INDEX
abortion rights, possible abolishment of, 91. See also Roe v. Wade
absentee ballots: Bush suit seeking recountof rejected overseas ballots, 33, 34, 39; in France, [316n53]; Harris declarationon counting of, 25–26, 115; inconsistencies in Florida election laws on, 123; in Martin County, 36, 38–39, 40, 115; ofmilitary personnel, 31, 32, 34; in Palm Beach County, 58–59, 61, 62; in Seminole County, 27, 30, 32, 34, 38–39, 40, 115
Accuvote voting devices: concentrated in counties voting for Bush, 49; inaccuracy rate with, 92; undervote/overvote rates with, 48, [65n24], 113. See also electronic voting
Act of 1869, 193
Adams, Greg, analysis of butterfly ballot voting results, 52, 56, [64nn3–5]
Adams, John Quincy, 376–77
Adkins v. Children's Hospital, 197–98
African Americans: claims of being turned away from polls, 26; concentrated incounties using punch-card voting system, 113; confusion in using butterflyballots, 51, 52–53, 55
Ahmann, John, 107, [110n14]
Allende, Salvador, 385
Alwan, Layth, analysis of butterfly ballot voting results, [64n3] amendments, constitutional: proposed, to abolish Electoral College, 96, 97–98, 104, 139–40, [330n2], 348; Seventeenth Amendment, 98, 111, 392–93; Twelfth Amendment, 140, 162–63, 348, 372–73, 376; Twentieth Amendment, 369;Twenty-third Amendment, 372, 391. See also Equal Protection Clause of Fourteenth Amendment
American Sugar Refining Co. v. Steamship G. R. Booth, 195
Anderson, John, 354, 364–65
Anderson, Patrick, analysis of butterfly ballot voting results, [64n6]
Armey, Dick, 32
Article II of U.S. Constitution: as legalfoundation of Bush v. Gore majorityopinion, 167, 170–71, [186n106], 240–41; state legislatures given power to appointelectors, 111, 134–35, 137, 138, [142n4], 167, [186n113]
Ashcroft, John, 108
automatic plan, 20, 355–56, 358
Automatic Succession Act of 1947, 369
Badey, George, 59
Baker, James A. III: accuses Florida Supreme Court of changing rules, 32;background on, 22; claims Bush is Florida winner, 26; named head of Bush's Florida legal team, 25
Balladur, Edouard, 303
ballot boxes, stuffing of, 159–60, [183n69]
ballots: approved by both parties, 251; assessment of validity of, in France, 308–10,
― 402 ―[316nn59], [61]; secret, in France, 296, [312n8]; uniform, 286–87, 305, 319. See also absentee ballots; butterfly ballotsBlack, Hugo L., 198–99
Blackmun, Harry A., 202, 203
Boies, David: announces Gore will challenge Nassau County results, 34; argues for Gore before U.S. Supreme Court, 40; background on, 22; joins Gore legal team, 29; on using different voting machinery as equal protection violation, 92
Brady, Henry E., analysis of butterfly ballot voting results, 53, 56, 61, 62, [65n20]
Brandeis, Louis D., 198
Brennan, William J. Jr., [211n52]
Brewer, David J., 196
Breyer, Stephen G.: advocated remanding case to state court, 90, 173–77, [187n114]; agreed that "voter intent" standard violated equal protection, 91, [98n3], 102, 161, [183n72]; background on, 24; compromise sought by, 328; on Congress as responsible for correcting constitutional violations by Florida Supreme Court, 162–63, 164–65, [184n84]; dissent by, while agreeing with majority, 189, 206–7; on Florida Supreme Court's reluctance to stipulate more concrete counting standards, [99n6]; on impact of politically divisive decision, 93, 329; integrity of, in finding of equal protection violation, 130; on lack of reason for recount of overvotes, [182n53]; liberal label applied to, 89, 101; opinion in Willowbrook v. Olech, 105; statement (fictional) of opinion in Bush v. Gore, 216–18, 222–24
Broward County: adopts broader standard for counting votes with chads, 31; Bush campaign objection to undervote count in, 47–48; certification deadline not applicable to, 28; claims that African Americans turned away from polls in, 26; manual recount in, 26, 27, 29, 30, 33, 34, [330n3]; rate of "recovery" of Democratic votes in, 78; Republican demonstrators in, 34
Brown v. Board of Education:as controversial yet admired decision, 163; per curiam in, 200, [210n37]; real problem addressed by, 169; unanimous decision in, 233
Buchanan, Pat: Bush/Buchanan statements on high vote for, 26; Palm Beach County's high vote for, 25, 52–55, 58–59, 61–62, [64nn3–9], 73; votes mistakenly cast for, 51, 52–53, 54, 114, 287
Buckley v. Valeo, per curiam in, 203, 204, [210n49]
Burger, Warren E., 202, 204
Bush, George H. W., Circuit Court and Supreme Court justices appointed by, 24
Bush, George W.: appointments of conservatives by, 108; background on, 22; certified winner of Florida election, 34, 124; constitutional coup resulting in presidency of, 227–35; declares victory in election, 35, 40; disparate views of, one hundred days into office, 334–35, 336; election-eve telephone conversations with Gore, 24–25; rejects Gore's conditions for ending further legal challenges, 29; transition planning by, 26, 32, 35, 36; U.S. Supreme Court justices favored by, 120, 138
Bush, Jeb: appointed Florida Supreme Court justice, 23, 231; assures George W. he has won Florida, 25; background on, 23; important decisions overseen by, 95; on need for review of Florida election laws, 29; partisanship of, 114–15; supports Harris's enforcement of certification deadline, 29; supports special session by Florida legislature to name electors, 36, 231
Bush's team, 22; appeal to overturn Middlebrooks's decision allowing recounts, 29, 38; files suit to stop recounts demanded by Gore, 149; lawsuit seeking injunction against manual recounts, 19, 27, 28, 29, 30, 149, 323–25; objection to different standards for undervote count in Broward and Palm Beach Counties, 47–48; petitions U.S. Supreme Court to overturn Florida Supreme Court's ruling allowing manual recounts, 32, 33, 34, 37, 39–40, 151–53; suit seeking recount of rejected overseas ballots, 33, 34, 39
Bush v. Gore: American public's acceptance of yet disagreement with decision, 262–63; constitutional crisis avoided by decision,
― 403 ―259, 263–65, [273n32], 328; damage to judicial system of decision, 93, 111, 145–46, 261–62, [273n26], 289–91; Italian view of, 19, 322–31; parliamentary-like behavior of Supreme Court in, 326–29; per curiams in, 10–11, 13–14, [178n2], 189–90, 204–6; principle of nationhood evident in, 245, 247; speed of decision making in, 148, [179n4], 233; statements (fictional) of positions of U.S. Supreme Court justices, 212–24; unlikelihood of, in Germany, 18–19, 318–19. See also U.S. Supreme CourtBush v. Gore dissenting opinion, 326–27; on equal protection objections to recount, 161, [183nn72–73], [184n74]; Stevens's comments on damage to public's faith in judges, 93, 111, 145–46, [273n26]
Bush v. Gore majority opinion, 327; Article II as legal foundation of, 167, 170–71, [186n106], 240–41; constitutional crisis averted by, 263–65, [273n32], 328; criticism of, as political, 104, 146–47, 178, 260–62, [273n24], 326–29; federalism objection to, 173, [186n109]; inconsistent with Court's position on states' rights, 126, 173, 238; lack of firm belief in equal protection argument, 260–61, [272n20]; lack of legal basis for, 234–35, 260, 262, [272n20], [273n29]; as leading to unnecessary litigation challenging election practices, 168–70, [186n99]; legal objections/alternatives to equal protection analysis of, 162–77; suspiciously narrowing statement of holding of, 171–72; variable standards as violation of equal protection argument, 238–40
