AND DATA: THE BUTTERFLY BALLOT EPISODE
      (pp. 50-66)
      Henry E. Brady, Michael C. Herron, Walter R. Mebane Jr., Jasjeet Singh Sekhon, Kenneth W. Shotts and Jonathan Wand

      On the television seriesLaw and Orderthe police catch criminals and hand them over to lawyers to get convictions. The program’s dramatic tension comes in part from the police operating under the scrutiny of a rigid and unforgiving legal system. The suspense increases as the lawyers try to do their job even though there is often a gap between justice and what the law requires.

      In “Law and Data,” data analysts track down the facts and prove their theories, but they often have trouble explaining them simply and clearly. Lawyers find it hard to obtain, or even define, justice....

  7. PART II. THE MACHINERY OF DEMOCRACY IN AMERICA

    • 3 DISPUTING ELECTIONS
      (pp. 69-86)
      Richard H. Pildes

      The most incendiary issue any democratic system can confront might well be the selection of its chief executive when election results are disputed, obscure, and sharply divided. If we consider this issue from the perspective of democratic institutional design, we should anticipate that such situations are likely to arise eventually in any long-running democracy. In America, we have had disputed elections to the Senate and House regularly throughout our history and, on occasion, though not in the peculiar form of the 2000 election, for the presidency. From anex anteperspective, then, we might ask what institutional structures and legal...

  8. PART III. THE DECISIONS

    • 4 A BADLY FLAWED ELECTION
      (pp. 89-99)
      Ronald Dworkin

      The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by the fiat of the five conservative Supreme Court justices, Chief Justice Rehnquist and Justices Kennedy, O’Connor, Scalia, and Thomas, over the fierce objection of the four more liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The conservatives stopped the democratic process in its tracks, with thousands of votes yet uncounted, first by ordering an unjustified stay of the statewide recount of the Florida vote that was already in progress and then by declaring, in one of the least...

    • 5 EXCHANGE BETWEEN RONALD DWORKIN AND CHARLES FRIED
      (pp. 100-110)
      CHARLES FRIED and RONALD DWORKIN

      I cannot claim to be a disinterested observer of the events Ronald Dworkin comments on in his essay “A Badly Flawed Election.” I was counsel of record to the Florida legislature in the two Supreme Court cases spawned by the tabulation of the vote in Florida. In our second brief my Harvard colleague, Einer Elhauge, and I presented arguments that closely paralleled the Court’s opinion as well as the concurring opinion of the Chief Justice. In spite of that involvement—maybe because of it—I readily concede that this was a difficult case with two sides. Quite unjustified, however, is...

    • 6 BUSH V. GORE: THREE STRIKES FOR THE CONSTITUTION, THE COURT, AND DEMOCRACY, BUT THERE IS ALWAYS NEXT SEASON
      (pp. 111-143)
      Michel Rosenfeld

      In the often quoted words of Justice Stevens’s strong dissent inBush v. Gore,¹ “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.”²

      Actually things were much worse on that fateful day, December 12, 2000, when, in a 5–4 decision, a deeply divided Supreme Court put an end to the election and anointed George W. Bush president. Indeed, not only was the Supreme Court’s majority...

    • 7 THE UNBEARABLE RIGHTNESS OF BUSH V. GORE
      (pp. 144-188)
      Nelson Lund

      Bush v. Gorewas a straightforward and legally correct decision. If one were familiar only with the commentary that ensued in the decision’s wake, this claim might sound almost lunatic. This essay explains why the Supreme Court acted properly, indeed admirably, and why the ubiquitous criticisms that have been leveled at the justices from both the Left and the Right are at best misguided.

      For almost forty years, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much subtler and more indirect forms of vote dilution have also been outlawed....

    • 8 THE GHOSTWRITERS
      (pp. 189-211)
      Arthur J. Jacobson

      One feature of the majority’s opinion inBush v. Gore¹ struck a sophisticated observer of the Court immediately. “[T]he opinion,” wrote Linda Greenhouse in theNew York Times, “was labeled ‘per curiam,’ meaning ‘by the court,’ a label used by courts almost exclusively for unanimous opinions so uncontroversial as to not be worth the trouble of a formal opinion-writing process.”² The per curiam inBush v. Gorewas far from unanimous, hardly uncontroversial, and certainly the subject of a “formal opinion-writing process.” If Greenhouse is right and the majority inBush v. Gorenot wrong, theirs must fall within the...

