Thirty-Six Days of Turmoil: George W. Bush and the 2000 Election

During his first term in office, President George W. Bush claimed that he had a clear political mandate from the voters of the United States to achieve his political goals. However many refuted the claim that President Bush had a political mandate considering he had lost the national popular vote and only gained the White House with a razor thing victory of the State of Florida, which took thirty-six days and the United States Supreme Court to decide. Nevertheless, the political environment of elected officials in Florida and in the U.S. Supreme Court gave Bush confidence that he would win Florida, thus allowing him to look at other victories during the Election of 2000 to defend his claim of a political mandate.

November 7, 2000: All Eyes on Florida

On November 7, 2000, the nation woke up on Election Day not knowing the historical significance this day would eventually hold. To many it was just like any election of years past, the only significance would be that at the end of the night the nation would learn who their forty-third president would be. However the Election of 2000 would be anything but ordinary.

To understand the importance of the events that took place on Election Day, observations must begin in the daysprior to Election Day itself. Weeks prior to November 7^th observers of elections had been telling the nation that the Election of 2000 appeared to be one of the closest elections in American history. “On October 21, for instance, an ABC News poll showed Bush with a slight lead of 3 to 4 percent. Three days later, a merging of the major daily tracking polls showed a statistical dead heat (Bush 46 percent, Gore 44 percent, with a margin of error between 3 to 4 percent). This dead heat would remained in effect a week later, with Bush and Gore each drawing 45 percent of the “likely vote” according to the New York Daily News.”1 With the presidential race nearing its end the campaigns of Vice President Al Gore and Governor George W. Bush both began to statistically map out the states that needed to be won to ensure they would win the White House, but one thing was evident between both camps, Florida’s 25 electoral votes were needed to reach the magical number of 270.

At the nomination conventions, Florida Governor Jeb Bush, the brother of George Bush, and his son George P. Bush made speeches at the Republican Convention and Florida U.S. Senator Bob Graham and Florida Attorney General Bob Butterworth made speeches at the Democratic Convention. Both candidates also ensured money in their campaign war chest would be made readily available. “As the election got closer…both candidates spent liberally on advertisement. Bush spent $14,471,491 on television ads in Florida alone. Gore spent less- $10,063,322- but this was his second highest total nationwide spending in a single state.” 2

The biggest advantage George Bush had in the state of Florida was the connections he had to the state. As it was stated above, Florida Governor Jeb Bush was younger brother of George Bush, and he was a co-chair for Bush’s Florida campaign. Secretary of State Katherine, who was in charge of overseeing all elections and election processes in Florida, was the second co-chair for the Florida campaign for George Bush. Jeb Bush’s son George P. Bush spoke to the Latino and youth voters. Lastly, ensure the Bush campaign would have a presence in Florida, while the campaign spoke to voters of other states, former President George H.W. Bush and First Lady Barbara Bush, parents of both George and Jeb Bush, spoke with voters. Without any similar family and political tie to the state of Florida, Al Gore tried to win voters through his choice of running mate, Joe Lieberman. “Lieberman, an Orthodox Jew, not only appealed to Florida’s large Jewish population, but his moral stance against Bill Clinton over the Monica Lewinsky affair reached out to social conservative Florida, a region that Democrats feared might be susceptible to poaching by Bush.”3 With the campaigns coming to a close, both Gore and Bush went into Election Day unsure how the state would fall.

Both the Gore and the Bush campaign would experience a bit of foreshadowing to what the nation would experience. At 5:30 a.m., Matthew Dowd, the Bush campaign director of polling, reviewed poll results before he completed his Election Day ritual of golfing. Three days before the election, Dowd commissioned a poll that showed Bush leading Florida by five points, Michigan by four, and Washington by four. “History, he knew, showed that when there is no incumbent president running, the election always breaks in favor or the party out of power in the last days.”4 But on that morning, Bush’s leads had all disappeared. In a poll conducted the Sunday and Monday before Election Day, had Bush dead even with Gore in Florida and Washington, and down one in Michigan. In the Nashville, TN, Rob Klain got a similar alarm that something was going wrong in Florida. At 8 a.m in Nashville, Rob Klain, the former chief-of-staff for Vice President Gore, received a call in the Nashville campaign headquarters from Lester Hyman. Hyman told Klain that his daughter Liz, a Washington attorney and a former colleague of Klain at the Department of Justice, was a poll volunteer at a polling station in Palm Beach County, Florida, a Democratic stronghold, and voters were panicking in confusion that they may of voted for Patrick J. Buchanan and not Gore as they wanted to because of the ballot format.