Bush votes: concentrated in precincts using Accuvote voting systems, 49; gained from counting absentee ballots, [179n17]; gained from counting absentee ballots with corrected applications, 115; total national, 41–43, 229
Bush v. Palm Beach County Canvassing Board ("Bush I"), 37, [99n6], 150–53, [180nn25–26], 204
butterfly ballots, 50–66; analyses of, by political scientists, 52–55, 56–59, 61–62, [64nn3–9], [65nn13–16]; design of, 51, 59–60, [63n1]; focus on manual recount as surrogate for remedying problem with, 72–74; hearing on use of, 60–62; high vote for Buchanan by voters using, 25, 52–55, 58–59, 61–62, [64nn3–9], 73; overvotes on, 51, 53, 54, 56–58, 62, [64n8], [65nn13–15]; possible effect on Gore vote total, 51, 53–54, 56, 62, [64n2], [64n8]; revote demanded due to voter confusion in using, 25, 32, 37, 60–63, 251; voter confusion in using, 25, 51, 57–58, 61, [63nn1–2], [65n16]
Butterworth, Robert A.: advisory opinion that Palm Beach county recount is legal, 28; background on, 23; urges count of disqualified overseas military ballots, 32
Calhoun, John C., 381
Carcassonne, Guy, 309
Carlisle, John, 81
Carroll, Christopher, analysis of butterfly ballot voting results, [64n3]
Carter, Jimmy, 139, 357
cast of characters, 22–24
certification: of Florida final recount, 34, 124, 153; Florida Supreme Court overturns Sauls's upholding of, 38, 39, 124–25; Gore's suit contesting, 33, 35, 37, 38, 124; in hands of state officials, 288; Saul upholds, 37, 38, 39, 124
certification deadline: announcements by Harris on, 28, 29, 150; Bush's team's brief seeking enforcement of, by Florida Supreme court, 31; inconsistencies in Florida Election Code regarding, 123; Jeb Bush's support for enforcement of, 29; not applicable to Broward County, 28; nullified by Florida Supreme Court, 32, 37, 40; as outmoded, 95; ruling on extension of, 28
chads: arguments over interpretation of, 27; changed standard in Broward County for counting votes with, 31; circuit court rulings on rejecting ballots with, 30; defined, 26; variable standards for counting ballots with, 238–39
Cheney, Dick: background on, 22; calls on Gore to concede, 37; heart attack suffered by, 33; opens privately funded transition office, 35
Chesterton, G.K., 253
Chicago, Burlington, & Quincy Railway Company v. Williams, 196–97
Chiles, Lawton, 23
Chirac, Jacques, 300, 303
Christopher, Warren: announced as head of Gore legal team in Florida, 25; on avoiding a constitutional crisis, 25; background on, 22; says Gore not considering concession, 37; on "will of the people," 252
chronology of events (November 7, 2000–January 20, 2001), 24–41
circuit courts: Florida role of, 23; history of, and use of per curiams, 192–94. See also Eleventh Circuit Court of Appeals; Leon County Circuit Court
Clark, Nikki Ann: background on, 23; rejects request to disqualify Seminole and Martin Counties' absentee ballots, 38–39
Clay, Henry, 376, 377
Clémenceau, Georges, [312n13]
Cleveland, Grover, [396n9]
Clinton, Bill: comments on postelection struggle, 252; election-eve statement by, 25; as minority president, 283, 351, 352, 379; refuses to release federal transition funds, 35; reliance on polls, 255; U.S. District Court judge appointed by, 23; U.S. Supreme Court justices appointed by, 24
close elections: Election 2000 as, 41, 103, 108, 147; increased chance of, with direct election plan, 389; margin of error in voting systems significant in, 325
Collier, Lacey A., 39
Congress. See U.S. Congress
Constitution. See French Constitution; U.S. Constitution
Constitutional Council (France), 17–18; assessment of validity of ballots, 308–10, [316nn59], [61]; assigned responsibility for settling parliamentary election litigation, 297, 298, [313n16]; differences between U.S. Supreme Court and, 301, 304, 305, 311; given jurisdiction to oversee referendums, 297–98, [312n15], [313n16]; handles protests of election results, 307–8, [316nn54–57], [59]; political appointment of members of, 18, [314n25]; positions of individual members kept secret, [314n26]; power to review and monitor presidential elections, 299, 301, 304–5, 306–7, [314n24], [315n40]; procedures/deadlines for settling presidential election disputes, 303–4, [314n35], [315nn36–37]; review of campaign accounts of presidential candidates, [316n62]; role in nomination of presidential candidates, 302–3, [314nn29–32]
constitutional coup, Election 2000 as, 227–35
constitutional crisis: Bush v. Gore decision as averting, 259, 263–65, [273n32], 328; Christopher on avoiding, 25; possible, resilience of American system of democracy with, 280–81, 333–35
Cooper v. Aaron, per curiam in, 200–202, 203–4
corruption, decentralization of electoral system as guarantee against, 19, 324–25
Council of State (France), 297, [312nn8–9], [316n55]
courts. See circuit courts; Florida Supreme Court; judiciary; U.S. Supreme Court
Daley, Richard, 363
Daley, William M.: background on, 22; calls for manual recounts, 26; rationale of, for action correcting voting results, 251–52, 253
Davis, Gray, 363
deadlines: December 12, for resolution of Florida election disputes, 130–32, 234–35, 236–37; Florida Supreme Court as responsible for inability to meet, 144–45; for Florida to take advantage of safe harbor provision, 132–33, 174, [186n110], 237; for presidential electors to meet and cast votes, [109n5], 174, [186n111]. See also certification deadline
DeLay, Tom, 29, 33, 116
democracy: electoral systems as essential mechanisms of, 322; federal constitutional, vs. constitutionalism of European Union, 338–44; popular, as value of post-Civil War constitutional order, 242–43, 245, 247–48; presidential vs. parliamentary, 318; relationship between will of the people and, 16, 252–54
democracy, American: "constitutionalizing" of, 84; distrust of expertise in, 78–79; Election 2000 as setback for, 112–13; Electoral College system as peculiarity of, 282–84; hypocrisy of, revealed by Election 2000, 335–36; lack of uniform ballot in, 286–87; national election
― 405 ―commission absent in, 288–89; resilience of, proven by Bush v. Gore, 280–81, 333–35; voter registration in, 285–86Democrats, Miami, unwilling to help Gore due to Elian Gonzalez affair, 230
demonstrations: by Republicans, 32–33, 34, 115–16, 230; led by Jesse Jackson, 28, 55, 251; outside U.S. Supreme Court, 37
direct election plan, 349–53; advantages of, 349–50; complications discouraging adoption of, 392; disadvantages of, 350–53, 385–88; effect on two-party system, 351, 385–86; implementing, without constitutional amendment, 356–58, 393–95; increased chance of close election with, 389; majoritarianism implemented by, 352–53, 385
discrimination, Equal Protection Clause as protection from, 91–92, 105, [109n11], 159–60, [183n63]
district plan, 20, 356–57
Donham v. West-Nelson Manufacturing Co., 197, 198
Douglas, Stephen, 393
Douglas, William O., 199, [211n52]
Duval County: spoiled ballots, [65n16]; undervotes and overvotes concentrated in poor, black precincts, 48
