Cover image for Bush v. Gore : the court cases and the commentary
Bush v. Gore : the court cases and the commentary
Dionne, E. J., Jr.
Publication Information:
Washington, D.C. : Brookings Institution Press, [2001]

Physical Description:
xiv, 344 pages ; 23 cm
"In the first half of this volume gathers what we and the editors at the Brookings Institution Press believe to be the most important legal documents in the Bush-Gore confrontation...The book begins with the early advisory rulings on the recounts by Florida state officials. It moves on to the intermediate court rulings and ends with the critical decisions in early December by the Florida Supreme Court and the United States Supreme Court. We have included the dissents in all the major cases...The second half of the book consists of contemporaneous commentaries on the controversy. These include columns, mazagine articles, editorials and also a few news stories that shed important light on the issues at stake" -- p.2.
General Note:
Includes index.
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On December 12, 2000, a controversial decision by the Supreme Court of the United States effectively ended the disputed presidential contest between George W. Bush and Albert Gore Jr. with a 5-4 ruling that revealed the court to be as bitterly divided as the electorate. Four days earlier, the Florida Supreme Court had abruptly changed the dynamics of the election by reversing a lower court and ordering hand recounts of "undervotes" statewide. The U.S. Supreme Court quickly stepped in to halt the recounts and agreed to hear Bush v. Gore. After brief oral arguments and a short period of deliberation, the high court reversed the state court decision. The justices in both cases were bitterly divided, and passionate language emerged in both the majority rulings and the dissents. The drama and divisiveness of this extraordinary saga come to life in the rulings, opinions, and dissents from these two cases: U.S. Supreme Court case 00-949 (Bush v. Gore) and Florida Supreme Court case 00-2431 (Gore v. Harris). The first section of this volume gathers the complete text of both rulings, along with selections from oral arguments in the U.S. Supreme Court case. The second section of the book gathers the most significant opinion pieces from journalists and scholars on both sides of the political fence. Selected and organized by political analysts E.J. Dionne and William Kristol, these articles illuminate the perspectives of both sides about the various twists and turns in the post-election campaign, and the landmark judicial intervention. A companion website will provide links to documents from additional legal proceedings and other related documents and writings. The legal and historical significance of the 2000 election will be studied and debated for years to come. This volume combines the most important source documents with the most intelligent opinion and analysis about the conflict and its controversial resolution.

Author Notes

E.J. Dionne Jr. is a senior fellow at the Brookings Institution, cochair of the Pew Forum on Religion and Public Life, and a syndicated columnist for the Washington Post Writers Group. William Kristol is editor and publisher of The Weekly Standard.

Reviews 2

Library Journal Review

Washington Post columnist Dionne and Weekly Standard editor Kristol have assembled 12 legal opinions and 62 pieces of journalism on the recent "Five-Week Recount War." The legal documents include texts of four November advisory opinions from Florida officials, several court decisions preceding December's Gore v. Harris in the Florida Supreme Court, and the climactic Bush v. Gore in the U.S. Supreme Court. The journalism is mainly the work of national columnists from such publications as the New York Times, Wall Street Journal, New Republic, and National Review, plus the editors' own Post and Standard pieces. Some legal documents are not printed in full, but the complete texts are available on an accompanying web site. The editors, who differ on recount questions, have been careful to balance opinions in their column selections. They have contributed a brief introduction and a chronology, but otherwise the book is purely documentary. An optional purchase for libraries, who can weigh the local advantage of having this inexpensive compilation from a prestigious imprint against the time staff and patrons would otherwise spend locating these scattered texts in various print and online sources. Robert F. Nardini, Chichester, NH (c) Copyright 2010. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.

Choice Review

The 2000 presidential election was exceptionally different from past contests in at least three respects. First, presidential preferences were abnormally close in the popular vote and in the Electoral College division. Second was the closeness of the Florida contest and the resulting postelection dispute over that state's count, recount, and recounts of recounts. Third, and most exceptional, was the role local, state, and national courts played in resolving that dispute. The latter is reflected in the fact that about half the books published so far on election 2000 examine aspects of the role of the courts. Most notable are The Miami Herald Report: Democracy Held Hostage (2001); 36 Days: The Complete Chronicle of the 2000 Presidential Election Crisis (2001); Alan Dershowitz's Supreme Injustice (2001). Most useful, however, are the documents assembled by Dionne (Washington Post columnist) and Kristol (editor, Weekly Standard). They include legal opinions and the leading Florida and US Supreme Court cases that resolved the election dispute. Commentary by newspaper and journal columnists supplements this useful collection. Not to be overlooked are more conventional treatments of elections such as The Elections of 2000, ed. by William Nelson (2001), and The Election of 2000, part of the series covering elections since 1976, edited by Gerald Pomper (2001). Recommended for upper-division undergraduates and above. E. C. Dreyer University of Tulsa