As the day went along both campaigns were making final election pushes and kept a close eye on Florida, both camps were being to become uncomfortable by how close the internal polls were. Then the unthinkable occurred for both campaigns, networks had made a decision as to who won Florida. By 7:45 pm, the network polls had showed Gore would have a substantial margin of victory by 6 points and claimed they were 99.5 percent sure Gore would win, meaning there was only 1 chance in 200 that they were wrong. “At 7:48 pm, NBC became the first network to call Florida for Gore. By 8:02 pm, all five networks and the AP had placed Florida in the Gore Column.”5 It appeared that Gore had won and was the new president of the United States, even though many of the polls in Florida remained open. Then the unthinkable happened. At 10 pm, every network had removed Florida from a Gore victory to once again too close to call. It had appeared that the tracking polls of the networks did not match the actual results coming in. It appeared that with 24 percent of the precincts of Florida reporting, Bush appeared to have a 3-point lead.

At 10 p.m., Volusia County elections supervisor Deanie Lowe was told by the county attorney, that she had just witnessed Gore’s total go backwards in the poll. Lowe quickly dismissed the claim and wrote it off as the attorney being tired from the long day. Then her phone rang. “A staff member was calling from an election night party across the street. ‘Gore just went backwards, Deanie,” she said.6 Quickly realizing two people could not have made the same mistake; she ordered the computers in her tabulation room to stop as she called the vendor of the software. The vendor’s troubleshooter informed Lowe to print out the tabulation, and there the error was realized. “In Precinct 216, home to a couple of hundred voters, Gore had been credited with minus 16,000.”7 The data card appeared to have give Bush 2,800 votes and 10,000 votes to the candidate of the Socialist Worker Party. “Lowe got busy removing the offending information from the county tally, then entered the correct numbers, which were: 193 votes for Gore, 22 for Bush, one for Nader, and none for the socialist.”8 Accounts of Gore losing votes mysteriously were occurring all over Florida, not just in Volusia County. Another faulty reporting error in Brevard County reduced Gore’s total by another 4,000 votes. 9

At 2 a.m., the polling results for the Fox News Network had George Bush leading Florida by 51, 433 votes, with only 179, 713 votes remaining to be counted. John Ellis, election analyst for Fox and cousin of George Bush, realized that for Gore to secure victory in Florida, he would need to win 63 percent of the remaining votes. Ellis made a decision and Fox took a leap of faith. At 2:16 a.m., anchor Brit Hume declared Bush the victor of Florida and thus the next president. As Fox was declaring Bush the winner of Florida, NBC analysts were observing their polls and were confused and were unable to make a decision. Not wanting to trail in coverage, NBC called Florida for Bush at 2:17 a.m., followed by CBS and CNN, and then ABC at 2:20 a.m. The momentum had shifted to Bush. Prior to the decision, Gore had 255 electoral votes and Bush had 246, with only three states remaining undecided- New Mexico, Oregon and Florida. The 25 electoral votes were key because no matter what happened in the other two states, it was impossible to cover the difference of Florida’s 25 electoral votes, 25 that was now in the Bush Column. 10

Feeling that momentum was now with the Bush campaign, Al Gore and campaign chairman William Daley made the decision to concede the race, a decision that was made without checking in Klein and the rest of the staff at the campaign headquarters. At 2:30 a.m., Daley called Bush’s campaign chairman Donald L. Evans that Gore would soon concede to Bush and then make a public statement.

However, both campaigns’ numbers were not matching the networks, in their minds Florida was still too close to call. In Austin, TX, Both Rove and Dowd had doubts. Their results had Florida at its best heading toward an automatic recount. Karen Hughes, the director of communication for Bush informed Jeb Bush that her poll numbers were no were near that being reported by networks, they were much closer. In Nashville, TN, Michael Whouley, a Gore strategist, remained skeptical as well. “The margin of victory wasn’t 50,000 in favor of Bush- it was more like 30,000.”11 Also, Whouley knew Palm Beach County wasn’t nearly as close to vote completion as people believed. There were still 100,000 votes to be counted there and it was a strong Democratic part of the state.

