Download Magazine - Levin College of Law - University of Florida

“The first lesson is this: Take it from me— every vote counts.” —AL GOREBitter words from AlGore, a man whoshould know. Gore,who won the majorityof the nation’spopular vote in the2000 presidentialelection, ultimately conceded Florida’s 25electoral votes — and the White House— to George W. Bush after a landmarkdecision by the U.S. Supreme Court to endFlorida’s vote recount. The final marginof victory for Bush in Florida consistedof 537 votes, .0002 percent of the state’snearly 6 million certified ballots.“What happened in 2000 is exactlywhat everyone feared, that it would godown to a few thousand votes or less,”said Stephen N. Zack (JD 71), one of theattorneys representing Gore following theelection and a partner in the Miami firmBoies, Schiller & Flexner. “I think onething important to look at from a historicalperspective is that there is virtually noelection that is free of problems. Whatusually occurs is that the margins are solarge that those problems do not becomesignificant. But when you have a verynarrow margin, they become very, verysignificant, and that’s what happened inFlorida in 2000.”Florida’s 2000 presidential electionwas initially called in favor of Bushby 1,784 votes. This tiny margin ofvictory triggered statutorily-mandatedmachine recounts of ballots in all 67Florida counties, the results of whichnarrowed the margin to a Bush leadof little more than 300 votes. Bush’stenuous majority, coupled with votercomplaints of confusing butterfly ballotsand malfunctioning voting machines inseveral counties, compelled Gore, as hewas entitled to do under Florida law, toprotest the results in Broward, Dade,Palm Beach and Volusia counties. Hepressed for recounts in those counties of“undervotes” — ballots that did not showa valid legal selection during machinecounting, but which might demonstratevoter intent when examined manually.Gore’s decision to ask for manualrecounts in these heavily Democraticcounties, which many critics described as“strategic cherry-picking” of votes, kickedup a legal scrum of epic proportions. Afterweeks of litigation in Florida’s courts,examination of thousands of ballots withchads in various states of detachment,and media attention that characterizedFlorida’s election and state politics asnational jokes, the U.S. Supreme Courtintervened with a judgment — one likelyto be argued in law schools and livingrooms for generations — that effectivelyended the spectacle.“There can be no doubt that a majorityof Americans voted for Al Gore to bepresident of the United States — that morepeople voted for Al Gore, or thought theywere voting for Al Gore, than for GeorgeBush,” said Zack, who is slated to be thenext president-elect of the American BarAssociation. “It definitely indicates thatelections are subject to human variables,and in a contested election that is razorthin, those human errors are going tocause problems.”‘FLORIDA CAN’T COUNT’Many people are still confused bythe series of events leading up to theU.S. Supreme Court’s intervention inFlorida’s recount of the 2000 presidentialelection. By the time the nation’s highestcourt ended the litigation on Dec. 12,the battle had been raging in Florida for36 days and a dizzying number of suitsand countersuits had made the roundsthrough Florida and federal courts. Thecountry was obsessed with hangingchads, but Florida law did little to shedlight on how to discern the voter intentthey might reveal.“We’d tended to overlook theimportance of elections until the 2000presidential election, in which we realizedwe were using outdated equipment,machines and so on, particularly in thelarge populated counties,” said W. DexterDouglass (LLB 55), Gore’s lead Floridacounsel and long-time state politico whopreviously served as general counselfor Gov. Lawton Chiles and chairof the Florida Constitution RevisionCommission. “The combination ofantiquated voting systems and antiquatedvoting laws put us in a position when webecame pivotal to the election to causethe court proceedings that followed.”The first case that made its way tothe U.S. Supreme Court involved theFlorida Supreme Court’s ruling in favorof Gore’s protest of the vote count inBroward, Palm Beach and Volusiacounties. Central to the question wasthe statutory deadline, set by section102.111 of Florida law, for counties tocertify their election returns no later thanseven days after the election. Several ofthe counties conducting manual recountswere unsure they could complete therecounts in time to certify their returnsFALL 2008 15