Dworkin, Ronald: A Badly Flawed Election, 89–99; reply to Charles Fried, 104–8, 109–10
election laws. See Florida election laws
election results: certification deadline for, 28; different countries' ways of handling contests of, 325–26, [330n13]; Florida, election-eve confusion over, 24–25; limited political influence in determining, in Germany, 320; restricting timing of television reporting of, 96; state-by-state, 24, 41–43
election system reform: automatic plan, 20, 355–56, 358; constitutional amendment abolishing Electoral College, 96, 97–98, 104, 139–40, [330n2], 348; danger of "deform" in, 348–49, 358–59; direct election plan, 20, 349–53, 385, 387–88, 389; district plan, 20, 356–57; implementing nationwide popular vote without constitutional amendment, 356–58, 393–95; instant runoff voting plan, 20, 354–55; model uniform election code, 98, 104; national bonus plan, 20, 353–54; national uniform electronic voting devices, 96, 103; proportional plan, 20, 357–58; reinforce Congress's role in settling election disputes, 140–41; at state vs. national level, 141, 348; television network reporting of results, 96; twentyfour-hour election day, 96, 98; unlikelihood of meaningful, 139
Electoral College: Americans supporting abolition of, 229; changes due to emergence of political parties, 348, 374; as check on simple majoritarianism, 380–84; constitutional amendment to abolish, 96, 97–98, 104, 139–40, [330n2], 348; criticism of, [330n2]; disadvantages of, in presidential elections, 96–97, 348; effect on presidential campaigns, 96–97, 139–40, 363–64, 378, 394; election reform plans retaining, 20, 353–54, 355–58; flaws of, 361–70; history of concept of, 112, [142n9], 347–48, 373, [390nn6–7]; impact on independent or third-party candidates, 351, 358, 364–65, 383–84, 385–88; impossibility of settling disputed presidential elections in, 72; late filing of returns with, 235; magnifier effect of winner-take-all feature of, 283, 351–52, 356, 358, 362–63, 388–89; presidential election disputes minimized by, 97, 388–89; reform of, without constitutional amendment, 356–58, 393–95; significance of, revealed by Election 2000, 111–12, 282–84; smaller states as having greater weight in, 112, [142n8], 228, 246; value of nationhood lacking in, 247; "wrong winner" thesis of, 377–80. See also electors
Electoral Count Act of 1887, on resolution of disputed presidential elections, 80–82, [85n12], 147
electoral systems. See voting systems
electoral votes: census-based determination of, 362; in Election 2000, 41–43, 229; elections where loser of popular votes won, 112, 281, 282, [396n9]; of faithless electors, 355–56, 365–66, 371–72; House of Representatives selects president if no candidate with majority of, 367–69, 376–77; significance of magnielectoral
― 406 ―fier effect of unit rule on, 283, 351–52, 356, 358, 362–63, 388–89; weakness of candidate winning, while losing popular vote, 96, 229electors: Article II giving state legislatures power to appoint, 111, 134–35, 137, 138, [142n4], 167, [186n113]; counting of ballots of, 148, 372–73, [390n4]; faithless, 355–56, 365–66, 371–72, 375; persons serving as, 371, [390n2]; states' apportionment of, 362–63, 372. See also Electoral College
electronic voting: accuracy of, 325, [330nn10]; problems with, [99n8], 325, [330n11]; as uniform national method of voting, 96. See also Accuvote voting devices
Eleventh Circuit Court of Appeals: background on, 23–24; Bush appeals to overturn decision allowing recounts, 29, 33, 38; denies Bush's request for injunction to stop recounts, 30, 39
Elhauge, Einer, 100, 103, 107
Elms, Laurel, 53, 61
Engelhardt, Joel, [65n20]
Engel v. Vitale, 163
England, marginalization of third parties in, 281
equality, as value of post-Civil War constitutional order, 242, 243, 244–45
Equal Protection Clause of Fourteenth Amendment: inconsistency in U.S. Supreme Court's finding of violation of, 130; justices' lack of firm belief in finding of violation of, 260–61, [272n20]; lack of uniform standards for counting votes as violation of, 47–49, 89–92, [98nn3–4], 101–3, 105–6, [108nn3–4], [109n10], 127–28, 238–40, 324; multitude of problems in Florida voting as violating, 127; "plain meaning" of, 120, 121; as protection from discrimination, 91–92, 105, [109n11], 159–60, [183n63]; reasons for U.S. Supreme Court justices' finding that recount violated, 133, 157–61; recount as violating, dissenting opinion in Bush v. Gore on, 161, [183nn72–73], [184n74]; use of different voting machinery as violation of, 92, [109n9]; vote dilution ordered by Florida Supreme Court as violation of, 144, 158–61, 177–78, [184n74]; weaknesses of analysis of, as foundation of Bush v. Gore majority opinion, 167–70
Europe, institutions given jurisdiction in electoral litigation, [312n14]. See also specific countries
European Union, 332–44; American federal constitutional democracy vs. constitutionalism of, 338–44; as constitutional supranationalism, 337–38; and discrepancy between constitutional principles and beliefs about American presidential elections, 336–37; U.S. as model for, 332–33, 337–38; views of American form of democracy, 333–36
Evarts, William, 81
Evarts Act, 192–93, 194, 195
faithless electors, 355–56, 365–66, 371–72, 375
Farber, Dan, 394
Farmer, Gary, 60
fascism: link between Rousseau's democracy and, 16; "whiff of," in complaints about Florida election results, 250, 255
Fastnow, Chris, analysis of butterfly ballot voting results, 52, 56, [64nn3–5]
Federal Election Campaign Act of 1971, 203
Federal Election Commission, 288
federalism: American, vs. constitutionalism of European Union, 338–44; direct election as threat to, 140, 352–53; as foundation of entire national government, 358–59; national bonus plan as undermining, 353–54; as objection to Bush v. Gore majority opinion, 173, [186n109]; as way of addressing geographic diversity of interests, 383–84
federal judiciary: key players, 23–24; political appointment of, [330n14]
federal principle. See federalism
Fischer, Joschka, 245
Florida: certification of final recount in, 34, 124, 153; countywide control of elections in, 112–13; election-eve confusion over voting results in, 24–25; key players in government of, 23; machine recount in, 25, 26, 34; partisanship of officials supervising and administering ballot
― 407 ―count, 78, 79, 114–15, 230, 231, 288, 335; vote totals in, 24, 25, 26, 28, 31, 34, 35, 39, 41, 42, 149, [179n17]Florida election laws: characteristics of, 229–30; inconsistencies and ambiguities in, dealt with by Florida Supreme Court, 123–25, 135–36, 150–51; not drafted for national election disputes, 75–76, 147; procedure for handling election disputes outlined in, 33, 149, 150; review and reform of, 29, 139; U.S. Supreme Court interpretation of, about December 12 deadline, 237
Florida judiciary: key players, 23; lack of U.S. Supreme Court justices' trust in, 107, [110n15]
Florida State legislature: background on, 23; joins Bush's Supreme Court challenge to manual recounts, 34; proposal to have electors chosen by, 31, 35, 36, 38, 40, 111, 231; and safe harbor provision, 93, [99n5], 152–53