Introduction The Florida Moment E.J. DIONNE JR. WILLIAM KRISTOL Our nation has never decided a presidential contest the way it decided the election of 2000. Never before has an election hung on the judgment of the United States Supreme Court, let alone on a decision that split the court into bitter camps and was settled by a single vote. Not in 124 years has a presidential election result been so disputed. Never in all those years have so many Americans believed that the winner of the White House actually lost the election. Nor in all those years has the winning side been so convinced that the losing candidate was intent on "stealing the election." Rarely in our history have Americans been so divided on basic issues of democracy: how the votes should be counted, whether the electoral system was fair, and which legal bodies should decide the winner. The editors of this book are friends who disagree on what should have happened in the extraordinary five weeks following Election Day 2000. We agree that the judiciary played a much larger role in the result than is proper in a democratic republic. But we disagree, as our own essays in this volume make clear, about which court decided wrongly. We disagree as well about whether or not the Florida legislature had a role to play in determining which candidate should have received that state's 25 electoral votes. We disagree over the merits of the United States Supreme Court's 5-to-4 ruling in favor of Bush. But we both believe that what might be called The Florida Moment was an important moment--even a touchstone--in our nation's politics and history. This collection is built around that premise. It will be, we hope, of immediate interest to the many citizens who became passionately involved in the great national debate about the Florida recount and the very mechanisms of democracy. But we hope and suspect that this book might also be of long-term interest to students of American politics (in classrooms and lecture halls, to be sure, but not just there), because the debate surrounding the Five Week Recount War engaged fundamental issues of American politics. These include the obligations of fairness and equality, the requirements of a democratic system, the roles of elected bodies and the courts in interpreting and vindicating the Constitution, the best means of ensuring racial justice at the polls, the value of openness and public disclosure. During the Florida battle, we argued about everything from how (and if ) ballots should be recounted to the ways in which some voting mechanisms treated some voters more fairly than others. And we argued about court decisions--especially the Supreme Court's final ruling in Bush v. Gore, which will be debated in the coming months and years as intently as many other famously controversial court cases. The first half of the volume gathers what we and the editors at the Brookings Institution Press believe to be the most important legal documents in the Bush-Gore confrontation. Although written by lawyers for legal purposes, most of these documents are surprisingly accessible to those without formal legal training (a group that includes us). Their readability may reflect the fact that almost all of them dealt with more than legal technicalities. They engaged some of the most basic issues in our democracy. The book begins with the early advisory rulings on the recounts by Florida's state officials. It moves on to the intermediate court rulings and ends with the critical decisions in early December by the Florida Supreme Court and the United States Supreme Court. We have included the dissents in all the major cases. As is often the case with dissents, they provided some of the most eloquent statements of principle in the entire controversy. Readers interested in other legal documents relating to the Florida election cases, including oral and written arguments, will be able to find them on a web site established as a companion to this book, at In some instances, court decisions reprinted here have been edited to cut out long, distracting, parenthetical, references to other cases. The full texts can be found on the website. The second half of the book consists of contemporaneous commentaries on the controversy. These include columns, magazine articles, editorials and also a few news stories that shed important light on the issues at stake. Whatever else people make of this controversy in the future, it's fair to say that it generated a rather high level of discussion at the time--much of it produced on very short deadlines. We believe that many of these articles (we don't pretend to know for certain which ones) will remain illuminating many years from now as powerful testimony to the issues that mattered at a crucial moment in our country's political history. Philosophers, law professors, political scientists, and political commentators understood rather quickly the significance of what was transpiring, and they were moved to place the controversy in a larger context--without, as you'll see, putting aside their own commitments, principles, and passions. Yes, there was also a fair amount of invective, directed especially (and, in the view of one editor but not the other, unfairly) at Al Gore, and also at the courts. But for better or worse, invective is also part of the political debate--and what may look like invective to one person may look like reasoned argument to another. In the end, the reader can decide which was which. We have tried to minimize the level of invective by selecting articles that highlight what we see as particularly important issues raised by The Florida Moment. These include judicial activism (on both sides); the right of voters to have their ballots counted; the role of the political branches of government in deciding political contests; the right of all Americans to know how Florida actually voted; the obligations of political candidates in close races to the common good; the vices and virtues of the electoral college; the right of all voters to cast their ballots free from intimidation; and the proper reading of what our Constitution says about how presidential elections should be decided. We also warn readers that, to keep this volume to a manageable size, we have left out much fine writing about the Florida struggle. In the final stages of editing, we had to cut commentaries that one or both of us admired, because we had run out of space. We do think that the writers included here are broadly representative--and among the best representatives--of the range of opinions offered during The Florida Moment. We tried to make the best judgment we could about which article, of several candidates, best presented a particular aspect of the case. But we understand--and hope readers, and those writers not