Then to everyone’s surprise the networks announced Gore had called Bush to concede and was now on his way to Nashville to make a formal announcement. Florida Attorney General Butterworth quickly called the Nashville headquarters to state that Gore had to be stopped from giving that speech. Butterworth informed Whouley the election was going to automatic recount. According to Florida law, “if the returns for any office reflect that a candidate was defeated or eliminated by one-half of a percent or less of the votes cast for such office…the board responsible for certifying the results of the vote on such a race or measure shall order a recount of the votes cast with respect to such office or measure.”12 With this new information, Whouley quickly got into contact with Daley and informed him about the true results and the Florida law. With Florida too close, Daley called Evans back and informed him there was a problem and not to let Bush make his victory speech. After informing Gore, the vice president called Austin back. Gore informed Bush that the original concession was to be retracted and he is no longer conceding the race due to Florida being too close to call, much to Bush’s surprise. Florida was now back in the undecided column.

John Ellis, Jeb Bush and The Call

As highlighted above, John Ellis, the first cousin of George and Jeb Bush played a crucial role in 2000 Presidential election. As the head election analyst for the Fox News Network, it was the responsibility of John Ellis to examine the statistical data being present to determine the official winner of each state and determine who the next president of the United States would be.

John Ellis became the head of the Fox News Network decision team in 1998 midterm election and then in 2000 presidential election. “He was so passionately biased in favor of his first cousin George W. Bush that in a July 3, 1999, opt-ed for the Boston Globe, he explained why he had to stop writing columns about the 2000 presidential campaign: ‘I am loyal to my cousin Gov. George Bush. I put that loyalty ahead of my loyalty to anyone outside my immediate family… There is no way for you to know if I am telling you the truth about George W. Bush’s presidential campaign because in my case, my loyalty goes to him and not to you.”13 Despite this outward acknowledgement of bias toward a specific candidate, chairman and CEO of Fox Roger Ailes hired Ellis to be their exit- poll guru.

Another aspect that disqualified him from the position he held in the 2000 election was his experience. In an article for Inside magazine after the election, he stated he had worked at the NBC News Election Unit for 11 years (1978-1989) and was a columnist for the Boston Globe from 1994-1998. However, what Ellis failed to mention that his work for NBC had little to do with actually calling elections and he had little understanding of the statistical methods used for projecting winning candidates based on exit polls and partial vote returns. Ellis aware of his short comings made sure Cynthia Talkov, the thirty-seven-year-old Berkeley-trained statistician, sat next to him the entire election day and night, and even went on to call her his “statistical wizard” in the Inside magazine article.14

The lack of statistical knowledge that Ellis had was truly evident during the 2000 primaries. Cynthia Talkov was hired to be a part of the Fox News Network decision team because of her tremendous statistical knowledge of the Voter News Service (VNS), which provided the statistics to help networks determine the outcome of elections. In 1990 and 1992 she worked at the Voter Research and Surveys (VRN), the precursor to VNS, with Warren Mitofsky and Murray Edelman, the two prominent election statisticians in the United States. However, during the 2000 primary season she realized Ellis and the other members of the Fox decision team lacked proper knowledge. The lack of knowledge was so severe that she asked Murray Edelman to come to Fox to teach Ellis and others some rudimentary rules of the exit poll. Talkov warned Edelman that Ellis and Fox executives had been unwilling to listen to her, but she wrote that off to her being young and a woman and felt perhaps Edelman may have more success. However, Edelman was not warmly received when he came in to make a presentation. “In a 2005 interview, Edelman said his most vivid memory was of Ellis, who was ‘so arrogant, as though he knew it all. When I talked to him I thought ‘Whoa!’- he was so confident, but knew so little.”15

On Election Day, while Talkov was busy examining the exit polls, John Ellis was spending most of his time talking on the phone to his cousins George W. and Jeb Bush. Talkov because aware of the constant phone conversations between Ellis and the Bushes during the New Hampshire primary, when she picked up Ellis’ phone while he was away from his desk. When she asked who was calling after the individual asked for Ellis, she was made aware that the person on the other line was George Bush. “One Election Day 2000, from sometime in the afternoon through the rest of the day and evening and into the next morning, Ellis was often on the phone with one or both cousins, talking with them about the exit polls and the likelihood Bush would win the election,” removing the objective analyst that the team was suppose to be taking part in. 16

As the evening turned into morning, most of the states had been decided and everyone at Fox realized Florida was now key for the election. By 1:20 a.m., Ellis claimed that there was no longer a need for the statistical model; it was now a game of need/get. According to Ellis, the model was simple, it was how many votes did Gore need to close Bush’s gap and how many votes was it projected that Gore would get in the remaining uncalled precincts. However, Ellis’ need/get ratio was a completely fabricated model based on nothing. “The computer screen provided the percent of the estimated outstanding vote that Gore would need, but it did not provide a composite ‘get’ figure. On the screens were listed all the counties with outstanding votes, and the percentage of votes going to Gore up until that time in each of the counties. There were no average ‘get’ figure; each percentage figure applied to a specific county.”17