Florida Supreme Court: ambivalence of interpretation of December 12 deadline, 237; background on, 23, [330n14]; charged with enacting new election law, 32, 133–38, 151; Gore appeals for recount of disputed Palm Beach and Miami-Dade County ballots, 36, 37, 38; Gore's appeal alleging abuse of discretion by Harris, 30, 31, 32, 124; Gore suit to overturn rulings allowing counting of disputed absentee ballots from Seminole and Martin Counties, 40; inconsistencies in Florida Election Code legitimately dealt with by, 123–25; issues order forbidding state officials from "certifying" election results, 150; myth that statewide recount order by, was forbidden by U.S. Supreme Court, 177, [187nn121], [125]; nullifies deadline set by Harris, 32, 37, 40; orders recount of undervotes, 39, 41, 125, 154, [181n37]; "outof-control" actions of, 153–57, [181n42]; overturns Sauls's upholding of certification, 38, 39, 124–25; Palm Beach County butterfly ballot case appealed to, 37, 62–63, [330n14]; partisanship of, 231; purposive interpretation by, 77; rulings on continuing manual recounts, 29, 30, 32, 33; U.S. Supreme Court nullifies decision of, extending deadlines, 37, [99n6], 150–53, [180nn25–26], 204; U.S. Supreme Court overturns ruling of, allowing recounts, 39–40, 41, 89–90, 151–53, 157; voter intent as standard in recount ordered by, 31, 89–90, 91–92, [98nn3–4], 105–6, [109n12], 127–29, 157; weaknesses of U.S. Supreme Court's Article II and equal protection rationales for reversing decisions of, 167–71
Ford, Gerald, 24, 357
Fourteenth Amendment. See Equal Protection Clause of Fourteenth Amendment
Fox, Craig, analysis of butterfly ballot voting results, [64n3]
France: assessment of validity of ballots, 308–10, [316nn59], [61]; balloting procedures in presidential elections, 303–4, [314nn33–35], [315nn36–38]; centralized, uniform procedures in presidential elections, 305–6, [315nn45–48]; Council of State, 297, [312nn8–9], [316n55]; counting of votes, 306–7, [316nn49–50], [53]; direct vote of people as antidote to power of political parties, 298–99, 300; election of president by direct universal suffrage, 298–99, 300, [313n18]; electoral reforms instituted by 1958 Constitution, 297–98, [312n15], [313n16]; impossibility of Bush v. Gore–like election dilemma in, 310–11; marginalization of National Front in, 281–82; political objectives evident in Parliament's supervision of elections, 297, [312n13]; power of president in parliamentary system, 300, [313nn22–23]; pre-1958 enforcement of electoral law, 297, [312nn9–11], [13]; principles guaranteeing voting rights, 296–97, [312n8]; procedures for contesting election results for voting irregularities, 307–8, [316nn54–57], [59]; size of electorate in, 304, [315n38]; system for nominating presidential candidates, 302–3, [314nn27–32]; term of office of president, [317n67]. See also Constitutional Council (France)
Frankel, Lois, 38
Frankfurter, Felix, 201
Franklin, Benjamin, [271n1]
French Constitution: principles in, guaranteeing right to vote, 296; referendum instituted by, 297–98, [312n15]; responsibility
― 408 ―for electoral litigation assigned to Constitutional Council, 297, 298, [313n16]Fried, Charles, response to Dworkin's A Badly Flawed Election, 100–103, 108–9
Fuller, Melville W., 195
Gaulle, Charles de: election reforms in 1958 Constitution, 297–98, [312n15], [313n16]; referendum on direct universal suffrage in presidential elections, 298–99, 300, [313n18]; women given right to vote in France, 296
Georgia, election reforms in, 139
Germany: federal regulation of national elections, 318–19; limited political influence in determining election results, 320; procedures for counting votes, 319–20; uniform ballots for federal elections, 319; unlikelihood of Bush v. Gore in, 18–19, 318–19; voter intent taking precedence over time in elections, 321
Gettysburg Address, 241, 243, 244, 247–48, [249n15]
Ginsburg, Ruth Bader: on appropriate court to interpret state law, 80; background on, 24; disagreed that "voter intent" standard violated equal protection, 91; federalism objections mentioned by, [186n109]; as liberal justice, 89; on recounts as violating equal protection, 161, [184n74]; statement (fictional) of opinion in Bush v. Gore, 218–21, 222–24
Giuliani, Rudolph, 363
Goard, Sandra, 27
Gonzalez, Elian, 230
Gore, Albert Jr.: background on, 22; concession by, 24–25, 27, 34, 37, 40; election-eve telephone calls to Bush, 24–25; on ignoring votes as ignoring democracy, [314n24]; popular vote won by, 41–43, 112, 229; on punch-card balloting disproportionately affecting minority voters, 36; television address explaining his challenge to Florida vote count, 35; television address offering to end further legal challenges, 29; transition planning by, 32; on "will of the people," 252
Gore's team, 22, 29; appeals to Florida Supreme Court for recount of disputed Palm Beach and Miami-Dade County ballots, 36, 37, 38; calls for manual recounts in four counties, 26, 149, [179nn18–22]; contests Florida's certified results, 33, 35, 37, 124, 153–54; files suit alleging confusion caused by butterfly ballot, 35, 36, 37; seeks ruling finding abuse of discretion by Harris, 30, 31, 32, 124, 150; on "will of the people" vs. voting results, 251, 252
Gore votes: butterfly ballot's possible effect on, 51, 53–54, 56, 62, [64n2], [64n8]; cast mistakenly for Buchanan, 51, 52–53, 54, 114, 287; concentrated in precincts using punch-card systems, 48–49; national total, 41–43, 229; recovered in recount with Broward vs. Palm Beach County standards, 48
government: American system of, Bush v. Gore as proving resilience of, 280–81, 333–35; Florida, key players in, 23
Green, Hannah, 311
Greenhouse, Linda, 189
Hamilton, Alexander: defended treaty negotiated with Great Britain, 250; on Electoral College system, 300, 347, 373; republican government defined by, 252–53
Hansen, Bruce, analysis of butterfly ballot voting results, [64n3]
Harlan, John Marshall, 167, 196, 202
Harris, Katherine: announcements about certification deadline, 28, 29, 150; background on, 23; declares absentee ballots will be counted, 25–26, 115; declares Bush Florida winner, 34; denies request from Palm Beach County for more time to complete recount, 34; Florida Supreme Court nullifies deadline set by, 32, 37, 40; Gore team seeks ruling finding abuse of discretion by, 30, 31, 32, 124, 150; partisanship of, 114, 230, 288; rulings contributing to delays in recounting, 95; sets deadline for written explanation of late returns, 28–29
Hastert, Dennis, 233
Hayes-Tilden election dispute, 82, 147, 232
Hegel, G. W. F., 281
Hengartner, Nicolas, [181n40]
Herron, Michael C., analysis of butterfly ballot voting results, 52–53, 53–54, 56, [64n8]
Holmes, Oliver Wendell Jr.: dissents from per curiams, 196–98; on general principles and concrete cases, 238
House of Representatives. See U.S. House of Representatives
Hunt v. Blackburn, 191
hypocrisy: of American public, 16, 259–60, 262–63; of American system of democracy, 335–36; of U.S. Supreme Court, 16, 259, 263–65, 268–69
independent candidates, impact of Electoral College on, 351, 358, 364–65, 383–84, 385–88
instant runoff voting plan, 20, 354–55
Irish Ballot, 354–55