included here, will understand--that such judgments can be subjective. On certain issues, especially on the U.S. Supreme Court's final ruling, we decided to run the risk of including overlapping arguments because the questions at stake were of particular interest. This collection leans toward commentary rather than reportage. Many good journalists will continue to report on what happened in Florida, and several comprehensive accounts will no doubt be published in the coming months and years. That also means we have left out much of the fine work done by Florida newspapers during the recount struggle. We hope and suspect that the efforts of Florida journalists will be captured in other volumes. Our purpose here is to present the arguments raised by the recount battle and to explore the issues behind the controversy. Virtually all the commentaries we have chosen are short, pungent, and aimed at a general audience. Many of them are by distinguished scholars who joined the national debate on op-ed pages and in magazines. Readers who believe that some important article or comment was excluded should contact us through the Brookings Institution Press. If we ever put together a second edition of this book, we'll be grateful for the advice. As best as we could, we organized the commentaries in chronological order so readers could follow the arguments from the beginning of the controversy to the end. We have included dates on all the pieces. But dates on magazine articles can be misleading, since magazines often date themselves for the end of their newsstand sale period rather than by the date of actual publication. In ordering the commentaries, we have tried to follow the real time of publication, not the magazine cover dates. We confess to having included several of our own pieces here. It would be perfectly just to accuse us of having a bias in our own favor, but those pieces might at least help explain why each of us believes The Florida Moment was so important and enlightening. We'd also note that some of our own articles were among those that hit the cutting room floor and didn't make the book. Both editors stand behind the book as a whole, but there was a division of labor. Dionne was primarily responsible for selecting the pieces that were sympathetic to the idea of carrying the recount forward, opposed to the Florida legislature's effort to insinuate itself in the battle, and critical of the United States Supreme Court's decision. Kristol was primarily responsible for selecting those critical of the Florida Supreme Court's rulings in favor of further recounts, supportive of a role for the Florida legislature, and favorable toward the U.S. Supreme Court decision. It should be said, though, that in a fair number of cases we agreed on what were the best arguments presented, even against our respective sides. We also tried to include commentaries that did not strictly represent one side of the argument or the other, though we did lean toward pieces that sharpened and, we hope, might clarify the debate. Readers will note that some writers have identifications under their articles-- about what they do, where they teach, and the like--and others do not. We generally followed what originally appeared in print. Writers without identification are editors, staff writers, or columnists for the pubication listed, or well-known syndicated columnists. This volume would have been impossible absent the remarkable work on a demanding schedule by a long list of very able and very generous people at the Brookings Institution Press. Robert Faherty, the director, and Becky Clark, marketing director, saw that a collection of this sort might be appealing to readers, useful to teachers and students, and helpful in furthering the debate unleashed by The Florida Moment. They went to work immediately and with great skill and good cheer. They enlisted virtually the whole staff of the press. Chris Kelaher searched, searched, and searched again for the various commentaries. It is not an exaggeration to say this book could not have happened without him. Tin-Ming Hsu and Chris were extraordinarily thoughtful in helping to choose the commentaries. Charles Dibble did a superb job editing and organizing the cases. Lawrence Converse, Janet Walker, Susan Woollen, and Tanjam Jacobson handled design, editing, and production and did amazing things on an extremely condensed schedule. Tom Parsons restructured the Brookings catalogue to allow us to announce this book. Cynthia Strauss-Ortiz ably did the very onerous and essential work of gaining permissions to reprint the pieces here. And for help on so many tasks, great thanks also to Colin Johnson, Nicole Pagano, Christopher O'Brien, and Isha Wilkerson. This book would have been impossible to produce if a large number of publications and columnists' syndicates had not granted us permission, on a very timely basis, to reprint work published elsewhere. We acknowledge them elsewhere in the book, but we are grateful to them all. Shortly after the votes--or at least most of them--were counted, the conservative writer Terry Teachout suggested in Commentary magazine that the results of the election showed our country divided into two nations. He called them "Republican Nation" and "Democratic Nation." Most striking, Teachout argued, were the divisions along the lines of region and culture. Although it's possible to argue that the divisions in the country are not quite as stark as Teachout suggests--a fact he acknowledges himself--his argument is compelling. And it is dead on when it comes to the country's reaction to The Florida Moment. Millions of Democrats will believe for the rest of their lives that George W. Bush became president through illegitimate means. They will believe he won only because his campaign blocked and obstructed recounts in Florida--and because this cynical strategy was ratified by a narrow, partisan U.S. Supreme Court majority that abused its power to install its preferred choice in the White House. Millions of Republicans will forever resent Democrats for not acknowledging the legitimacy of Bush's election. They will always see the recount as an unprincipled ploy by the Gore campaign--supported by a narrow Florida Supreme Court majority--to add into the state's totals as many questionable ballots in selected counties as might be necessary to grant Gore victory. A difference of this sort is not easily forgotten and the wounds it creates are not easily healed. This book proposes not to settle the argument but to document it. It shows how intelligent Americans came to disagree so profoundly and so passionately not only on which candidate should become our president, but also on how he should be chosen. Copyright © 2001 The Brookings Institution. All rights reserved.

