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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 its final tally. The U.S. Supreme Court then weighed in and asked the Florida Supreme Court to explain its decision. The Florida Supreme Court reaffirmed its decision, setting the stage for Bush v. Gore.

All of this took place against a backdrop of uncertainty, confusion, and occasional chaos. Protesters battled in Florida, with some trying to intimidate the other side, while charges of election fraud flew back and forth. The media discussed historical ...

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