With five minutes before two, Ellis claimed that Gore could not win because according to his need/get calculations, Gore need sixty-four percent of the vote, but was only going to get sixty percent. Although Ellis was sure that Bush had won, Ellis was hesitant to make the call and he realized the other networks were also hesitant because no one wanted to make a wrong decision twice. At 2:08 a.m., Ellis had a conversation with Jeb Bush to discuss the stats that he had on Florida and to ask Jeb Bush if he had similar information because as Ellis would later say, he was “wired in” to Florida. After ending the conversation with Jeb Bush, Ellis entered the decision room shouting, “ Jebbie says we got it! Jebbie says we got it.” After that conversation with Jeb Bush, Ellis claimed the need/get ratio was so large proving it impossible that Gore would win; he made the decision to call Florida and the election for Bush at 2:16 p.m., setting off a chain reaction by the other networks.

Voting Irregularities in Florida

According to Florida law, it is the responsibility of the governor and secretary of state to oversee and enforce all election laws to ensure they are upheld with full compliance. However, as mentioned earlier, Governor Jeb Bush and Secretary of State Katherine Harris both served as co-chairs to George W. Bush’s Florida campaign, thus they had political interest in ensuring that George Bush won the state of Florida in 2000. In June 2001, the United States Commission on Civil Rights realized a report titled Voting Irregularities in Florida During the 2000 Presidential Election that showed there were widespread voter disenfranchisements and irregularity that affected the result in Florida.

Voters not on the voter roll. On November 7, 2000, many voters arrived at their designated-polling place, but they were denied the opportunity to vote because their names were not on the voter rolls. When poll workers attempted to call the offices of supervisors of elections to verify the status of voter registration, they often would experience constant busy signals or no answer at all, thus the worker followed their training turned voters away from the polls, and Donnise DeSouza and R. Jai Howard presented two such accounts to the Commission.

Donnise DeSouza, an African American, has been a registered voter in Miami-Dade County since 1982. At 6:50 p.m., Ms. DeSouza went to her polling location, Richmond Fire Station, and showed her voter registration card to the poll worker only to be told that her name was not on the voter rolls. The poll worker then directed her to the “problem line,” so that her voter registration could be verified with the supervisor of elections. “Ms. DeSouza recalled that the line of about 15 people did not move, but at 7 p.m. when the poll began to close, a poll worker announced to the group ‘if [there] name was not on the roll that she could not let [them] vote and that there was nothing she could do.”18 At 7 p.m., the poll workers had abandoned all possibility of trying to verify the registrations and refused to let them vote, but state law allowed them to vote by absentee to allow time for the secretary of state’s office verify the registrations.

Due to her aggravation, Ms. DeSouza filed a complaint with various sources about her experience. Upon further investigation with the office of the supervisor of elections, it was determined that Florida law required the poll workers to continue their efforts to resolve the problem of these voters since they were inside the polling location prior to the 7 p.m. closing time. “Furthermore, Ms. DeSouza learned that her name was actually on the rolls of registered voters, because subsequently a worker at the elections office showed her the sheet that contained her name where she should have been allowed to sign.”19

R. Jai Howard, the vice president of the Florida Agricultural and Mechanical University Student Government Association, testified on behalf of 12,000 predominantly African American students She described to the commission the massive voter registration efforts that took place at the school prior to the election. “The association’s efforts continues until October 10, 2000 (the last day to register before the election) and included a rally in which Reverend Jesse Jackson and Ion Sancho, the Leon County supervisor of elections, participated20.” Despite these efforts, on Election Day, the Student Government Association learned that a large number of students had trouble voting, including a student who had two voter registration cards with two different precinct polling locations, some students who never received their registration cards, polling locations moved without notification, and students who had attempted to register numerous times and never received voter registration cards and were never entered into the system.

Marvin Rickles, Jr., a deputy at Precinct 74B in Palm Beach County, observed an African American school principal turned away after waiting for two hours because her name was not on the voter roll and the poll worker was unable to reach to supervisor of elections. The school principal returned to the polling location later in the afternoon and was then allowed to vote only after she discovered that her name had been misspelt on the voter rolls.

Finally, Millard Suid, a poll worker at the Water Works Department in Boynton Beach, testified to the commission that he was unable to get through to the office of the supervisor of elections. He recalled that he was only able to help one voter over the course of an eight-hour period. Mr. Suid stated that the precinct deputy estimated that during the eight hours, poll workers turned away approximately thirty-to-fifty voters.

