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

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People have been quick to dismiss this book as right wing apologia written by a sneaky Bush supporter under the guise of analysis. However, those same people see Dershowitz's "Supreme Injustice" as an objective, non-partisan account? Dershowitz is a defense lawyer. What do they use? Rhetoric. Posner is a judge. What do they use? REASON.

As one who did not voter for Bush, Gore or Nader, I can say that this is the most intellegent, thorough and fair accounts given of the 2000 fiasco. The one thing it's NOT is the most readable. If you don't want numbers, textual explanations of obscure state clauses and discourses on democratic theory, this one will be a doozy. If you DO want a beach read, I direct you to Bugliosi. Also, if it's conservative apologia you're after, do yourself a favor and just watch Fox News.

Posner is not a pundit, he is a judge. He does not defend Katherine Harris's decision not to accept late recounts as a 'conservative,' he does so because the law gave her discretion. He refrains from bashing the supreme court decision, not as a conservative (he correctly disagrees with their 'equal protection' reasoning), he does so as a judge realizing they did the best they could in the time they had.

The key thing to take from this book is that he doesn't slam anyone (except for some overzeolous pundits). Second guessing motive is a slippery slope and he admirably refrains from left or right bashing. What we are left with is facts. As mentioned earlier, Dershowitz, as a defense lawyer, has proven one of the most effective rhetoricists on the planet. My guess is that a major reason this book didn't sell so well is because the rhetoric is absent.

The major flaw is that if Posner wnated to write a book for the lay person, he failed. This book, if you've no coffee around will make you dizzy. My reccomendation, read Bugliosi for a warm-up, Dershowitz for a light jog, and these will have worked you up to Posner. This is serious business!!

We are a little over a year away from the 2004 Presidential election and you can bet that the 2000 election will cast its shadow over the electorate. For that reason, Breaking the Deadlock remains a very timely read. Going into 2004, it's worth bearing in mind the book's central point: that the question of who won the popular vote in Florida was not a question of fact, but of law. "If the recount was unlawful, the winner of the recount would not be the winner of the election even if he was in some sense the more popular candidate." At the same time,however, Judge Posner acknowledges that Courts, including the Supreme Court, that interpret the law, and were interpreting Florida election, and U.S. Constitutional law in 2000, are themselves exercising a level of discretion that invariably calls into play extra-legal factors. The "people" shall be judge, as the sagacious philosopher Mr. Locke asserted, but who then are the people? Who counts? This text confronts that question. Not all of the material covered in this book was new to me. Still, I learned a significant amount about the 2000 election, and about the electoral process in general. Teachers, students and voters in general will find in Breaking the Deadlock a superb survey of a critical facet of U.S. political life.

In a masterpiece of understatement, Richard A. Posner was described in a 2001 New Yorker profile as a thorn in the side of left and right alike. Well, I suspect his conclusion that the Supreme Court was right in stopping the hand counts, but it's reasoning wasn't will enrage the usual inside the Beltway talking heads.

Having trudged through a small mountain of incresingly hysterical, partisan 'analysis' of Bush v. Gore, I finished this book feeling like someone had opened a window and let out the hot gas.

Posner brings the same clear-eyed, unsentimental and carefully argued perspective as 'An Affair of State', his equally controversial analysis of the Clinton impeachment.

This book won't appeal to the usual partisan crowd, who only read to confirm their prejudices, and isn't designed to be an easy beach read -- so don't look for this at the top of the bestseller list. But this thoughtful and highly intelligent book should be. About the only book I've read on Bush v. Gore books that cast more light than partisan heat.