Table of Contents

E.J. Dionne Jr.David Tell and William KristolAkhil Reed AmarGriffin BellJane MayerE.J. Dionne Jr.David TellThomas L. FriedmanRichard LowryAlan Brinkley and Michael W. McConnellGeorge F. WillMichael W. McConnellJonathan RauchThomas E. MannCharles KrauthammerWilliam KristolMichael KinsleyRamesh PonnuruRonald DworkinE.J. Dionne Jr.John YooPeter M. ShaneJohn Mintz and Dan KeatingNoemie EmeryThomas OliphantBob HerbertHarold MeyersonE.J. Dionne Jr.Colbert I. KingWilliam KristolRobert N. HochmanE.J. Dionne Jr.Michael GrevePamela S. KarlanRandy E. BarnettRonald BrownsteinNicholas ConfessoreJesse L. Jackson and John J. SweeneyLarry D. KramerGeorge F. WillFrank CerabinoRichard A. EpsteinE.J. Dionne Jr.Michael W. McConnellEric FonerMary McGroryLinda GreenhouseAnthony LewisScott TurowLani GuinierDavid TellJeffrey RosenThe EditorsNelson LundJohn J. DiIulio Jr.Michael S. GreveHendrik HertzbergStuart Taylor Jr.Randall KennedyCass Sunstein and Harvey J. Mansfield
Chronologyp. xi
Introduction: The Florida Momentp. 1
Court Cases
Advisory Opinion DE 00-10, Florida Department of State, Division of Elections, November 13, 2000p. 9
Advisory Opinion DE 00-11, Florida Department of State, Division of Elections, November 13, 2000p. 11
Advisory Opinion DE 00-13, Florida Department of State, Division of Elections, November 13, 2000p. 12
Advisory Legal Opinion AGO 2000-65, Florida Attorney General, November 14, 2000p. 14
McDermott v. Harris, Leon County (Florida) Circuit Court, November 14, 2000p. 19
Palm Beach County Canvassing Board v. Harris, Supreme Court of Florida, November 21, 2000p. 24
Bush v. Palm Beach County Canvassing Board, Supreme Court of the United States, December 4, 2000p. 48
Gore v. Harris, Leon County (Florida) Circuit Court, December 4, 2000p. 53
Gore v. Harris, Supreme Court of Florida, December 8, 2000p. 58
Bush v. Gore, Supreme Court of the United States, December 9, 2000p. 97
Bush v. Gore, Supreme Court of the United States, December 12, 2000p. 100
Per Curiamp. 100
Chief Justice Rehnquist, concurringp. 109
Justice Stevens, dissentingp. 117
Justice Souter, dissentingp. 121
Justice Ginsburg, dissentingp. 126
Justice Breyer, dissentingp. 132
Gore v. Harris, Supreme Court of Floridap. 144
Order on Remand, December 14, 2000p. 144
Opinion, December 22, 2000p. 145
Commentary November 7-21, 2000
Scrap This System from The Washington Postp. 165
Gore's Spoiled Ballot from The Weekly Standardp. 167
The Electoral College, Unfair from Day One from The New York Timesp. 171
A Gore Coup d'Etat? from The Wall Street Journalp. 173
A Time to Act Presidential from The Washington Postp. 175
Counting the Vote: Stop This Litigation from The Wall Street Journalp. 176
Dept. of Close Calls: George W.'s Cousin from The New Yorkerp. 179
Suddenly, Bush Likes the Lawyers from The Washington Postp. 181
The Gore Coup from The Weekly Standardp. 183
Can Gore Ever Win? from The New York Timesp. 187
Why the Restraint? from The National Reviewp. 189
