Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts

Judge Richard Posner performs an invaluable service by cutting through the Cherminsky and Sunstein left-wing legal clutter surrounding Florida Election 2000. Judge Posner delivers clear legal analysis that is still accessible to the educated layperson. His overall conclusions: the Florida vote was fair, the Florida supreme court was partisan, and the U.S. Supreme Court was as well, although it had practical reasons for being so. Specific points include: * First and foremost, Posner correctly places most of the blame for the fiasco where it's most deserving, on the Florida supreme court. To those who complain of judicial politicization of the U.S. Supreme Court, just remember where it began: with seven Democratic Party hacks in robes in Tallahassee. Posner slams the Palm Beach County Canvassing Board v. Harris decision (both the original and on remand) several times. Highlights include: >>> The Florida court used inexcusably poor reasoning and logic in saying that a voter's error in completing a punch card ballot is a form of "error in vote tabulation" (pp 95, 116, 122). This reasoning is a violation not just of the plain meaning of F.S. 102.166(5) (2000), but also a violation of common sense. As Posner notes, no allegation was ever made of an error in a punch card reader (pp 62, 86). <br /> <br />>>> The court also created a false dilemma by saying that the statute allowing a protest for seven days after the election conflicted with the overall seven-day deadline to certify returns (p 105). Posner correctly points out that (a) if a candidate were so stupid as to wait for seven days before protesting that "the losing candidate has himself to blame for not acting faster," (b) in any event, such a delay in protest did not in fact occur with Gore so the court never should have addressed the issue in the first place and (c) a recount to review an error in the vote tabulation machines (as opposed to a review of the vote itself) could be completed within the time frame set forth in F.S. 102.166 (2000), so the court only found this dilemma by misinterpreting what an "error in the vote tabulation" was in the first place. See F.S. 102.166(3)(a) (2000). <br /> <br />>>> The court used a vague state constitutional declaration of "power is inherent to the people" (pp 100, 104-107) to ignore specific statutory language directing the Secretary of State to make determinations regarding election matters as set forth in F.S. 97.012 (2000), in order to give Gore more time than he was authorized under the Florida statute. By doing so, the court was not only usurping legislative power by changing the plain words of the statute, it was also probably violating Art. II Sec. 2 cl. 2 of the Constitution (pp 127, 153, 155). <br /> <br />>>> The court ignored elemental principles of statutory construction when examining F.S. 102.112 (2000) (the Department of State *may* ignore untimely returns) and F.S. 102.111 (2000) (the DOS *shall* ignore untimely retur

We are a little over a year away from the 2004 Presidential election and you can bet that the 2000 election will cast its shadow over the electorate. For that reason, Breaking the Deadlock remains a very timely read. Going into 2004, it's worth bearing in mind the book's central point: that the question of who won the popular vote in Florida was not a question of fact, but of law. "If the recount was unlawful, the winner of the recount would not be the winner of the election even if he was in some sense the more popular candidate." At the same time,however, Judge Posner acknowledges that Courts, including the Supreme Court, that interpret the law, and were interpreting Florida election, and U.S. Constitutional law in 2000, are themselves exercising a level of discretion that invariably calls into play extra-legal factors. The "people" shall be judge, as the sagacious philosopher Mr. Locke asserted, but who then are the people? Who counts? This text confronts that question. Not all of the material covered in this book was new to me. Still, I learned a significant amount about the 2000 election, and about the electoral process in general. Teachers, students and voters in general will find in Breaking the Deadlock a superb survey of a critical facet of U.S. political life.

In a masterpiece of understatement, Richard A. Posner was described in a 2001 New Yorker profile as a thorn in the side of left and right alike. Well, I suspect his conclusion that the Supreme Court was right in stopping the hand counts, but it's reasoning wasn't will enrage the usual inside the Beltway talking heads.Having trudged through a small mountain of incresingly hysterical, partisan 'analysis' of Bush v. Gore, I finished this book feeling like someone had opened a window and let out the hot gas.Posner brings the same clear-eyed, unsentimental and carefully argued perspective as 'An Affair of State', his equally controversial analysis of the Clinton impeachment.This book won't appeal to the usual partisan crowd, who only read to confirm their prejudices, and isn't designed to be an easy beach read -- so don't look for this at the top of the bestseller list. But this thoughtful and highly intelligent book should be. About the only book I've read on Bush v. Gore books that cast more light than partisan heat.

I found this to be an impressive logical analysis of the legal issues. I learned much about our Constitution, American election history, elections over the ages, election theory, and the basis of government and society. His law students in Chicago obviously must cherish interacting with him. I admit I voted for Bush, but even so, it is amazing how much someone can learn about our legal and government system from this book. I plan to read it a second time.

Unlike every other book published to date on the 2000 election, Richard Posner doesn't write for a partisan faction. Here is the best treatment yet of the Florida debacle, conceding that in all likelihood a majority of Floridians wanted Gore to be President, and that the greatest obstacle placed in their way to realizing that end, that muddle of a butterfly ballot, was placed there by unwitting Democrats. Shorn of the arm-chair second-guessing of judges' motives typical of the post-election talking heads, Posner focuses on the law, its precise language and reasonable interpretation, and the predictable consequences of varied courses of actions. That his treatment will not satisfy the partisan goes without saying; that it will likely prove the best, pragmatic explanation of what in fact happened, why, and what ought to be done about it seems certain.