The Florida election law was clearly incomplete, and into the gaps jumped the political strategy of both the Bush and Gore camps, and also the politically motivated discretion of public officials charged with important but incompletely regulated functions under the law. Gore could challenge the vote tallies precisely in the places where he was most likely to pick up votes while ignoring counties that might have had more votes for Bush. But it was, apparently, not only a perfectly legal challenge under the statute as written but the only sort of legal challenge envisioned in the law. Additionally, in the absence of clear and specific standards for counting machine-punched votes, Gore could argue for those standards most favorable to himself.

Of course it wasn’t just Gore who was using the law to fit his own strategic purposes. Though the Bush team branded the four-county manual recounts as selective and unfair because they would leave legal votes for him uncounted elsewhere in the state, the power to fix the selectivity by filing challenges in the other counties was clearly in Bush’s hand. But of course he did not want to use that power because it might not have benefited him politically. What did benefit Bush politically was dragging every legal challenge on every point out as long as possible. The uncertainty of the law and the repeated legal challenges that were necessary to sort out what the law was clearly benefited the person who held the advantage of the status quo.

No clear standards

Republican Katherine Harris, charged with supervising the elections, had to make her decisions under a statute that omitted any clear standards about what she might use as a legitimate basis for rejecting late returns. On a cynical view, she took this as blanket permission to reject anything that might operate against the candidate she preferred. In addition, without clear standards, the various county canvassing boards could justify whatever it was that they wanted to do — count or not count, omit dimpled chads or not, as the case may be.

Badly drafted statutes do more than make the situations they regulate unclear; a statue as badly drafted as this one invites abuse. The non-partisan character of the law is assured primarily because the framework is settled before a particular dispute has arisen. The Florida statute did not make the election more predictable, orderly and fair. In the end, it prevented the predictable, orderly and fair resolution of the election.

Voters’ vs. candidates’ rights

… The rights at stake were not the rights of the candidates, but instead the rights of the voters. And what is the substance of those rights? The substance is quite close to what the per curiam decision [of the Supreme Court] in Bush v. Gore said it was: the right to vote is a fundamental right that, precisely because it is fundamental, is subject to equal protection principles. That sort of analysis could have produced an early constitutional framework along the lines of “count all the votes, but count them equally.” Gore would have gotten his request to count the votes, but Bush would have gotten the guarantees that such a count would not be weighted in favor of those voters from whom Gore thought he could extract the most support.

“Count all of the votes using the same standard” would have meant supplementing Florida’s defective statute with more stabilizing constitutional principles rather than literally construing the statute and compounding the uncertainty.

In the end, what happened was that the crucial contest in Election 2000 was in practice decided according to no discernible law at all.

Kim Lane Scheppele, a professor of law specializing in constitutional issues, presented the original essay upon which this was based in a workshop on Constitutional Law and Constitutional Theory at the Harvard Law School, February 16, 2001. The full essay will appear in the University of Pennsylvania Law Review, May 2001.

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