Irons, John, analysis of butterfly ballot voting results, [64n3]
Israel: closing of polling stations and media pronouncements of election winners, 292; National Election Commission, 288–89; view of Bush v. Gore from, 17, 279–94; voter identification at polling station, 286; voter registration, 285, 293–94
Italy: Constitutional Court, [331n20]; view of Bush v. Gore from, 19, 322–31
Jackson, Andrew, 376–77
Jackson, Jesse: calls for manual recount of Palm Beach County ballots, 27; leads Palm Beach County demonstrations, 28, 55, 251
Jackson, Robert H., dissent from per curiam, 198, 199–200
Jackson, Robert Max, analysis of butterfly ballot voting results, [64n3]
Jacobs, Harry, 27, 30
Jasper County, South Carolina, voting irregulaties in, 54, [64n9]
Jefferson County, Florida, [179n21]
Jewish voters, mistakenly voting for Buchanan, 25, 52–53, 114, 287
Jospin, Lionel, 303, [314n23]
Judicial Code of 1911, 194
judiciary: American public as desiring order more than law from, 266–67; damage of Bush v. Gore decision to, 93, 111, 145–46, 261–62, [273n26], 289–91; federal, 23–24, [330n14]; Florida, 23; impossible ideal of perfect justice and impartial judges, 116–18; lack of review of German election results by, 320; per curiams as expressing voice of Court, 194–96, [208n20]; Tocqueville on U.S. political questions resolved by, 322, 329n. See also circuit courts; Florida Supreme Court; U.S. Supreme Court
Juppé, Alain, [314n27]
Kaplan, Ray, 55, [65n11]
Kennedy, Anthony M.: abortion rights position, 91; asked by Bush to halt enforcement of Florida Supreme Court's decision, 39; as author of per curiam opinion, 11, 327; background on, 24; coauthor of opinion in Casey, [185n92]; conservative label applied to, 89, 101, [109n7]; on exercising responsibility vs. playing it safe, [273n24], [274n40]; majority opinion in Dickerson, [185n92]; personal interest in Bush presidency, 138; on public trust of Court, [273n26]; statement (fictional) of opinion in Bush v. Gore, 212–16, 222–24
Kennedy, John F., 103, 357, 389, [396n9]
Kent, James, 254
King, Rufus, 250
Klock, Joseph P. Jr., 40
Krathen, David, 55, 61
Krivine, Alain, 302–3, [314n32]
Labarga, Jorge: ruling on Palm Beach County Canvassing Board's rejection of ballots, 30; ruling on revote sought in Palm Beach County, 32, 60–61, 62–63
Lacorne, Denis, 299
Laferrière, Jules, 307
Leon County Circuit Court: Bush suit seeking recount of rejected overseas ballots, 33, 34; in charge of conducting recount of undervotes, 39; Gore suit contesting certification of results, 35, 37, 153–54; key players in, 23; Seminole and Martin Counties' corrected absentee ballot applications case, 34, 38–39
Lett-Simmons, Barbara, 41
Lewis, Terry P.: background on, 23; in charge of conducting recount of under Lewis,
― 410 ―votes, 39; denies Gore's request for ruling finding abuse of discretion by Harris, 30, 31, 32; rejects request to disqualify absentee ballots from Seminole and Martin Counties, 38–39; ruling on extending certification deadline, 28Lieberman, Joseph: announces Gore will not concede, 34; background on, 22; on military votes, 31
Lincoln, Abraham: First Inaugural Address, 242; Gettysburg Address, 241, 243, 244, 247–48, [249n15]; interpreted laws of republic, 257, 258, [272n9]; popular vote received by, 385; senatorial race with Douglas, 393
Linde, Hans A., 256, [271n1], [273n28]
Livingston, Robert, 254
Lochner, Robert, [110n15]
Lott, Trent, 33, 116
McCabe, Scott, [65n20]
McConnell, Michael W., 174, [187n114]
Machiavelli: on good rulers as prepared to sacrifice everything to save republic, 267; on necessity of survival of state, 258; "princely leaders" concept of, 258
Machiavellian motivations: of American public, 16, 259–60, 262–63; of U.S. Supreme Court, 16, 259, 263–65, 268–69
Madison, James, 347, 381
Maine, district plan for electoral votes, 356, 372, 391
majoritarianism: direct election plan as implementing, 352–53, 385; Electoral College as check on, 380–84; U.S. Constitution as stopping short of, 340
Mansfield, Harvey J., [294n2]
manual recounts: in Broward County, 26, 27, 29, 30, 33, 34, [330n3]; Bush appeal of Middlebrooks's decision allowing, 29, 38; Bush lawsuit seeking injunction against, 19, 27, 28, 29, 30, 323–25; different standards for counting undervotes, 47–48; of disputed ballots from Palm Beach and Miami-Dade Counties, 35, 36, 37, 38; Florida election laws on, 26, 123; focus on, as surrogate remedy, 72–74; Gore campaign calls for, in four counties, 26, 149, [179nn18–22]; Gore television address on ending legal challenges over, 29; in Miami-Dade County, 28, 30, 32, 33, 35, 96, 115–16, 154, 155, [181n41], [330n3]; in Palm Beach County, 26, 27, 28, 30, 33–34, 35, 36, [330n3]; in Volusia County, 26, 27, 28, [330n3]; "voter intent" standard, 89–90, 91–92, [98nn3–4]. See also recounts
Marbury v. Madison, 233
Marshall, Thurgood, 203
Martin County, absentee ballots with corrected applications in, 36, 38–39, 40, 115
McPherson v. Blacker, 152, 162
McReynolds, David, 57, [63n2]
Mebane, Walter R. Jr., analysis of butterfly ballot voting results, 52, 53–54, 56, 57, 60, 61, [64n8]
media: conduct of, in Election 2000, 291–93; prohibition of advertising in, during French election campaigns, [315n41]; proposed restriction on timing of television reporting of election results, 96; timing of announcement of exit polls in Israel, 292
Merritt, Gilbert S., 40
Mesa v. U.S., 190
Miami-Dade County: ballots ordered delivered to court, 35, 36; claims that African Americans turned away from polls, 26; effect of Elian Gonzalez affair on Gore in, 230; manual recount of disputed ballots, 35, 36, 37, 38; manual recount in, 28, 30, 32, 33, 35, 96, 115–16, 154, 155, [181n41], [330n3]; Republican demonstrations in, 32–33, 115–16, 230
Miami Herald, review of undervote recount, 41
Middlebrooks, Donald M.: background on, 23; Bush appeal of decision of, allowing recounts, 29, 38; denied Bush injunction against manual recounts, 19, 28, 29, 323–25
Miles, Samuel, 355
military votes, 31, 32, 34
Miller, John A., 28, 30
Miranda v. Arizona, 163; case reaffirming, 165, [185nn88–89], [92]
Mississippi County, Arkansas, voting irregularities in, 54
Mitterand, François, [314n27]
Model Uniform Election Code, 98, 104 Monroe, Burt, analysis of butterfly ballot
voting results, [64n3] Moody, William H., 196 Murphy, Frank, 199Murphy v. Sardell, 197, 198
NAACP, on voting by blacks in Florida, 26
Nader, Ralph: effect of voting for, 358, 365; listed on Palm Beach County butterfly ballot, [64n2]; Palm Beach County vote for, 60
Nadler, Jerrold, 250, 255
Nassau County, election night tabulation
used instead of machine recount, 34 national bonus plan, 20, 353–54 National Democratic Institute (NDI), 288 national identification cards, 286 national popular vote. See direct election
plan
nationhood: Electoral College as lacking value of, 247; as value of post-Civil War constitutional order, 242, 243, 245, 247
Nebraska, district plan for electoral votes, 356, 372, 391 Nelson, Debra, 32, 34New York Times Co. v. United States, per curiam in, 202–3, 204 Nixon, Richard, 24, 103, 357, 389