    • 9 NOTES FOR THE UNPUBLISHED SUPPLEMENTAL SEPARATE OPINIONS IN BUSH V. GORE
      (pp. 212-224)
      Burt Neuborne

      O’Connor and Kennedy, J.J.:

      We write separately to explain why we believe that the Florida legislature adopted the federal December 12 “safe harbor” provision for certifying presidential electors as a firm, nonextendable deadline for completing the count of ballots for presidential electors and why it was permissible, indeed necessary, for us to have decided that very important question of Florida law. We take the extraordinary step of issuing this supplemental opinion in response to suggestions that our decision to join the Court’s stay of the Florida hand recount and our decision to join the Court’s per curiam opinion were unprincipled...

  9. PART IV. AMERICAN PERSPECTIVES

    • 10 ANATOMY OF A CONSTITUTIONAL COUP
      (pp. 227-235)
      Bruce Ackerman

      It was a curious time for a crisis. An extraordinary boom had provided the rich with fabulous wealth and America with full employment. The disappearance of the Red menace gave the nation an effortless cultural primacy. The air force had even established that wars could be won without casualties. What was there to worry about? Certainly Al Gore and George W. Bush weren’t calling on Americans to ask any large questions. Both pushed their ideologues of the Left and the Right off the airwaves (at least during prime time). After one of the most boring campaigns in history, Americans were...

    • 11 THE MANY FACES OF BUSH V. GORE
      (pp. 236-249)
      George P. Fletcher

      It was a cold night, December 12, 2000, as the journalists gathered in front of the Supreme Court building in Washington, D.C. They were awaiting word on the third intervention taken by the Supreme Court in the election controversy of the century—the unresolved presidential race between George W. Bush and Al Gore. The Supreme Court had never decided a presidential election. The ubiquitous television pundits were surprised that the Court took the case at all. No one had figured out how the Court could establish its jurisdiction over a question that appeared to be a matter exclusively of Florida...

    • 12 SPRINGTIME FOR ROUSSEAU
      (pp. 250-255)
      Richard Brookhiser

      Late in November 2000, three weeks into the postelection election, Representative Jerrold Nadler, a liberal Democrat representing the West Side of Manhattan—one of the bluest of what political America would soon be calling the blue counties—sniffed the atmosphere and made a noteworthy charge. “I don’t think I’ve ever called anything else like this before, but I will now,” Nadler said. “The whiff of fascism is in the air.”

      Why would he say such a thing? The trappings of traditional fascism, in or out of power—riots, book burnings, death squads, monster rallies—were nowhere to be seen. If...

    • 13 MACHIAVELLI IN ROBES? THE COURT IN THE ELECTION
      (pp. 256-276)
      Frank I. Michelman

      “The republic’s debates cannot be half secret and half free.” Thus not Lincoln but Linde—Oregon Supreme Court Justice and noted legal scholar Hans Linde, lecturing in 1988 under the title, “A Republic … If You Can Keep It.”¹ Events such as Iran-Contra, in which dissimulation or secrecy itself becomes a component of government policy, were making Linde wonder whether we had kept our Republic, or could.

      “To whom,” Linde demanded to know, “is a government accountable for acts that are meant to be disowned?”² He asked his audience to consider which of our constitutional institutions finally must carry the...

  10. PART V. FOREIGN PERSPECTIVES

    • 14 A FLAWED YET RESILIENT SYSTEM: A VIEW FROM JERUSALEM
      (pp. 279-294)
      Shlomo Avineri

      For an outside observer, the crisis surrounding the November 2000 U.S. presidential election presented a mixed and contradictory picture. On the one hand, it proved beyond doubt the resilience of the American political and judicial system under difficult circumstances, which easily could have led to an intractable constitutional crisis—if not to something even worse. On the other hand, it brought to light, perhaps more than any crisis since the outbreak of the Civil War, some of the internal tensions, contradictions, and political costs involved in maintaining as a functional system a constitutional order built on eighteenth-century republican—and not...

    • 15 CONSTITUTIONAL COUNCIL REVIEW OF PRESIDENTIAL ELECTIONS IN FRANCE AND A FRENCH JUDICIAL PERSPECTIVE ON BUSH V. GORE
      (pp. 295-317)
      Noëlle Lenoir

      At a time when the market economy is on the way to dominating the world, some people are announcing that ideologies are dead and that politics is being ousted by economics. Is this prophecy becoming a reality? There are good grounds for doubting it, considering the excitement that political elections continue to generate in the life of a country. Admittedly there is a general tendency for the abstention rate to rise from one election to the next, although this tendency is appreciably lower in Europe than in the United States. And the younger generation’s lack of interest in public life...

