The Supreme Court Decision of the 2000 Election
[page last modified 25 February 2001]
Table of Contents
Bush v. Gore -- Documents
These were downloaded from CNN and are
served here from my cache.
Various commentaries on the Supreme Court
(The radio commentaries require RealAudio.)
Dowd, 12/13/00 editorial in the New York Times.
on parallels with the 1876 election, on
Morning Edition, 12/13/00.
from Daniel Duff (sp?) in Florida aired on 12/15/00
criticising Morning Edition for running the Kevin Phillips commentary,
the morning after the Supreme Court decision, when (according to him) the
country needs healing.
My e-mail to Morning
Edition in response to that criticism, plus some additional comments
now that I've listened to that segment again.
The Diane Rehm Show,
Reich, Zoe Lofgren (25 minutes into the show), etc. on Talk
of the Nation, 12/13/00, reacting to the Supreme Court ruling and,
among other things, calling for people not to become cynical as a result.
Analyst Daniel Schorr on NPR's All
Things Considered, 12/13/00
Dan Gillmor: ``Maybe President-elect George W. Bush meant what he said
Wednesday about being a compassionate conservative. If so, he can
begin to heal the public wounds into which he and his operatives have poured
salt since Election Day.'' (lead paragraph in an
article in the San Jose Mercury News, 12/14/00 (which, by the way,
letters in response))
Two historians (in hour
2) discussed the election, on Talk
of the Nation, 12/14/00,
including several comments on the Supreme Court decision. [Note:
1 of that show included an apparently serious comment by a Republican
speech writer suggesting that the Florida ballots should be destroyed,
so that no one can later come up with evidence to the effect that Bush
didn't win the election.]
Edition Saturday, 12/16/00
Newshour, 12/20/00, Denver
Group segment: ``Elizabeth Farnsworth discusses the legitimacy
of Bush's presidency with a group of citizens from Denver.'' [BTW,
the transcript has a few flaws, but there is a video clip that can be viewed
from this page.]
recount of the Florida undervote, Newshour,
on the media
Nations, One President'', on the division in the U.S. over the
election and how it was decided.
Edition Sunday, 2/25/01
Totenberg on recent states' rights decisions and the conflict with
Bush v. Gore
Schorr on Justices speaking outside the court
Much background can be obtrained from NPR
and PBS archives of their news and talk shows.
Much of the background of this decision was assembled by the Red
Rock Eater news service.
The series makes very interesting reading, showing a concerted campaign
surrounding this election decision as well as a flurry of errors.
I would suggest reading in chronological order, rather than the reverse.
[At various times in that message log, it is suggested that Florida's voting
systems are exceptionally bad. However, see the
note below about Florida.]
Garrison Keillor commentary
Of course Bush v. Gore is not funny but the decision does inspire comedy.
Prarie Home Companion
Noir & the missing ballot box
candidates have Thanksgiving together
Noir waiting for word from Tallahassee
the stay, election
the decision , Guy
Noir meets Gore, National
is President Committee,
Garrison Keillor writing
back to his fans and critics [CME: IMHO, the letters
are well worth reading all by themselves. Garrison shows his writing
talent as much here as in the shows.]
Garrison's January 2001 letters page continues this discussion with some
readers, and this may go on in subsequent months, so you might want to
watch his letters index
for the unfolding discussion.
My own opinion
I must second the opinion of a friend of mine at work who was applauding
the entire recount process, the Supreme Court judgments, the actions of
the Florida legislature, etc. He considers this a code-coverage
test for the US election process. I believe we have learned a
lot as a result, but if we don't act on what we learned, it will have been
a wasted effort. For example, we learned that Votomatic machines
are unacceptable. Will we see them used ever again in a US election?
It has become clear that voting mechanisms need to be user-tested before
they are purchased. Is there an independent testing laboratory?
Will there be (or will any current one be used)? [See the section
on voting procedures, below.]
More to the point of this web page, what have we learned about the Supreme
Lawrence Tribe said on 12/12/00 that he was tempted to take the cheap
shot by saying that he was shocked, shocked to read this decision.