O'Connor, Sandra Day: abortion rights position, 91; as author of per curiam opinion, 11, 327; background on, 24; coauthor of opinion in Casey, [185n92]; conservative label applied to, 89, 101, [109n7]; majority opinion in Dickerson, [185n92]; personal interest in Bush presidency, 138; statement (fictional) of opinion in Bush v. Gore, 212–16, 222–24
O'Keefe, Jonathan, analysis of butterfly ballot voting results, [64n3] Olson, Theodore B., 40 optical-scan ballot readers. See Accuvote voting devices Orszag, Jonathan, analysis of butterfly ballot voting results, 57, [64n3] Orszag, Peter, analysis of butterfly ballot voting results, 57, [64n3]
overvotes: areas of concentration of, 48–49; defined, 25, 51; lack of recount of, 156–57, [182n53]; in Palm Beach County, 25, 51, 56–58, 61, 62, [64n8], [65nn13–15], [20]; rate of, dependent on type of voting machine, 48
Palm Beach County: absentee votes in, 58–59, 61, 62; affidavits by voters alleging confusion over butterfly ballot, 27, 57–58; ballots ordered delivered to court, 35, 36; Bush campaign objection to undervote count in, 47–48; Bush v. Palm Beach County Canvassing Board ("Bush I"), 150–53, [180nn25–26], 204; butterfly ballot use in, 25, 50–66, 73; Gore suit alleging confusion caused by butterfly ballot, 35; hearing on butterfly ballot use in, 60–62; high vote for Buchanan in, 25, 52–55, 58–59, 61–62, [64nn3–9], 73; manual recount in, 26, 27, 28, 30, 33–34, 35, 36, [330n3]; overvotes in, 25, 51, 56–58, 61, 62, [64n8], [65nn13–15], [20]; rate of "recovery" of Democratic votes in, 78; revote demanded in, 25, 32, 37, 60–63, 251
parliament, French: elimination of power to elect president, 298–99, 300, [313n18]; political objectives in supervision of elections by, 297, [312n13]; power of president within parliamentary system, 300, [313nn22–23]; "rationalized parliamentarianism," 297–98, [312n15]
parliament, U.S. Supreme Court's conduct as similar to, 326–29. See also parliament, French
partisanship: of Florida officials supervising and administering ballot count, 78, 79, 114–15, 230, 231, 288, 335; inevitable charges of, in resolving Election 2000, 10, 70–71, 95–96; as motivation for Bush v. Gore majority opinion, 104, 146–47, 178, 260–62, [273n24], 326–29; of U.S. Supreme Court, 10, 118–20, 122, 125–26, 127, 133. See also politics
Pasqua, Charles, [314n27]
Pataki, George, 363
Pentagon Papers case, per curiam in, 202–3, 204
per curiams, 189–207; with accompanying dissents, 196–200, 206, [209n30], [211n52]; in Buckley v. Valeo, 203, 204, [210n49]; in Bush v. Gore, 10–11, 13–14, 204–6; in Bush v. Palm Beach County Canvassing
― 412 ―Board, 204; in Cooper v. Aaron, 200–202, 203–4; history of U.S. Supreme Court use of, 190–204; legal consequences of, [209n24]; in nonprocedural cases, 191–92, 194–95, [208n14]; in Pentagon Papers case, 202–3, 204; in procedural cases, 190–91; reasons for increase in, 190–93; voice of Court expressed in, 194–96, [208n20]Perot, H. Ross, 351, 358, 364–65
Phillips, Howard, [64n2]
Poher, Alain, 303
political parties: Electoral College changes due to emergence of, 348, 374; independent or third-party, impact of Electoral College on candidates of, 364–65; instant runoff voting encouraging third parties, 355; two-party system, contribution of Electoral College to, 385–86; twoparty system, election system reforms destroying, 351, 354; vote of people as antidote to power of, in France, 298–99, 300
politics: limited influence of, in determining German election results, 320; politicization of voter registration in U.S., 286; as U.S. Supreme Court's approach to exercise of jurisdiction, 163–64, 165–66. See also partisanship
poll hours: in France, 306; in Israel, 292; and media calling of election winners in different time zones, 292–93; uniform national, 96, 98
Pompidou, George, 303
popular vote: advantages of, as standard for national elections, 96–97; in Election 2000, 41–43, 112, 229; elections where winner of, lost electoral vote, 112, 281, 282, [396n9]; electoral vote total as overrepresentation of winner of, 283, 351–52, 356, 358, 362–63, 388–89; national, 20, 349–53, 385, 387–88, 389; weakness of candidate losing, while winning electoral vote, 96, 229. See also direct election plan
Posner, Richard A., 259, 263, 265, 267, 273
Post, Robert, 198, [209n29]
Powell, Colin, 36
presidential campaigns, effect of Electoral College system on, 96–97, 139–40, 363, 378, 394
presidential candidates: Electoral College as originally nominating, 347, 348; French, review of campaign accounts of, [316n62]; French system for nominating, 302–3, [314nn27–32]; third-party or independent, impact of Electoral College on, 351, 358, 364–65, 383–84, 385–88
presidential elections: disputed, U.S. Congress as institution for resolving, 80–81, 82, [85n13], 140–41, 162, [184n75], 232; living vs. written constitutional procedures for, 227–29, 336–37; no constitutional right to vote for president, 139, 282, 283–84, [294n3]; overview of process of, in Constitution, 148; possibility of uncertain and unresolved, into January, 366–70; resulting in selection of president by U.S. House of Representatives, 148, 367–69, 372, 376–77
presidential elections, French: balloting procedures in, 303–4, [314nn33–35], [315nn36–38]; centralized, uniform procedures in, 305–6, [315nn45–48]; direct universal suffrage in, 298–99, 300, [313n18]; reviewing and monitoring of, 299, 301, 304–5, 306–7, [314n24], [315n40]
Price, David E., 29
proportional plan, 20, 357–58
protests. See demonstrations
proxy votes, in France, [316n53]
public, American: desires order more than law from U.S. Supreme Court, 266–67; Machiavellian motivations of, 16, 259–60, 262–63; polls of, during resolution of disputed election, 27, 28; trust in judiciary, 93, 111, 145–46, 261–62, [273n26], 289–91
punch-card voting devices: black vs. white voters living in counties using, 36, 113; concentrated in counties voting for Gore, 48–49; inaccuracy rate with, 92; mistakes by machines tabulating votes made with, 107, 108, [110n14]; undervote/overvote rates with, 48, [66n24], 113
Quince, Peggy A., 23
rationalized parliamentarianism, 297–98, [312n15]
Reagan, Ronald, 24
recounts: Bush suit seeking, of rejected overseas ballots, 33, 34, 39; by news media, 41, [109n6]; different standards for tabulating votes in, 324–25; final, Florida Election Canvassing Commission certifies, 34; Florida Supreme Court rulingson, 29; Gore request for, after certification, 35, 154–55; machine, in Florida, 25, 26, 34; myth of statewide, forbiddenby U.S. Supreme Court, 177, [187nn121], [125]; of overvotes, 156–57, [182n53]; possibility of, in six days, 102, 106–7; of undervotes, 39, 41, 125, 154, 155, 156–57,[181n37]; U.S. Supreme Court dissentingopinion's equal protection objections to, 161, [183nn72–73], [184n74]; U.S. Supreme Court halts, 39, 91, [98n2], 102–3, 118, 130–31, 157, [182n54]. See also manual recounts
Rehnquist, William H.: abortion rights position, 91; analysis of Article II as rationale for concurring opinion in Bush v. Gore, 167, 170–71, [186n106]; background on, 24; Buckley v. Valeo per curiam, 203; conservative label applied to, 89, [109n7]; on lack of constitutional right to vote for president, 282; majority opinion in Dickerson, [185n92]; personal interest in Bush presidency, 138; statement (fictional) of opinion in Bush v. Gore, 221–22
