The Supreme Court Decision of Bush Vs. Gore - Assignment Example

THE 2000 US PRESIDENTIAL ELECTION WAS UNFAIRLY WON BY GEORGE W.BUSH." DISCUSS, REFERRING TO THE ELECTORAL SYSTEM, VOTING RESULTS AND THE SUPREME COURT DECISION BUSH VS. GORE It can be said that in the election of 2000 neither candidate ran a campaign to be emulated, both came close to plucking defeat from victory; and each found his political fate hinging on the tao of the chad, the design of the butterfly ballot and ultimately on an unprecedented judicial intervention in to presidential politics. It is a reasonable view to take that the Supreme Court erred grievously in halting the Florida recount and suspect that Gore probably did command a plurality of the citizens who entered the state’s polling places on November 7. It is very hard to say Bush or Gore who really won Florida but the democrats alive today will go to their graves believing that a slim but solid plurality of all the voters who went to the polls in Florida on November 7 really did intend to vote for Al Gore. In this view the election was not lost when Bush v. Gore came on December 12, but rather when the election officials of Palm Beach County had their butterfly ballot brainstorm. Republicans will always counterclaim that any revised results produced by a manual recount of either the entire state or select constituencies would have been no more accurate than the original recounts completed within days of the election. Skeptics of both parties, in calmer times, might freely concede that with an electorate as closely divided as Florida’s was that day , conducted under any standard of ascertaining a voter’s intent, was destined to produce statistically insignificant results that would always fall within any reasonable margin of error. Electoral politics looks considerably more impressive when observed from a filmy distance that when examined under a microscope. American democracy’s inherent disorder and defects, it turns out, extends beyond abysmally low turnout, candidates manufactured by advertising agencies, and campaign finance shenanigans. The 2000 presedential election in particular revealed that a virtual draw in a winner take all contest assigns ultimate decision making power not only to untypical swing voters (an outcome that is undemocratic enough) but also to unavoidable inaccuracies in the tabulation of ballots. Even if the hand recounts in Florida had been conducted more scrupolously and thoroughly than they were, the difference in votes between the two candidates would have been remained statistically meaningless, that is to say, would have been less than the margin of error. Where the electorate is evenly divided, the identity of the U.S. president, who happens to hold the fate of the world in his hands, can be settled only by the flip of a coin. That the Election was unfairly won by Bush is quite evident. The most incendiary and not entirely implausible, way to elevate the post-election contest into a portentous showdown between rival worldviews has been to interpret it as a reprise of the battle for and against black enfranchisement. No one can plausibly deny that a poor black man is less likely than a rich white one to receive a fair trial in the United States. Before Florida 2000, however, most Americans imagined that the battle to extend the franchise to African-Americans was a thing of the past, largely resolved by the passage of the Voting Rights Act of 1965. But the nearly forgotten struggle against the racial restrictions on the suffrage resurfaced rudely in the 2000 election, and not only in the legally questionable scrubbing of “possible felons” from voter lists. Although only 11 percent of Florida voters are black, 54 percent of the spoiled ballots were casr by blacks. Democrats make much of these statistics. They do so because the tendency of Republicans to glamorize private initiative and denigrate government is not as immaculately race-neutral as it initially seems. In practice, the Republican predilection for purchasing private prosperity at the price of public squalor implies not so much an across-the-board as a selective defunding of public institutions. In poor black counties with a small tax base, antiquated voting machinery effectively dilutes the power of voters to influence the electoral outcome. In the aftermath to the 2000 election, the exasperation of African – Americans at minor episodes of disenfranchisement was quickened by the sarcastic Republican comments, uttered with a social Darwinist edge, to the effect that voters themselves are responsible if they fail to follow the written instructions. In affluent white counties, superior machinery and more professional poll watchers alerted voters who didn’t follow instructions to correct their mistakes on the spot. This suggests that, rhetoric aside, partisan Republicans are fully aware that the exercise of individual rights, such as the right to vote, depends critically on public expenditures. The reason they deny this publically may not be intellectual incoherence and ignorance of political theory, therefore. Rather, they may simply hope to benefit from public expenditures themselves while starving the public institutions that give reality to the rights of others, including black americans, who overwhelmingly tend to vote for the opposite party. Their strategy, if this analysis has any merit, is fairly simple: to fortify the castle of the strong, it helps to enfeeble the siege equipment of the weak. That diverse level of spending on voting technology, which must be kept in good repair and up to date by public expenditures, may have a discriminatory effect, is one of the unexpected lessons of election 2000. Thus, in optical scanner counties, only 1 percent of the ballots registered no presedential selection, whereas 4 percent of the ballots in punch-card counties registered no choice. Such a differential strongly suggests that the rate of ballot invalidation can be reduced by public investment in better equipment. Contrariwise, an existing asymmetry that broadly favors Republicans can be consolidated, intentionally or inadvertantly, by “reducing spending to balance the budget.” Exclusively local funding of vote-tabulating machinery turns out to promote the unequal distribution of American citizenship itself. Skepticism