Judge Richard Posner performs an invaluable service by cutting through the Cherminsky and Sunstein left-wing legal clutter surrounding Florida Election 2000. Judge Posner delivers clear legal analysis that is still accessible to the educated layperson. His overall conclusions: the Florida vote was fair, the Florida supreme court was partisan, and the U.S. Supreme Court was as well, although it had practical reasons for being so. Specific points include:

* First and foremost, Posner correctly places most of the blame for the fiasco where it's most deserving, on the Florida supreme court. To those who complain of judicial politicization of the U.S. Supreme Court, just remember where it began: with seven Democratic Party hacks in robes in Tallahassee. Posner slams the Palm Beach County Canvassing Board v. Harris decision (both the original and on remand) several times. Highlights include:

>>> The Florida court used inexcusably poor reasoning and logic in saying that a voter's error in completing a punch card ballot is a form of "error in vote tabulation" (pp 95, 116, 122). This reasoning is a violation not just of the plain meaning of F.S. 102.166(5) (2000), but also a violation of common sense. As Posner notes, no allegation was ever made of an error in a punch card reader (pp 62, 86).

>>> The court also created a false dilemma by saying that the statute allowing a protest for seven days after the election conflicted with the overall seven-day deadline to certify returns (p 105). Posner correctly points out that (a) if a candidate were so stupid as to wait for seven days before protesting that "the losing candidate has himself to blame for not acting faster," (b) in any event, such a delay in protest did not in fact occur with Gore so the court never should have addressed the issue in the first place and (c) a recount to review an error in the vote tabulation machines (as opposed to a review of the vote itself) could be completed within the time frame set forth in F.S. 102.166 (2000), so the court only found this dilemma by misinterpreting what an "error in the vote tabulation" was in the first place. See F.S. 102.166(3)(a) (2000).

>>> The court used a vague state constitutional declaration of "power is inherent to the people" (pp 100, 104-107) to ignore specific statutory language directing the Secretary of State to make determinations regarding election matters as set forth in F.S. 97.012 (2000), in order to give Gore more time than he was authorized under the Florida statute. By doing so, the court was not only usurping legislative power by changing the plain words of the statute, it was also probably violating Art. II Sec. 2 cl. 2 of the Constitution (pp 127, 153, 155).

>>> The court ignored elemental principles of statutory construction when examining F.S. 102.112 (2000) (the Department of State *may* ignore untimely returns) and F.S. 102.111 (2000) (the DOS *shall* ignore untimely returns). It is a common understanding in the legal field that when two statutes have only a potential conflict, a court is to interpret them so that they do not. In this case, the Secretary of State acted in a way that created no conflict (she ignored late returns) therefore there was no need to claim a contradiction, then leverage that supposed contradiction into giving Gore 12 more days.

>>> Recapping, Posner points out the obvious: "The U.S. Supreme Court was criticized for intervening when it knew what effect its intervention would have on the outcome of the election. But it would not have intervened had the same principle discouraged the Florida supreme court from intervening when it knew that the effect of its intervention could only be to increase the likelihood that Gore would become president" (p 160).

Other points Posner brings out include:

* The hypocrisy of Democrats proclaiming "every vote must count" while simultaneously (a) trying to disenfranchise Seminole and Martin County voters who did not have voter ID numbers due to a computer glitch (pp 98-99), (b) requesting a recount only in four counties (why not all? Shouldn't every vote count?) and (c) requesting a recount of only undervotes, not overvotes (does every vote count or not?).

* The standard to review voters' intent on punch cards that was employed by the Democrat-run Broward Canvassing Board was indefensible as a matter of law and common sense (pp 58-59, 124). The standard, which consisted of a dimpled chad, a mark or even an indentation next to the chad, supposedly was good enough to determine voter intent. Posner points out that indentations could arise from the card being passed through the machine or by being bent during handling, and that a dimpled chad could arise from voters starting to vote but changing their minds after realizing that they were voting for the wrong person. The statutory standard, even after the Florida supreme court butchered the statute, is whether there is "a clear indication of the intent of the voter." F.S. 101.5614(5) (2000). How can anyone with a straight face say a mark or indentation alongside a chad, or even a dimpled chad, is a "clear indication"? Let's not be silly. The sheer outrageousness of such a biased, subjective and manipulable standard is, in Posner's opinion, why David Boies never suggested it as a standard in his legal maneuvering (p 195).