Polling locations closing early or moving without notice. On November 7, 2000, many Floridians experience extreme frustration when they reported to their polling locations to only find that they were closed or moved to a new location without being notified. There were even instances of voters who were waiting in lines at their polling locations prior to 7 p.m. where told they where told they were not allowed to vote because polls were closed. Furthermore, according to Florida law, if a polling location was moved a voter must be notified of the change from seven-to-thirty days of the upcoming election. “Such a notice is to be published in a newspaper of general circulation within the county, and notices must be mailed to each registered voter at least 14 days prior to the election.”21 However, the election laws of Florida were not strictly followed on November 7, 2000.

Millard Suid, the poll worker from the Water Works Department, spoke with the commission and confirmed allegations by voters that it closed prior to 7 p.m. Ms. Suid explained that the gate at the Water Works Department was on an automatic timer that closed the gates at 6:15 p.m. everyday, even on Election Day. Ms. Suild blamed the disaster on Theresa LePore, the supervisor of elections for Boynton Beach County, who should of known about the gate timer because they had used that polling location in other elections.

What Happens Next?

After Vice-President Gore got off the phone with Governor Bush, campaign chairman William Daley asked the senior staff to convene at the headquarters at Nashville at about 4 a.m. “Giddy exhaustion prevailed as the high command gathered, a group that included media consultants [Carter] Eskew and [Robert] Shrum, and strategist Tad Devine, [Michael] Whouley, [Ron] Klaine, spokesman [Mark] Fabiani and [Chris] Lehane, and campaign manager Donna Brazile-amoung top political operatives in the Democratic Party.”22 With all of these bright political operatives, it was interesting that the person leading this meeting was not familiar with either of them, its was John Hardin Young.

John Hardin Young was a fifty-two year old lawyer who specialized in recounts, a field that only a few lawyers practiced. While speaking to the Gore senior staff, Young held in his hand a small book that was entitled The Recount Premier that he and co-authors Timothy Downs and Chris Sautter self-published in 1994. Unlike most authors, the trio of Young, Downs and Sautter intentionally limited distribution of their book. They gave copies only to Democrats confronting recounts, and kept them away from Republicans. Young advised the Gore staff to be weary of taking the battle to the courts because it will ensure public backlash that no elected official could rebound from, but he offered them one concrete recommendation, get people to Florida to ensure the recount of every vote.

The idea of sending people to Florida was an idea that was well supported by Daley because it gave a sense that Gore was still in the race without committing the campaign to anything to such as a lawsuit. However, he was unclear about the details, which he left to Jill Alper. Alper came up with the idea to use Joe Lieberman’s campaign planes to send the senior staff and seventy-two junior campaign staffers (who were mainly recent college graduates) to volunteer and canvass in Florida. “As dawn broke, the Florida secretary of state’s website showed Bush leading by 1, 784 votes.”23

Daley understood that before the campaign hit Florida they needed to set the tone early. Daley and Eskew decided the campaign tone would be over and they would take a statesmanlike and not confrontational tone. They then decided to bring on former secretary of state Warren Christopher to join the fight in Florida.

With the senior staff and volunteers on the Lieberman campaign plane, now called Recount One, the message coming out of the Gore camp was that Gore had won and it was evident especially when examine the national popular vote and that time was needed to ensure every vote was counted correctly. When the Gore camp landed in Florida, the first order of business was to hire lawyers. Klaine managed to arrange a meeting for later in the day to meet with Martha Barnett and Chesterfield Smith, two top lawyers at Holland & Knight, the biggest firm in Florida. However, at 6 p.m., the two lawyers called Klaine and informed him that they no longer would be able to take the case after all due to a conflict of interest with the firm representing a county canvassing board. The canceling by the firm was a sign that it was not going to be easy for Gore because firms did not want to offend Governor Bush by sided against his brother. To add insult to injury, “two of the state’s most powerful firms-Greenberg Traurig, and Steel Hector & Davis-signed up, respectively, to represent the George W. Bush campaign and Secretary of State Katherine Harris.”24

At the end of the day, Gore’s senior staff met once again to determine what Gore should do in Florida, however Gore’s luck has increased quite dramatically. The automatic machine recount had narrowed Bush’s lead considerably, going from Bush leading by 1, 784 votes to only 327 votes. With fortunes on their side, Young informed the staff that according to Florida law, Gore had 72 hours from the time the polls closed on Election Night to ask for a manual recount-recounts of the vote by hand. Daley realizing they would not be able to get all 67 Florida counties to issue a recount they focused on only four countries that were the more populous and had known voting issues on Election Day: Volusia, Miami-Dade, Palm Beach and Broward, all strong Democratic strongholds.

