Erwin Chemerinsky's Critique of Supreme Court Decision in 2000 Election

Pundits predicting a close vote in the 2000 Presidential race could not have imagined just how close it would be. So close that the outcome would not be determined for more than four weeks after the November 7 election, and then only after the United States Supreme Court interceded to end a recount in Florida. That decision has been widely criticized as purely partisan and politically motivated. If accurate, the Court's decision contravenes the spirit (if not the letter) of the Court's Constitutional mandate. One of the most thoughtful critics of that decision has been law professor Erwin Chemerinsky. This paper will analyze Chemerinsky's critique of the case, which appeared in the California Bar Journal's January 2001 edition.

This litigation began almost as soon as the election ended. Democratic candidate Al Gore received more votes nationwide than Republican candidate George W. Bush and held a lead in the Electoral College, pending the results from Florida. But Bush held a slim lead there, pending a final count, and Florida's electoral votes would give him the Presidency.

The closeness of the vote prompted several counties to undertake recounts. Those recounts, however, would not be completed within the deadline set by Florida's Secretary of State, so she declared her intention to not count votes received late. Her decision, however, was overruled by the Florida Supreme Court, which ordered the state to include the recounted ballots (even the late ones) in it

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ue, however, that the Court could evaluate the standards that each Florida county would adhere to and judge whether they passed Constitutional muster. In addition, such a move would be more efficient and less costly. If the Court had let the recount proceed, the various counties would know their actions would not be overturned. If the Court ended the recount beforehand, the counties would save the expense and time of undergoing such an ordeal. Chemerinsky also argues that Bush did not have standing to challenge the recount. According to the professor, a litigant may only allege a violation of equal protection if he is injured. This principle, which is also derived from Article III of the Constitution, insures that federal courts only hear suits from litigants with a stake in the outcome, so they are not swamped by frivolous lawsuits. Here, Bush did not allege his rights had been violated, but the rights of voters because ballots would be counted differently in each county. One exception to this rule is third-party standing, where a third party may litigate the claims of another who is unable to do so. Third-party standing is only permitted when there is a close relationship between the litigant and the injured party, or

Category: Government - E