On this point Posner alludes to something (p 131) but is too diplomatic to say it explicitly: the Broward Canvassing Board could very well have altered punch cards under its standard to make a card look like a Gore vote. For example, a Democrat operative handling the punch card could press his fingernail on the chad or alongside it to make it look like a stylus had marked it. This could be done very subtly and even someone nearby would not be able to observe the fraud. Would you put it past the Democratic operatives to do something like that? I wouldn't.

* Bush v. Gore should have been decided on Art. II Sec. 1 cl. 2 grounds (i.e., the specific grant of authority in the Constitution that directs state legislatures to appoint its electors), and not equal protection grounds that ultimately decided the case.

* The U.S. Supreme Court voted 7-2, not 5-4, that the Florida supreme court's mandate for a standardless recount was unconstitutional (pp 127, 216). The Supreme Court only split 5-4 on whether enough time existed to have the Florida supreme court order a recount conforming to a constitutional standard (p 136).

* The U.S. Supreme Court did not command Congress to count Florida's electoral votes. Congress, had it wished, could have refused to count them (p 185). The Florida state legislature could have determined not to seat them. The U.S. Supreme Court did not select a president. Electors did and Congress let them.

* Posner calls out liberal law professors and constitutional scholars on their inconsistency on judicial activism. "There are respectable schools of jurisprudence according to which Bush v. Gore could be shown to be unprincipled, even usurpative. But can liberals enroll in any of these schools without repudiating much of the constitutional law forged by the Supreme Court in the Warren and Burger eras? I don't think so" (p 189).

Side note 1. To a certain extent this book, and the Bush v. Gore decision, have been buttressed and confirmed by later events. First, a consortium of mainstream media newspapers, hardly a group favorable to Bush, concluded after tabulating Florida ballots over a period of months that had Gore gotten his way legally in Palm Beach v. Harris, Bush would still have won (NYT, Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote, Nov. 12, 2001). Second, the disenfranchisement of Michigan and Florida voters by the Democratic National Committee in their 2008 primaries shows that the concern Democrats had in 2000 about disenfranchisement was, how to put it -- "tactical." (That and Nevada Democratic caucus rules that allow the candidate with fewer votes to actually receive more delegates -- now where have we heard about that problem before? Hmmm.) Third, and perhaps most importantly, Bush won reelection in 2004 with 51% of the popular vote -- a slim mandate but a mandate nonetheless. If the American voters had truly been as outraged at a "stolen" election as the left-wing talking heads proclaimed them to be, then we'd have a President Kerry right now.

Side note 2. Posner also puts forward a decent case for legal pragmatism in this book. I've read another of his books (An Affair of State) and a legal opinion (ethnicity of D.I.s at youth boot camps) where he flogs the pragmatic idea. I was suspicious of legal pragmatism. Here's an example why: if a Taliban says girls shouldn't go to school at all and a secular progressive says that they should go to school at least through the twelfth grade, then a pragmatist would say "let's split the difference and educate them through the six grade." Mr. Posner disabuses me of that notion of pragmatism by pointing out that it should only be employed when opposing merits are more or less equal. Well OK then.

Side note 3. I would like to point out one thing that Posner missed in all this, which goes with the butterfly ballot issue to a certain extent. That is that the MSM called Florida for Gore at 7:00 p.m. EST and didn't put it back into the "too close to call" category for close to an hour. When the MSM pulled out all the stops and called Florida for their boy, the heavily-Republican Florida Panhandle voters (6:00 p.m. CST) who heard this were dissuaded from voting, thinking that Bush had already lost. So while it's probably true that more people in Florida on Nov. 7, 2000 *attempted* to vote for Gore (because of the butterfly ballot), it's also probably true that more Floridians woke up that morning *intending* to vote for Bush.