In the George Bush camp, on the morning of Wednesday, November 8^th, former Ronald Reagan chief-of-staff James A. Baker III’s cell phone rang while waiting for an airplane at a Houston airport. On the other end of the line was Don Evans, Bush’s campaign chairman, calling to say that the Bush team was just informed that the Gore team hired Warren Christopher to represent them in Florida, and if he was interested to represent Bush in Florida, Baker agreed. After a meeting with Governor Jeb Bush (known as Jebbie to Baker), Baker was informed that most of the members of canvassing boards in most of the counties-the people who would be conducting the recounts-where Democrats, and that this would probably end up in the Florida Supreme Court, which was a disaster area for Republicans. With the landscape widely against George Bush for success during the recount, on November 9, Baker gathered his team to determine the strategy. With Gore only asking for recounts in four Democratic counties, Ted Olson, a conservative lawyer from Washington, suggested that the “selective” recounts violated the equal protection clause of the Fourteenth Amendment because they emphasized the votes of some counties and not of others’. On November 10 Baker advised his lawyers to prepare a complaint for federal court arguing Olson’s theory that he recounts violated the Fourteenth Amendment.

Bring in the Lawyers

Perhaps the most import aspect of the 2000 campaign Florida was the long series of court cases that took place. Today-as it was in 2000-many people view the judicial process as being solely in favor of Gore and it took the United States Supreme Court to render the first judicial opinion in favor of Bush. Although this viewpoint of the courts in Florida battling against the U.S. Supreme Court is a concept that grabs the attentions of many, it is not truthful. There were many court decisions that were strongly in favor of Bush, which caused the recount process to slow down quite dramatically. Of the twelve court decisions in the State of Florida between Monday, November 13 and Tuesday, December 12, six of those decisions had at least some aspect in support of Bush’s claim to being the winner of Florida.

Throughout the recount process, Katherine Harris had intended to have strict interpretations of the election laws to see an end to the electoral process. One such example was on November 13; Katherine Harris claimed that the only reason for hand recounts to take place was if the machines that were intended to do the counting were broken. Katherine Harris then proceeded to argue that an error in vote tabulation in which the machine failed to count ballots correctly due to certain marks was not considered to be a cause for hand recount. With the Bush lead constantly shrinking, the Gore camp used the courts to ensure that the recount process would be allowed to take its course and not disturbed in anyway, but the harder the Gore camp fought, the harder the Bush camp fought to have the courts uphold the interpretation of Katherine Harris and to ensure Bush would be the winners.

The process of using litigation occurred when the Bush camp decided to take the gloves off and request the Southern District Court of Florida to throw out hand recounts. Although Judge Donald Middlebrooks did not determine whether hand recounts were legal and suggested the state courts to decide proper action, the door was now open to determine the election through the judicial process.

One of the first judicial decisions in favor of Bush occurred on Tuesday, November 14, when Leon County Judge Terry P. Lewis ruled that Katherine Harris’ decision to comply with state election laws and set a deadline for all recounts must be received by no later than 5 p.m on November 14 was upheld. Following the decision by Judge Lewis, Katherine Harris appeared on national television at 7:40 p.m., to announce that all 67 countries had reported by the deadline and Bush led by 300 votes, pending the count of the overseas absentee ballots that would be counted by November 18. The decision by Judge Lewis to uphold Harris’ decision to set a deadline to complete the recounts gave the nation the impression that the process being taken in Florida was legitimate and it aided in the slowing down of momentum for Gore because with the deadline approaching, many of the recount locations stopped the process realizing they would not reach the deadline. Judge Lewis would issue another ruling in favor of Bush on Friday November 17, when Judge Lewis issued a decision that stated that Katherine Harris may declare the winner of Florida after the absentee ballot deadline on November 18, without including results of hand recounts. However, this victory was short lived because the Florida Supreme Court barred the certification of the election until it issued its own ruling on the disputed votes, which was decided on November 21, by a unanimous decision to allow hand recounts to be accepted by the state for five more days, prompting Bush’s legal team to request the U.S. Supreme Court to review the decision by the Florida Supreme Court.