republic: government necessarily constituted by laws, 257; high court judges assovereigns of government of, 258–59; leaders' power to take liberty with lawsof, 256–57, [272n9]; Machiavellian viewof princely leaders of, 258; U.S. Constitution as characteristic of, 281–84, 293
Republicans: Congressional, call Florida Supreme Court's ruling abuse of power, 32; demonstrate in Broward County, 34;protest in Miami-Dade County, 32–33, 115–16, 230
revote, demanded due to voter confusionin using butterfly ballot, 25, 32, 37, 60–63, 251
Reynolds v. Sims, 163, 167
Richard, Barry, 60–61
Richmond township, New Hampshire, voting irregularities in, 54
right to vote: as core of democracy, 295–96; for president, 111, 139, 282, 283–84,[294n3]; principles guaranteeing, in France, 296–97, [312n8]
Riordan, Richard, 363
Roe v. Wade: case reaffirming, 165,[185nn89], [92]; controversial yet admireddecision, 163; near unanimity of decision, 233; U.S. Supreme Court justices'positions on, 91, 101
Rogers, Beverly, 55, [65n11]
Rosenband, Till, analysis of butterfly ballot voting results, [64n3]
Rousseau, Jean-Jacques: democracy of, asfascist, 16, 255; on "general will" of people, 255, 295; on majoritarianism as political principle, 340
Ruben, Matthew, analysis of butterfly ballot voting results, [64n3]
Rudenstine, David, 202
Ryan, George, 363
safe harbor provision: called to attention of Florida Supreme Court in U.S. Supreme Court opinion, 152–53; deadline for Florida to take advantage of, 132–33, 174, [186n110], 237; defined, 90; and Supreme Court's equal protection claim, 92–93, 131–32
Saintsbury, George, 255
Sanford, Edward T., 198
Sauls, N. Sanders: background on, 23, 38;denies request for recount of disputedballots, 35, 37, 38, 154; Gore requestsrecount, 35; Gore's contest of Floridavote certification, 35, 37, 124, 153–54; orders ballots delivered to court, 35, 36; upholds certification, 37, 38, 39, 124
Scalia, Antonin: abortion rights position, 91;background on, 24; conservative labelapplied to, 89, 101, [109n7]; defense ofmajority opinion in Bush v. Gore, 327;dissent on post-Miranda cases, [185nn88–89]; on issuance of opinion in context ofstay, 10; personal interest in Bush presidency, 138; on reason for Supreme Court halting recounts, 91, [98n2], 118, 119, 291; son in Theodore Olson's lawfirm, 40; statement (fictional) of opinion in Bush v. Gore, 221–22; textual in-Scalia,
― 414 ―terpretation favored by, 77; as type of justice Bush favors, 120, 138Sekhon, Jasjeet Singh, analysis of butterfly ballot voting results, 52, 53–54, 56, [64n8]
Seminole County, absentee ballots with corrected applications in, 27, 30, 32, 34, 38–39, 40, 115
Senate. See U.S. Senate
Seventeenth Amendment, 98, 111, 392–93
Sherman, John, 81–82
Shimer, Robert, analysis of butterfly ballot voting results, [64n3], [64n6]
Shotts, Ken, analysis of butterfly ballot voting results, 52–53, 53–54, 56, [64n8]
Smith v. United States, 191–92, 194–95, [208n13]
Souter, David H.: advocated remanding case to state court, 173–77, [187n114]; agreed that "voter intent" standard violated equal protection, 91, [98nn3–4], 102; background on, 24; coauthor of opinion in Casey, [185n92]; compromise sought by, 328; dissent by, while agreeing with majority, 189, 206–7; integrity of, in finding of equal protection violation, 130; liberal label applied to, 89, 101; on recounts as violating equal protection, 161, [183n72]; statement (fictional) of opinion in Bush v. Gore, 216–18, 222–24
South Carolina, last state to choose electors by statewide popular election, 372
standards: "clear intention" standard in recount ordered by Florida Supreme Court, 89–90, 91–92, [98nn3–4], 105–6, [109n12], 127–29, 157; different, for tabulating votes in recounts, 324–25; justices disagreeing that "voter intent" violated equal protection, 91, 161, [183n73]; lack of uniform, for counting votes as violation of equal protection, 47–49, 89–92, [98nn3–4], 101–3, 105–6, [108nn3–4], [109n10], 127–28, 238–40, 324; in Texas, 128; "voter intent" as, in Massachusetts case, 106, [108n4], [110n13]
state laws, as mechanism for resolving disputed presidential elections, 80
state legislatures: Article II giving power to, to name electors, 111, 134–35, 137, 138, [142n4], 167, [186n113]; election reform plans implementable by, 348, 356–58; Electoral College system as leaving choice to, 94, 95, 228; electors chosen in manner determined by, 94, 95, 228, 356, 372, 375–76, [390n3]; mechanism for resolving disputed elections of members of, 71, [84n3]; power to choose senators taken away from, 98, 111, 392–93
states: with district plan for calculating electoral votes, 356; election reform at level of, 141; election results for, 24, 41–43; Electoral College as check on sectionalism among, 381–83; importance of local factors in, magnified by Electoral College, 363–64; relative power of slave owning, in Electoral College, 112, [142n9], [390n6]; responsibility for conduct of elections held by, 288; role in presidential elections, 339; smaller, as having greater weight in Electoral College, 112, [142n8], 228, 246
states' rights: inconsistency of Bush v. Gore majority opinion with Court's position on, 126, 173, 238; Rehnquist Court's invalidation of laws termed intrusive on, 126, 138, [143n33]; reinterpretation of, in conservative justices' view of Article II, 240–41
Stevens, John Paul: on appropriate court to interpret state law, 80; background on, 24; on damage of Bush v. Gore to public's faith in judges, 93, 111, 145–46, [273n26]; disagreed that "voter intent" standard violated equal protection, 91, 161, [183n73]; on lack of harm to Bush of recount, 118, 166, 326–27; liberal label applied to, 89, 101; on potential for litigation challenging election practices, [186n99]; statement (fictional) of opinion in Bush v. Gore, 218–21, 222–24; on U.S. Supreme Court's distrust of Florida judiciary, [110n15]
Sunstein, Cass, 329
Supreme Court. See Florida Supreme Court; U.S. Supreme Court
Taft, William Howard, 197, 369
television. See media
Texas, clear-intent-of-voter standard in, 128
Texas v. Johnson, 163
third-party candidates, impact of Electoral College on, 351, 358, 364–65, 383–84, 385–88
Thomas, Clarence: abortion rights position, 91; background on, 24; conservative label applied to, 89, 101, [109n7]; on exercising responsibility vs. playing it safe, [273n24]; personal interest in Bush presidency, 138; statement (fictional) of opinion in Bush v. Gore, 221–22; textual interpretation favored by, 77; as type of justice Bush favors, 120, 138; wife works for Heritage Foundation, 40
Thurmond, Strom, 364
Tocqueville, Alexis de: admired American political culture, 333–34; on federal principle, 359; on U.S. political questions resolved by judiciary, 322, 329n
Toinet, Marie-France, 311
transition planning, 26, 32, 35, 36
Twelfth Amendment, 140, 162–63, 348, 372–73, 376
Twentieth Amendment, 369
Twentieth Century Fund, 353
Twenty-third Amendment, 372, 391
undervotes: areas of concentration of, 48–49; defined, 25, 124, 129; different standards for counting, 47–48; Miami Herald and USA Today review of recount of, 41; recount of, 39, 41, 125, 154, 155, 156–57, [181n37]