It is apparent to me that the US Supreme Court has shifted from the
impartial and strongly academic Court, interested in Justice, that we found
with the Earl Warren Court. Probably as a reaction to Roe v. Wade,
which was seen by some as an exercise of improper judicial activism, those
who argued against judicial activism decided instead to stack the Court
with activists on their side. The results show up in this decision
and in the fact that for years people have discussed which party will gain
power by one vote or two in the Supreme Court.
It would be nice to think that with this fresh evidence of partisan
Court behavior, we could make a special effort to restore the Court to
impartial concern for Justice. However, it is unlikely that that
will be possible. The bitter anger over Roe v. Wade is still fresh
in the minds of many people on the right, and now this recent abuse of
judicial authority has angered people on the left. The inclination
will be to treat the Supreme Court even more like the rag that you tie
in the middle of a rope in order to play tug of war. Instead of offering
a fresh insight on our serious problems and divisions from a point of view
neither side in the debate would have stopped to consider, the Court is
just one more expression of the same two opposing viewpoints, and in that
sense runs the risk of being a third house of Congress -- perhaps a House
did an article on voting systems that showed Florida to be the
rule rather than the exception, with voting problems nationwide.
The conclusion is that our election processes work only if elections are
not close, since the errors in the system are so rampant that the official
ballot count is probably less accurate than a scientifically performed
Prof. Greg Adams, ``A Note on the
Voting Irregularities in Palm Beach, FL''
Rebecca Mercuri, ``Electronic
Voting'', a web page including many references to voting systems, not
just electronic ones
A June 2000 newsletter
from a company in the voting system business analyzed voting systems in
various states. Starting on page 10, they discuss Florida.
In view of what we have learned during this election about Florida's systems,
the following comment from page 10 bodes ill for our country as a whole:``Vendors
often obtain Florida certification, then sell their systems in other states.
Florida is considered the gold standard of state voting system certifications.
Florida voting system standards were developed by the same consultant who
assisted in the development of FEC voting standards.''
Carter commented on Florida's election procedures on Morning
The American Society for Quality summarized the problem
and action needed in a news
recount of the Florida undervote, Newshour,
Diane Rehm show of
7/20/2001 on NYTimes investigation of Fla. absentee ballots
It is my opinion that the media should recount the
entire vote -- under and over, but also the vote the counting machines
accepted. If a sample were taken of real ballots and several machine
recounts were done, to show whether or not the same result came out of
each recount, and a hand count were done to show whether that matched the
machine count, then we would have valuable data.
Before Palm Beach and other counties scrap their
voting machines (which are probably worn through much use), it would be
great if the news media could use those machines and left-over blank ballots
to run a controlled experiment -- giving people a vote to register (not
just President, but all choices) at random, then having them write that
intended vote on the ballot after it was punched. We could then determine
how many mistakes were made and what kind of mistakes they were.
This would probably have to be a large test, in order to catch all the
errors, but it would be an interesting experiment.
report looked at overvotes in one county where there was a selection
for president (filling in an oval with pencil) and a write-in as well,
but the write-in named the same candidate as the other "vote". So,
the machine believed it was an overvote when it wasn't. It was a
mistake on the part of the voter. Publicity of this mistake with
picture of the spoiled ballot will do more to educate the voters than
any amount of explanatory text on the wall of the voting booth.
The Florida felon list
One of my pet topics is name collision. Human
names are not valid identifiers, except in small communities. We
grow up in small communities (family, church, school), so our early lessons
are that human names are perfectly good identifiers. By age 1 or
certainly 2 we know that that person over there is "Mommy" and when we
use that name, only that person over there answers to it. When we
get old enough to find out that there are other people who respond to the
name "Mommy", we take that as weirdness and the exception to the rule.
At about that time, we start to learn longer names. In our small
communities, those longer names don't collide so we hold on to our rule.
The rule that we retain is that names work as identifiers. We keep
applying that rule, in spite of the fact that it is not true except in
small communities and we see every day that it is not true. It looks
as if Florida fell into that trap as well. Their voter lists were
purged of convicted felons, but apparently the process of purging involved
matching human names and, worse, doing a kind of SOUNDEX or abbreviation
matching, so that the name collisions were even more probable.