about Republican motives, fueled by such observations, has been reinforced by the curious and still inadequately theorized satisfaction that Republicans or Bush seem to feel at having won the White House without securing a popular plurality. Their repeated claim that the United States is “a Republic” and not a “Democracy”, often articulated in this context, implies that our old-fashioned and therefore vote diluting equipment in the poor black counties of Florida. It is quite clear that the outcome of the election 2000 was not decided according to clear rules known in advance; it soon became clear that it was going to be decided by crafty maneuvering within and around the rules, that turned out to be remarkably vague and elastic, as rules usually are. More to the point, the winner was destined to be the party (in this case Bush) with the best back channel connections to powerful institutions in a position to bend the rules to reach a univocal solution. The most important of these institutions, needless to say, was the U.S. Supreme Court. The problem with its clamorous intervention was not that it crossed a sacred line or entered into the political thicket. What made it so bitterly controversial was that the majority’s decision violated the fundamental legal principle that an arbiter cannot have a stake in the outcome. Before we discuss the outcome in Bush v. Gore we should know the rules that the Florida state legislature had established before November 7. They can be summarized as follows. In a presidential election, (1) all legally valid votes must be counted; (2) a legally valid vote is one in which the clear intent of the voter can be discerned, whether or not instructions were strictly followed; (3) if the outcome of the election is contested, recounts to determine the rightful winner shall be conducted; (4) courts shall play an important role in handling disputes arising from such recounts; (5) circuit court decisions are subject to appellate review; and (6) when faced with conflicting statutes and issues not explicitly covered by statute, courts have the power of “statutory construction,” that is, the authority to identify solutions and methods of reconcilation compatible with fundamental state interests. That the Florida Supreme Court violated Article II of the federal constitution by flagrantly ignoring the will of the Florida Legislature – as set down in the foregoing six points – is not even remotely plausible. A much more powerful case can be made that the Supreme Court itself violated Article II by wantonly overriding the explicit will of the Florida legislature that, in close elections recounts will be held to ensure that all legally valid votes are counted. The fact that Bush v. Gore has a much weaker basis in jurisprudence than Dred Scott v. Sandford is deplorable but not exceptional. The scandal lies in an appearance of vulgar favoritism. The majority is very unlikely to have decided as it did if the parties had been reversed. This is not to deny that the majority, despite disclaimers about an “unsought responsibility,” also desired to look decisive, to play an eye catching role in a once in a lifetime American drama. The Judges created the appearance of deciding the case on extralegal grounds. In the end the majority’s holding seems less ideological than political. On its face, the decision appears to have been driven by considerations of expediency, with adhoc rationalizations very loosely attached symbolized most remarkably by Justice Antonin Scalia’s sensational declaration (in his concurring opinion justifying the stay order of December 9) that the Court had to act in haste to ensure “public acceptance” of the Bush Presidency, as if he imagined himself to be some sort of spin doctor, with an unparalleled grasp of the conditions of “democratic stability,” able to engineer the attitudes of his countrymen from his chambers. Worst of all, the conservative was attempting to protect the interests of George W. Bush to consolidate and perpetuate the dominance of the conservative thinking in the jurisprudence of the Court. Apparently unembarassed at being percieved as black-robed operatives in James Baker’s run-out-the-clock campaign, the conservative majority took ample advantage of the special status of the Supreme Court, a body unique in our polity because subject to no higher authority empowered to correct its trespass. The culmination of the justices unaccountable conceit came in the famous disclaimer: “Our consideration is limited to the present circumstances.” Once they had poured the candidate Gore down the drainpipe, they comforted us with assurances that no extra babies were in the bath water. To bolster their claim that the electoral dispute in Florida raised a justiciable federal question, a majority of five justices appended an equal protection argument to their Article II claim. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over another.” This second argument is now widely viewed as extremely tenous, even by those who cheered the results of Bush v. Gore. What is worse, by heaping one argument on top of the other, the majority seemed to be replicating the strategy of Bush campaign operatives, namely to spew forth as many miscellaneous arguments as possible, in the hope that at least some would strike the target. It is quite apparent that George Bush’s election as President was a evident feebleness of the jurisprudential system. This bungled decision will always haunt the right. Not only will the federal courts be flooded by lawsuits whenever there is a close election but the Bush Presidency will always be marred by controversy and considered as illegitimate and tainted. The Supreme Court had thrown away in an instant the social prestige it had painstakingly accumulated over decades. And, finally, the public’s faith in the rule of law, as something distinct from partisan political maneuvering, has supposedly been shattered. References John Milton Cooper,Jr. : The Election of 2000 at the Bar of History Henry E. Brady : Political Party Coalitions and the 2000 Election Alexander Keysaar ; The Right to Vote and Election 2000 Larry D. Kramer : The Supreme Court in Politics Pamela S. Karlan : Equal Protection: Bush v. Gore and making of a Precedent Jack N. Rakove : The E- College in the E-Age Read More