Unlike every other book published to date on the 2000 election, Richard Posner doesn't write for a partisan faction. Here is the best treatment yet of the Florida debacle, conceding that in all likelihood a majority of Floridians wanted Gore to be President, and that the greatest obstacle placed in their way to realizing that end, that muddle of a butterfly ballot, was placed there by unwitting Democrats. Shorn of the arm-chair second-guessing of judges' motives typical of the post-election talking heads, Posner focuses on the law, its precise language and reasonable interpretation, and the predictable consequences of varied courses of actions. That his treatment will not satisfy the partisan goes without saying; that it will likely prove the best, pragmatic explanation of what in fact happened, why, and what ought to be done about it seems certain.

Judge Posner has written a concise but complete volume on "the 36 days" at the end of the last presidential campaign. The book is almost always understandable even by those who have little background in constitutional law.

I recommend this book highly even though by the end of my reading I concluded that Judge Posner only established anew that he is one of the cleverest fellows whose books I have been privileged to read and that even he could not make any sense of the appellate hijinks of the U. S. Supreme Court or the Florida Supreme Court.

Assuming that they read books more adroitly than directions or ballots, former Vice President Gore's supporters will want to pore over this book to discover how poorly reasoned and defended the ultimate decision of the U. S. Supreme Court was. Although Posner pronounces the RESULT to be the best way out of a crisis, such result-oriented reasoning has for decades been exactly what law students were supposed to be trained NOT to engage in. Readers who are not familiar with Posner's ideas about judicial pragmatism will not quite appreciate the originality and brilliance of Posner's solutions to a treacherous case, but they should be impressed at his candor and insight.

As flawed as I find it to be, Posner's defense of the RESULT is far more persuasive than anything that the justices penned. Posner dismisses seven justices' alleged reliance on the equal protection argument. He fails to show -- as, for example, Vincent Bugliosi does in his over-the-top book on the same subject -- that then-Governor Bush had no standing to assert the equal protection rights or interests of any voters, but most readers will not know about standing and will not care.

Instead, Posner makes the less technical but compelling point that any violation of equal protection that the justice might have found or imagined in manual recount would have been present in the variety of modes of counting ballots both in Florida and in every other state in every other election. On this issue Posner sold me. Other than that the justices' argument makes no sense to anyone who can read and understand it, the equal protection argument was a terrific effort that might barely have passed in a constitutional law course if the professor was groggy while reading the exam. Well done, Supremes!

Supporters of President Bush will appreciate Posner's demolition of the sloppy work of the Florida Supreme Court. Although Posner indulges in strained word play with regard to "tabulation" as it is used in Florida's statutes, I found his arguments in support of the Florida Secretary of State's discretion to be terrific. I believe Posner that Florida law clearly authorized Ms. Harris to steal the election. Hence, she stole it fair and square. While the Florida Supreme Court may have had democratic-republican mores and ideals on its side, it did not come up with a good reason to have set aside Ms. Harris's reasonable determination.

Unfortunately, Mr. Posner's main point -- that the U. S. Supreme Court had to break the deadlock to avoid a constitutional crisis -- justifies expediency to save the republic from the processes stated in the Supreme Law of the Land. Such a victory through expedience may be worse than any crises or defeats that Posner dreams up. [He is a clever guy! Some of his imaginings are beauts!]

If one may disregard or elude the law to save the republic from processes that the law requires, then what did the Florida Supreme Court do that the Supremes did not end up doing? If one follows Posner's logic, the lawless Florida Supremes were not wrong because they were lawless [and Posner convinces me that they were]; they were wrong because their lawlessness was not the final lawlessness. The U. S. Supreme Court was correct in its lawlessness because there was no appeal from that Court. Does Posner's result-oriented approach work best when litigants have nowhere else to go?

In my reading, then, Posner's attack on the Florida court for its lawless escape from a crisis provides ample reason to attack the U. S. court for its lawless escape. If I am correct, Posner's brilliant device at argument's end undermines his brilliant attack on the Florida Supreme Court in the argument's middle. Posner has destroyed a village in order to save it, if it takes a village to apply the law.