One can not make security decisions based on this faulty assumption from
There is an
investigation of alleged voting discrimination because of this process,
that was also reported
on NPR. in this
This story was also
covered by the Guardian.
There is also a TV
spot by the BBC on the web, on this problem.
from readers of this page
Some quotes from the four dissenting Justices
Of course, one should really read the whole decision.
``In the interest of finality, however, the majority effectively orders
the disenfranchisement of an unknown number of voters whose ballots reveal
their intent--and are therefore legal votes under state law--but were for
some reason rejected by ballot-counting machines.''
``What must underlie petitioners' entire federal assault on the Florida
election procedures is an unstated lack of confidence in the impartiality
and capacity of the state judges who would make the critical decisions
if the vote count were to proceed. Otherwise, their position is wholly
without merit. The endorsement of that position by the majority of this
Court can only lend credence to the most cynical appraisal of the work
of judges throughout the land. It is confidence in the men and women who
administer the judicial system that is the true backbone of the rule of
law. Time will one day heal the wound to that confidence that will be inflicted
by today's decision. One thing, however, is certain. Although we may never
know with complete certainty the identity of the winner of this year's
Presidential election, the identity of the loser is perfectly clear. It
is the Nation's confidence in the judge as an impartial guardian of the
rule of law.
``I respectfully dissent.''
``The Court should not have reviewed either Bush v. Palm Beach County Canvassing
Bd., ante, p. ____ (per curiam), or this case, and should not have stopped
Florida's attempt to recount all undervote ballots, see ante at ___, by
issuing a stay of the Florida Supreme Court's orders during the period
of this review [...].''
``To recount these manually would be a tall order, but before this Court
stayed the effort to do that the courts of Florida were ready to do their
best to get that job done. There is no justification for denying the State
the opportunity to try to count all disputed ballots now.
``I respectfully dissent.''
``In sum, the Court's conclusion that a constitutionally adequate recount
is impractical is a prophecy the Court's own judgment will not allow to
be tested. Such an untested prophecy should not decide the Presidency of
the United States.
``The Court was wrong to take this case. It was wrong to grant a stay.
It should now vacate that stay and permit the Florida Supreme Court to
decide whether the recount should resume.''
``By halting the manual recount, and thus ensuring that the uncounted
legal votes will not be counted under any standard, this Court crafts a
remedy out of proportion to the asserted harm. And that remedy harms the
very fairness interests the Court is attempting to protect.''
``And, above all, in this highly politicized matter, the appearance
of a split decision runs the risk of undermining the public's confidence
in the Court itself. That confidence is a public treasure. It has been
built slowly over many years, some of which were marked by a Civil War
and the tragedy of segregation. It is a vitally necessary ingredient of
any successful effort to protect basic liberty and, indeed, the rule of
law itself. We run no risk of returning to the days when a President (responding
to this Court's efforts to protect the Cherokee Indians) might have said,
"John Marshall has made his decision; now let him enforce it!" Loth, Chief
Justice John Marshall and The Growth of the American Republic 365 (1948).
But we do risk a self-inflicted wound -- a wound that may harm not just
the Court, but the Nation.
``I fear that in order to bring this agonizingly long election process
to a definitive conclusion, we have not adequately attended to that necessary
"check upon our own exercise of power," "our own sense of self-restraint."
United States v. Butler, 297 U. S. 1, 79 (1936) (Stone, J., dissenting).
Justice Brandeis once said of the Court, "The most important thing we do
is not doing." Bickel, supra, at 71. What it does today, the Court should
have left undone. I would repair the damage done as best we now can, by
permitting the Florida recount to continue under uniform standards.
``I respectfully dissent.''
Code-coverage test: a part of the software
development process in which a computer program is tested in such a way
(usually by giving it very unusual inputs that one never expects to see
in real life) to make sure that every line of code is executed. This
is due to the observation that when a program is just tested by normal,
expected inputs, only parts of it are exercised. The bugs that are
found that way can be eliminated from the exercised portion, but there
may be bugs remaining in the unexercised code. Therefore, if you
want to have a program that is bug free, you need to be sure to exercise
all of it that any conceivable input might cause to be executed.
[If you discover portions that no input can cause to be executed, you just
excise those portions.]
Carl M. Ellison; firstname.lastname@example.org