United Kingdom, courts given responsibility for electoral litigation, 297, [312nn12], [14]
United States v. Swift & Co., 198–200
USA Today, review of undervote recount, 41
U.S. Congress: endorsement of model uniform election code, 98; as institution for resolving disputed presidential elections, 80–81, 82, [85n13], 140–41, 162, [184n75], 232; laws on presidential election procedures passed by, 148–49; mechanism for resolving disputed elections of members of, 71–72, [84n4]; partisanship of, 10; possible resolution of disputed Bush-Gore election in, 82–83, 232; potential to adopt twenty-four-hour election day, 98; presidential elections resolved by, 82, 232; reinforcing role of, in settling election disputes, 140–41; as responsible for correcting constitutional violations by Florida Supreme Court, 162–63, 164–65, [184n84]. See also U.S. House of Representatives; U.S. Senate
U.S. Constitution: Article II giving state legislatures power to appoint electors, 111, 134–35, 137, 138, [142n4], 167, [186n113]; Article II as legal foundation of Bush v. Gore majority opinion, 167, 170–71, [186n106], 240–41; Election 2000 as constitutional coup, 227–35; living vs. written, presidential election procedures of, 227–29, 336–37; mechanisms for resolving disputed elections provided by, 71–72, 140–41, 147; no right to vote for president in, 139, 282, 283–84, [294n3]; overview of process of electing president in, 148; pre-and post-Civil War constitutional values contrasted, 241–44; as republican but not democratic, 281–84, 293; U.S. Supreme Court as final sole authority on legal meaning of, 270, [275n53]; U.S. Supreme Court process of "constitutionalizing democracy," 84. See also amendments, constitutional; Equal Protection Clause of Fourteenth Amendment
U.S. House of Representatives: selection of president by, 148, 367–69, 372, 376–77; "wrong winner" thesis applied to majority in, 378–79. See also U.S. Congress
U.S. Senate: constitutional amendment providing for direct election to, 98, 111, 392–93; and presidential election unresolved by Electoral College, 369–70. See also U.S. Congress
U.S. Supreme Court: Bush's petition to overturn Florida Supreme Court's ruling allowing manual recounts, 32, 33, 34, 37, 39–40, 151–53; charged Florida Supreme Court with enacting new election law, 133–38; "constitutionalizing" by, 83–84; criticism of political approach to exercise of jurisdiction of, 163–64, 165–66, 260–62, [273n24]; decides not to hear Bush's appeal of Eleventh Circuit decision, 33; as final sole authority on legal meaning of Constitution, 270, [275n53]; integrity lacking in decision of, 126–38; intervention in Election 2000 as ill-advised and unnecessary, 113, 118–19;
― 416 ―judicial activism of, 232–34, 261–62, [273nn24], [28], [29], [274n40]; minimal time devoted to deliberation by, 328, [331n20]; myth that Florida Supreme Court forbidden by, from conducting statewide recount, 177, [187nn121], [125]; partisanship of, 10, 118–20, 122, 125–26, 127, 133; resolving presidential election disputes in, 81–83; use of per curiams by, 10–11, 13–14, 189–207; weaknesses of Article II and equal protection rationales for reversing Florida Supreme Court decisions, 167–71. See also Bush v. GoreU.S. Supreme Court, December 4, 2000, decision, nullifies Florida Supreme Court decision extending deadlines, 37, [99n6], 150–53, [180nn25–26], 204
U.S. Supreme Court, December 9, 2000, decision, 10, 39; December 12 deadline in, 130–32, 237; denial of equal protection alleged in, 89–90, 91–92, [98nn3–4], 133; recount halted, 39, 91, [98n2], 102–3, 118, 130–31, 157, [182n54]; and safe harbor law, 92–93, 131–32
U.S. Supreme Court, December 12, 2000, decision, 10–11, 40; flaw of Electoral College system revealed by, 111–12; overturns Florida Supreme Court ruling allowing recounts, 40, 41, 89–90, 151–53, 157; per curiam in, 10–11, 13–14, 189–90, 204–7; as setback for American democracy, 112–13
U.S. Supreme Court justices: background on, 24; conservative activism of, 90–91, 126; conservative/liberal breakdown of, 11, 12, 89, 101, [109n7]; favored by George Bush, 120, 138; lack of trust in Florida judicial system, 107, [110n15]; Machiavellian motivations of, 16, 259, 263–65, 268–69; personal benefits of Bush presidency for, 138; "plain meaning" as focus of, 119–22; praise for, 206–7; purposive vs. textual interpretation by, 76, 77; as sovereign leaders, 258–59, 269–70; statements (fictional) of positions in Bush v. Gore, 212–24. See also names of specific justices
Volinsky, Chris, analysis of butterfly ballot voting results, [64n3]
Volusia County: manual recount, 26, 27, 28, [330n3]; real tabulation problems, [179n19]
vote dilution, in recount ordered by Florida Supreme Court, 144, 158–61, 177–78, [184n74]
voter identification: in France, 306; in Israel, 286
voter intent: "clear intention" standard in recount ordered by Florida Supreme Court, 31, 89–90, 91–92, [98nn3–4], 105–6, [109n12], 127–29, 157; as standard in Massachusetts case, 106, [108n4], [110n13]; U.S. Supreme Court dissenting opinion on, and equal protection, 91, [98nn3–4], 102, 161, [183nn72–73]; vs. time, 31, 321
voter registration: in France, 306, [315nn38], [46]; in Israel, 285, 293–94; in U.S., 285–86
votes: Florida count totals of, 24, 25, 26, 28, 31, 34, 35, 39, 41, 42, 149, [179n17]; German procedures for counting, 319–20; of military personnel, 31, 32, 34; need for equal protection of, 47–49; total national, 41–43, 229. See also election results; electoral votes; popular vote
voting, relationship between will of the people and, 16, 253–55
voting booths, in France, 296, [312n8]
voting devices: biases in voting system due to, 47–49; France's nonuse of, 306; German Ministry of Interior's approval of, 319; undervote/overvote rates with different types of, 48, [65n24]; use of different, as violation of equal protection, 92, [109n9]; variation in, resulting in inequalities, 287–88
voting systems: biases in, due to different voting devices, 47–49; decentralization of, as guarantee against corruption, 19, 324–25; as essential mechanisms of democracies, 322; margin of error in all, 325; significant variations in, 323, 325. See also election system reform
Wallace, George, 364, 387
Wand, Jonathan, analysis of butterfly ballot voting results, 52, 53–54, 56, 61, [64n8]
Warren, Earl: Brown v. Board of Education, [210n37]; and Cooper v. Aaron per curiam, 201, 202; dissent when agreeing with per curiam, [211n52]
Weisman, Robert, 25
Weiss, Philip, 254–55
Wells, Charles T., 156, [182n50]West v. Brashear, 190
Wexler, Robert, 52
White, Byron R., 203
White, Edward D., 196will of the people: ascertained in elections in federal constitutional democracy, 339–40; French conception of "general will," 255, 295; Gore campaign spokesmen on, vs. voting results, 251, 252; mentioned in Florida Supreme Court's majority opinion, 156; relationship between democracy and, 16, 252–54; relationship between voting and, 16, 253–55; will of the numerical majorityvs., 352–53
Willowbrook v. Olech, 102, 105, [108n2]
Wilson, James, 347
women, given right to vote in France, 296