I ended the book unpersuaded, then, of Posner's major point, but deeply impressed by his critiques of both courts.

Moreover, I found that Posner had made the best possible defense of the Supreme Court of the United States. I had suspected that one could not persuasively defend what Chief Justice Rehnquist and the others had done. Posner has demonstrated that even one of the most erudite and skilled jurists in the United States cannot save the Court from charges of partisanship, ideology, and lawlessness.

Judge Posner has distinguished his reputation even as he has extinguished the reputations of the Florida and U. S. Supreme Courts.

Unlike most of Posner's other writing (his judicial opinions included), this book lacks the verve and wit that marks his style. What is here is a thorough examination of the Bush-Gore contretemps, in which the author concludes, quite persuasively, that almost everybody was right. Yes, the Democrats had a point -- Gore might have gotten more votes, had they all been counted. But yes, Harris was within her discretion to stop the vote-counting. And yes, the Supreme Court majority made the right decision to close the whole show.

While his conclusions are interesting, the analysis makes for tedious reading as Posner drills down to the most mundane details of the vote-counting. It's almost like reading a political science text and times, and that's not a good thing if you are a general reader (Posner's target audience, I believe).

Judges, as a class of humanity, have always seemed to me to embody the worst aspects of lawyer, priest, and politician, all rolled into one self-important package. One of the few judges who have ever seemed worth much is Richard A. Posner, author of this fine and devastating book. Millions of gallons of ink have been spilled over the 2000 election, but Judge Posner may be the only author who brings both a dispassionate eye and an almost unmatched legal mind to the vexed constitutional and legal issues involved.

The result, as a whole, doesn't do much for the reputation of Judge Posner's legal brethren, especially the members of the appropriately nicknamed SCOFLA, or Supreme Court of Florida. As Judge Posner deconstructs the logic -- for lack of a better term -- employed by the Court in Bush v. Gore, you'll be left wondering what in the world they were thinking.

If this book makes anything clear, it's that the Left is correct to call the U.S. Constitution a 'living document.' It lives in the same way the Frankenstein monster 'lived,' as a monster formed by two centuries -- or at the minimum 70 years -- of 'progressive' jurisprudence. The crowning glory of this, as Judge Posner makes clear, may well be the performance turned in by SCOFLA in 2000.

This book wrestles with important issues, but it is well written and extremely readable. The final two chapters -- 'Critiquing the Participants' and 'Consequences and Reforms' -- lift this book beyond the many 'instant histories' we've seen of the 2000 election and make it something well worth studying by people on every (or no) side of the question. The legend of the 'stolen election' has already entered the Left's mythology, up there with 'Reagan's massive budget cuts' and 'impeachment was all about sex.' It would be nice if this excellent book could help us get beyond the partisan grousing so we could address more important issues. But I don't think it's gonna happen.

Judge Posner's book is unsatisfying. In his introduction he points out that he is writing for a larger audience, not just for the law crowd. That was the intention but the result is a book neither fish nor fowl.

While chapter 1 is very interesting with his observation about the nature of representative democracy, from there on the book declines.

Chapter 2 tries to establish facts about the Florida vote and therefore gets lost in statistical limbo. In chapter 3 he mentions the most important decisions by the courts but this is more a comment not an analysis.

In chapter 4 he judges the performance of the players: the courts, the attorneys and the law professors in the media. Finally in chapter 5 he writes about consequences and proposes some reforms while at the same time admitting that they are politically unrealistic.

So what was this book about? After all he observes correctly in chapter 1 that elections are political and continues to recognize that the practice of constitutional law is as well. While I agree with most of his opinions about the players in the Florida election farce that is not why I bought this book.

I was expecting a thorough analysis of the legal questions involved. Well, I'll have to look out for another book.

Those on the left have Dershowitz. Those on the right have Sammon. Those who want to understand the issues and not just to justify their anger have Posner, a guy who puts it all in perspective. His insights expose the other "experts" for the ideologues they are.