Another judge that issued a ruling in favor of Bush that had a substantial impact of the perception of the recount results was Leon County Judge N. Saunders Sauls. On November 21, the Florida Supreme Court ruled that hand recounts would be accepted by the state for five more days and set a deadline of 5 p.m. on Sunday, November 26. On November 26, Palm Beach County missed the 5 p.m. deadline due to ballots remaining to be counted and request an extension, but Katherine Harris rejected the request and certified Bush the winner of Florida’s 25 electoral votes at 7:30 p.m., with Bush leading Florida by 537 votes. Feeling the lack of ballots being counted cost him the election, the Gore legal team, led by David Boies, filed a lawsuit in Leon County Circuit Court asking Judge Sauls to recount the disputed ballots. Judge Sauls ordered that the dispute ballots from Palm Beach and Miami-Dade to be delivered to the court for examination. However, on Monday, December 4^th, without reviewing the disputed ballots, Judge Sauls stated that there was no credible evidence that recounts would change the outcome of the election, refusing the reverse the certification. The decision was a major defeat for Gore. However, refusing to allow the election to be determined by only 537 ballots, the Gore legal team immediately appealed to the Florida Supreme Court.

Florida Supreme Court

On Thursday, December 7, the Florida Supreme Court began hearing arguments on Gore’s appeal of Judge Sauls’ decision to not require the hand recounts to continue. David Boies began his argument that nowhere in Article II of the United States Constitution barred state courts from interpretations laws about presidential elections because the founders never intended legislatures to be both the legislative and judicial body in regards to elections. However, Chief Justice Charles T. Wells questioned Boies, echoing the concerns of Justice Sauls, that if the court allows for recount to take place, he felt it opened the door for other candidates to use Gore’s argument of under and over-votes to require a recount, but Boies refuted this claim stating that they had pinpointed 215 votes in Palm Beach and 168 votes in Miami-Dade to be considered for recount.

Arguing in favor of Bush was Barry Richard, who replaced Michael Carvin considering Carvin’s losing recorded in front of the Florida Supreme Court. Richard received hostile treatment from the Court’s two most liberal members Harry Anstead and Barbara Pariente. After the closing arguments, the court was clearly spilt, two for Gore and two in support of Bush, with three justices undecided.

On Friday, December 8, the Florida Supreme Court had made a decision and was set to issue their ruling. In a 4-3 decision, the Florida Supreme Court overturned the ruling by Judge Saul. “The majority easily agreed on several specifics. Gore should have received the 215 net votes that were submitted late from Palm Beach…the court also gave Gore the 168 net votes from the partial recount in Miami-Dade…In light of the ruling Bush’s lead in the state fell from 537 to 154 votes.”25 In another shocking decision, the court echoed the Republican claim that Gore had selected recounts to occur in counties that he would gain votes, so the court ordered that all 60,000 under votes statewide be recounted, even though Gore had only asked votes be counted in Miami-Dade and Palm Beach. With the court shockingly ruling in favor of Gore and authorizing a statewide recount, the Bush legal team immediately appeals the decision to the U.S. Supreme Court, who approved the appeal in a 5-4 decision and issued all recounts be stopped.

Bush v. Gore

On Monday, December 11, the United States Supreme Court heard arguments on behalf of Ted Olson, representing Bush, and David Boise, representing Gore on Bush’s appeal of the December 8 decision by the Florida Supreme Court. Ted Olson understood that the Supreme Court was in favor of his argument because the court had given him five votes in granting him the stay to halt all recounts; all he had to do was keep the coalition. Olson returned to the original narrow interpretation of Article II stating that the U.S. Constitution is clear that only the state legislature, and not the state courts, could make rules for presidential elections, but it was not an argument supported by Justice Anthony Kennedy, the court’s swing vote. Olson then quickly changed his argument to suggest that federal law strictly prohibited Florida from changing the rules of the vote counting after the ballots had been cast. Boise, as he had done in front of the Florida Supreme Court, argued that all disputed votes must be counted the ensure the intent of the voter be granted. With both sides giving, competent, yet uninspired arguments, William Daley agreed with Olson, with nothing in the oral arguments suggesting any of the justices would change their minds, the fives votes that granted the stay appeared to be victory for Bush.