    • 16 SEVEN REASONS WHY BUSH V. GORE WOULD HAVE BEEN UNLIKELY IN GERMANY
      (pp. 318-321)
      Dieter Grimm

      A direct parallel between the events of November and December 2000 in the United States and the situation in Germany cannot be drawn. The systems are too different. Whereas the United States is a presidential democracy, Germany can be characterized as a parliamentary democracy. The federal president, whose functions are more representative than political, is not elected by the people but by a special organ, theBundesversammlung, composed of all members of theBundestag(federal Parliament) and the same number of electors named by the parliaments of the various states (Länder). The chancellor is elected by theBundestag. The people...

    • 17 BUSH V. GORE: A VIEW FROM ITALY
      (pp. 322-331)
      Pasquale Pasquino

      Electoral systems are algorithms that permit the transformation of a number of votes (N) into a smaller number of seats (n). Since the beginning of representative government, this essential mechanism of democratic states, like the right of suffrage, has been discussed extensively.¹

      Very little attention has been given, however, to each electoral system’s point of departure, perhaps because the question of how to obtainNseems settled and unproblematic. This is the problem that emerged with unsuspected virulence during the very long month from November 7, 2000, election day, to December 12, 2000, when the U.S. Supreme Court decided that...

    • 18 DEMOCRACY IN AMERICA: A EUROPEAN PERSPECTIVE ON THE MILLENNIAL ELECTION
      (pp. 332-344)
      Mattias Kumm

      There are still many for whom the basic constitutional structure of the United States is regarded as an attractive model for what the European Union ought to become. The attraction of the United States in this respect is obvious. The political structure established by the U.S. Constitution is perceived as having provided a remarkably stable institutional framework over a span of more than two centuries. During this time, the United States was able to develop from little more than a coalition of rebellious colonies into a global power whose cultural appeal, scientific prowess, economic prosperity, political clout, and military might...

  11. PART VI. REFORM?

    • 19 WEIGHING THE ALTERNATIVES: REFORM OR DEFORM?
      (pp. 347-360)
      Judith Best

      Alexander Hamilton began Federalist No. 68 by awarding Electoral College credits to the Framers. He noted, “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure or which has received the slightest mark of approbation from its opponents.” The modern reader is astonished! Since then, there have been more than seven hundred proposals to change or abolish the Electoral College. In fact, more constitutional amendments have been proposed on this subject than for any other part of the Constitution.

      At the...

    • 20 THE ELECTORAL COLLEGE: A FATALLY FLAWED INSTITUTION
      (pp. 361-370)
      Lawrence D. Longley

      The Electoral College is a highly imperfect method of electing the president of the United States. At best it distorts campaign strategy and poorly represents the popular will. At worst it can create a political and constitutional crisis in determining who should be president. My argument is simple: the 2000 election, like any election, vividly illustrates the distortions and imperfections of this fatally flawed means of determining the American president. Further, as in 2000 or a future election, the Electoral College has the potential for creating a serious electoral crisis, deeply eroding the security of our democratic processes.

      The Electoral...

    • 21 THE ELECTORAL COLLEGE: A MODEST CONTRIBUTION
      (pp. 371-390)
      Keith E. Whittington

      If one were to make a list of the most valuable elements of the United States Constitution, ranking them according to the importance of their contribution to preserving constitutional values, the Electoral College would fall rather low on the list. It is doubtful that we would design such an institution today if we were writing a constitution from scratch, and even the Founders came up with the device rather haphazardly. Unsurprisingly, it has been among the most frequent targets of reform, with hundreds of proposed constitutional amendments having been introduced in Congress to alter the presidential selection process. Nonetheless, the...

    • 22 POPULAR ELECTION OF THE PRESIDENT WITHOUT A CONSTITUTIONAL AMENDMENT
      (pp. 391-396)
      Robert W. Bennett

      In the wake of the 2000 presidential election, it is certain that there will be debate about whether a nationwide popular vote should be substituted for the Electoral College mechanism for choosing the president. But that debate may be stifled to a degree because of the widespread assumption that constitutional amendment is the only way to effect this change.¹ Amendment of the United States Constitution basically requires the agreement of two-thirds of each house of Congress and three-fourths of the states. For a variety of reasons, those hurdles are likely to prove insuperable, at least initially. But in fact a...

  12. LIST OF CONTRIBUTORS
    (pp. 397-400)
  13. INDEX
    (pp. 401-417)