NOTES
This essay is based on a presentation on the 2000 Election Dispute given at New York University School of Law on January 17, 2001.
1. Michael C. Dorf and Samuel Issacharoff, "Can Process Theory Constrain Courts?" 72 U. Col. L. Rev. 923 (2001).
2. U.S. Const. Art. I, § 5.
3. Florida among them. See 9 Fla. § 102.171 ("The jurisdiction to hear any contest of the election of a member to either house of the Legislature is vested in the applicable house, as each house, pursuant to s. 2, Art. III of the State Constitution, is the sole judge of the qualifications, elections, and returns of its members").
4. Roudebush v. Hartke, 405 U.S. 15 (1972). It should be noted that this full process required nearly two years after election day before Hartke, the Senate's choice, was finally seated officially.
5. United States Senate: Election, Expulsion and Censure Cases, 1793–1990, 312–15, 421–25 (Washington, D.C.: GPO, 1995).
6. See Eric Schickler, Terri L. Bimes, and Robert W. Mickey, "Safe at Any Speed: Legislative Intent, the Electoral Count Act of 1887, and Bush v. Gore," J.L. & Pol. (forthcoming 2001).
7. Id.
8. 121 S. Ct. 525, 537–38.
9. David Strauss, "Bush v. Gore: What Were They Thinking?" 68 U. Chicago L. Rev. 737 (2001).
10. I take these figures from Michael McConnell, "Two-and-a-Half Cheers for Bush v. Gore,"68 U. Chicago L. Rev. 657, 671 (2001).
11. 121 S. Ct. at 533.
12. See, e.g., 17 Cong. Rec. 815 (Jan. 21, 1886) (Sen. Sherman) ("[The proposed Electoral Count Act] comes before us again at the beginning of an administration, when no party advantage can be derived from our decision, when the Senate is clearly on one side in party politics and the House clearly is on the other; and now, if ever, this matter ought to be settled upon some basis of principle").
13. 3 U.S.C. § 15 provides the mechanism for a congressional resolution, with ultimate default rules, in the case of a state presenting competing slates of presidential electors.
14. For a full history of these debates, see Schickler, Bimes, and Mickey, "Safe at Any Speed."
15. 17 Cong. Rec. 1058 (1886) (Sen. Evarts).
16. 13 Cong. Rec. 5148–49 (1882) (Rep. Carlisle).
17. 17 Cong. Rec. 815 (1886) (Sen. Sherman).
18. 17 Cong. Rec. 817–18 (1886) (Sen. Sherman).
19. 48 U.S. 1 (1849).
20. Richard H. Pildes, "Democracy and Disorder," 68 U. Chicago L. Rev. 695 (2001).