Breaking the Deadlock

Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts

Richard A. Posner
Copyright Date: 2001
Pages: 282
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    Breaking the Deadlock
    Book Description:

    The 2000 Presidential election ended in a collision of history, law, and the courts. It produced a deadlock that dragged out the result for over a month, and consequences--real and imagined--that promise to drag on for years. In the first in-depth study of the election and its litigious aftermath, Judge Posner surveys the history and theory of American electoral law and practice, analyzes which Presidential candidate ''really'' won the popular vote in Florida, surveys the litigation that ensued, evaluates the courts, the lawyers, and the commentators, and ends with a blueprint for reforming our Presidential electoral practices.

    The book starts with an overview of the electoral process, including its history and guiding theories. It looks next at the Florida election itself, exploring which candidate ''really'' won and whether this is even a meaningful question. The focus then shifts to the complex litigation, both state and federal, provoked by the photo finish. On the basis of the pragmatic jurisprudence that Judge Posner has articulated and defended in his previous writings, this book offers an alternative justification for the Supreme Court's decision in Bush v. Gore while praising the Court for averting the chaotic consequences of an unresolved deadlock.

    Posner also evaluates the performance of the lawyers who conducted the post-election litigation and of the academics who commented on the unfolding drama. He argues that neither Gore's nor Bush's lawyers blundered seriously, but that the reaction of the legal professoriat to the litigation exposed serious flaws in the academic practice of constitutional law. While rejecting such radical moves as abolishing the Electoral College or creating a national ballot, Posner concludes with a detailed plan of feasible reforms designed to avoid a repetition of the 2000 election fiasco.

    Lawyers, political scientists, pundits, and politicians are waiting to hear what Judge Posner has to say. But this book is written for and will be welcomed by all who were riveted by the recent crisis of presidential succession.

    eISBN: 978-1-4008-2428-1
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xii)
  4. Chronology of the Deadlock
    (pp. xiii-xiv)
  5. Glossary of Election Terms
    (pp. xv-xviii)
  6. Introduction
    (pp. 1-11)

    The tumultuous political and legal events (in a word, the “deadlock”) that are the subject of this book ran their course in only five weeks—from November 8, 2000, the day after the 2000 Presidential election, to December 13, 2000, the day that Al Gore conceded the election to George Bush. This short period was dense with incident, and the book will be more intelligible if I supplement the chronology at the front of the book with a brief narrative. That is one task of this Introduction; the other, with which I begin, is to outline the book itself.


  7. Chapter 1 The Road to Florida 2000
    (pp. 12-47)

    Behind the 2000 Presidential election in Florida lie thousands of years of thinking about, controversy over, experimentation with, regulation of, and tinkering with the popular vote as the method of political governance deemed central to democratic theory.¹ Not that voting is limited to the political arena, or to democracies. Appellate decisions are determined by judges’ votes; one of the jokes that went the rounds afterBush v. Gorewas decided had Bush saying, “I want to thank those who voted for me for President: Rehnquist, O’Connor, Scalia, Kennedy, and Thomas.” And one of the complaints about the punchcard voting machines...

  8. Chapter 2 The Deadlocked Election
    (pp. 48-91)

    Floridians went to the polls along with the rest of the nation on November 7, 2000. On November 18, after the ballots cast on election day had been counted mechanically and then recounted mechanically, after a few completed hand recounts (mainly in Volusia County) had been factored in, and after late-arriving overseas ballots had been added to the tally, Bush was ahead by only 930 votes out of the almost six million votes that had been cast and counted in Florida for a Presidential candidate.² The secretary of state of Florida, Katherine Harris, wanted to stop there and certify Bush...

  9. Chapter 3 The Postelection Struggle in the Courts
    (pp. 92-149)

    The litigation that arose out of the deadlocked Florida election and culminated in the Supreme Court’s decision inBush v. Gorewas hydra-headed, complex, and intricate, despite being highly compressed in time. It involved numerous provisions of state and federal law and encompassed no fewer than eight major judicial decisions and a number of minor ones.¹ We must work through its stages carefully, beginning with a summary of Florida’s election statute, for it was on the meaning of that statute that the entire litigation pivoted.²

    Florida’s election code requires the counties to submit their vote totals to Florida’s secretary of...

  10. Chapter 4 Critiquing the Participants
    (pp. 150-220)

    The armchair generals have been busy criticizing the participants in the deadlock drama, notably the judges (especially the Justices of the Supreme Court) who decided the cases discussed in the preceding chapter, and the lawyers for the parties to those cases. These criticisms seem to me largely misplaced. The participants most deserving of criticism, though as yet largely spared it, are the law professors who offered public comments on the unfolding drama.

    As we saw in the previous chapter, the Supreme Court took the pragmatic route inBush v. Gore, cut the Gordian knot, and let Bush get on with...

  11. Chapter 5 Consequences and Reforms
    (pp. 221-251)

    It is too early to say what the consequences of the 2000 election deadlock, and of the manner in which it was resolved, will be. It is reasonably clear that had Gore not sought a hand recount or other relief after the machine recount confirmed Bush’s lead in Florida, or had the Florida supreme court refused to interfere with Katherine Harris’s rulings, the near tie in the Florida popular vote would have had only two consequences. One would have been to accelerate the movement away from the punchcard voting method, widely regarded as outmoded yet still in use in more...

  12. Conclusion
    (pp. 252-260)

    The drama that culminated in the Supreme Court’s decision inBush v. Goreis depicted in some quarters as a defeat of democracy, a thwarting of the popular will. The winner of the popular vote nationwide—who might well have prevailed in the Electoral College too had Florida used up-to-date voting machines, or even if a single county in Florida had designed a less confusing ballot (Palm Beach County, site of the infamous butterfly ballot)—was robbed of the victory that a manual recount would have given him. He was robbed, the argument continues, by a bare majority of that...

  13. Index
    (pp. 261-266)