On Tuesday, December 12, the United States Supreme Court in a 5-4 decision overturned the Florida Supreme Court’s ruling. The court majority of Chief Justice Rehnquist, Justice Thomas and Justice Scalia argued that the Florida Supreme Court in ordering the statewide recount had usurped the role that Article II assigned to the state legislature. Justice Kennedy and Justice O’Connor concerned with the court’s ruling to overturn the Florida decision but where unsure of what grounds. The court majority argued that due to the recount deadline being set for December 12, there was no time to send it back the state legislature to determine set standards for the recounts. The court minority, Justice Breyer, Souter, Stevens and Ginsburg, in their dissent invoked the principle of fairness, arguing that the recount had stopped on December 9 when the stay was granted, three days before the deadline, thus the court was obligated to grant and extension of three days and send the case back to the State of Florida. With no other outlets to pursue recounts left, on Wednesday, December 9, 2000, Al Gore officially conceded the Presidential Election of 2000 to George W. Bush at 9 p.m.

Conclusion

While on the surface it appeared that the Election of 2000, especially the election in Florida, would prevent any candidate from claiming a mandate and thus forcing whoever was elected president to remain center of the political spectrum. However, due to having key elected officials, such as his brother Governor Jeb Bush and Secretary of State Katherine Harris, to ensure the election process would work in favor of Bush, network executives, such as his cousin John Ellis with Fox, who would ignore statistical data to set off other networks in making faulty decisions for a Bush victory, and judges both in Florida and the United States Supreme Court who used political loyalty and not law to determine election results, George W. Bush had confidence in a victory in Florida and was thus able to look at key victories in New Hampshire and Tennessee to make the claim that the voters were in favor of his policies and gave him a political mandate to achieve such policies.

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Works Cited

Christopher P. Banks, The Final Arbiter (New York: State University of New York Press, 2005)

Alan M. Dershowits, Supreme Injustice (Oxford: Oxford University Press, 2001)

David W. Moore, How to Steal an Election: The Inside Story of How George W. Bush’s Brother and Fox News Network Miscalled the 2000 Election and Changed the Course of History (New York: Avalon Publishing Group, Inc., 2006)

Julian M. Pleasants, Hanging Chads: The Inside Story of the 2000 Presidential Recount in Florida (New York: Palgrave MacMillian, 2004)

Richard A. Posner, Breaking the Deadlock (Princeton, Princeton University Press, 2001)

Clarke Rountree, Judging the Supreme Court (East Lansing, Michigan State University Press, 2007)

Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (New York: Random House, 2001)

Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008)

Deadlock: The Inside Story of America’s Closest Election (New York: Perseus Books Group, 2001)

U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, 2001 (Washington, D.C., GPO, 2001)

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1.) Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008), p. 4.

2.) Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008), p. 7.

3.) Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008), p. 7.

4.) Deadlock: The Inside Story of America’s Closest Election (New York: Perseus Books Group, 2001), p. 23.

5.) Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008), p. 2.

6.) Deadlock: The Inside Story of America’s Closest Election (New York: Perseus Books Group, 2001), p. 41.

7.) Deadlock: The Inside Story of America’s Closest Election (New York: Perseus Books Group, 2001), p. 42.

8.) Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008), p. 3.

9.) [9] Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008), p. 3.

10.) Deadlock: The Inside Story of America’s Closest Election (New York: Perseus Books Group, 2001), p. 46.

11.) Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy (Lawrence: University Press of Kansas, 2008), p. 3-4.

12.) David W. Moore, How to Steal an Election: The Inside Story of How George W. Bush’s Brother and Fox News Network Miscalled the 2000 Election and Changed the Course of History (New York: Avalon Publishing Group, Inc., 2006), p. 50.

13.) David W. Moore, How to Steal an Election: The Inside Story of How George W. Bush’s Brother and Fox News Network Miscalled the 2000 Election and Changed the Course of History (New York: Avalon Publishing Group, Inc., 2006), p. 51.

14.) David W. Moore, How to Steal an Election: The Inside Story of How George W. Bush’s Brother and Fox News Network Miscalled the 2000 Election and Changed the Course of History (New York: Avalon Publishing Group, Inc., 2006), p. 53.

15.) David W. Moore, How to Steal an Election: The Inside Story of How George W. Bush’s Brother and Fox News Network Miscalled the 2000 Election and Changed the Course of History (New York: Avalon Publishing Group, Inc., 2006), p. 60-70.

16.) U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, 2001 (Washington, D.C., GPO, 2001), 26.

17.) U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, 2001 (Washington, D.C., GPO, 2001), 26.

18.) U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, 2001 (Washington, D.C., GPO, 2001), 27.

19.) U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election, 2001 (Washington, D.C., GPO, 2001), 29.

20.) Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (New York: Random House, 2001), p. 27.

21.) Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (New York: Random House, 2001), p. 29.

22.) Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (New York: Random House, 2001), p. 33.

23.) Jeffrey Toobin, Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (New York: Random House, 2001), p. 236.