Commentary November 22-December 9, 2000
What Now? from Slatep. 193
This Willful Court from The Washington Postp. 196
Supremely Ill-Judged from The Wall Street Journalp. 198
Hands Off from The New Republicp. 201
Gore Owes It to Nation to Fight On from The Boston Globep. 204
Our Imperial Judiciary from Timep. 206
Crowning the Imperial Judiciary from The New York Timesp. 209
Deadlines and Dishonesty from The Washington Postp. 211
The Judicial-Activist State from The National Reviewp. 213
The Phantom Poll Booth from The New York Review of Booksp. 217
Florida Fatigue from The Washington Postp. 222
A Legislature's Duty from The Wall Street Journalp. 224
Rein in the Legislature from The Washington Postp. 227
Florida Ballot Spoilage Likelier for Blacks from The Washington Postp. 229
First Principles in Florida from The Weekly Standardp. 234
Gov. Bush's Cynical End-Around in the Florida Legislature from The Boston Globep. 238
Keep Them Out! from The New York Timesp. 240
W. Stands for Wrongful from The LA Weeklyp. 242
Double Standard from The Washington Postp. 246
Ghosts in Florida from The Washington Postp. 248
Commentary December 10-13, 2000
A President by Judicial Fiat from The Weekly Standardp. 253
Our Robed Masters from The Weekly Standardp. 255
Let the Voters Decide from The Washington Postp. 257
The Equal-Protection Card from The National Reviewp. 260
The Court Casts Its Vote from The New York Timesp. 262
Left Tells Right: "Heads I Win, Tails You Lose" from The Wall Street Journalp. 264
In Blocking Vote Count, High Court Shows Which Team It's Rooting For from The Los Angeles Timesp. 266
Florida's Silver Lining from The American Prospectp. 269
Let the Count Continue from The Washington Postp. 272
No Surprise. It's an Activist Court from The New York Timesp. 273
Judicial Activism on Trial from The Washington Postp. 275
Commentary December 14, 2000...
A Place Forever Changed by Indecision 2000 from The Palm Beach Postp. 281
Constitutional Crash Landing from The National Reviewp. 284
So Much for States' Rights from The Washington Postp. 287
A Muddled Ruling from The Wall Street Journalp. 289
Partisanship Rules from The Nationp. 293
Supreme Travesty of Justice from The Washington Postp. 294
Another Kind of Bitter Split from The New York Timesp. 296
A Failure of Reason from The New York Timesp. 299
A Brand New Game from The Washington Postp. 301
A New Voting Rights Movement from The New York Timesp. 306
The Bush Victory from The Weekly Standardp. 308
The Supreme Court Commits Suicide from The New Republicp. 311
Unsafe Harbor from The New Republicp. 317
An Act of Courage from The Weekly Standardp. 319
Equal Protection Run Amok from The Weekly Standardp. 321
The Real Division in the Court from The Weekly Standardp. 323
Eppur Si Muove from The New Yorkerp. 330
Why the Florida Recount Was Egregiously One-Sided from The National Journalp. 332
Contempt of Court from The American Prospectp. 336
What We'll Remember in 2050 from The Chronicle of Higher Educationp. 339