The Votes that Counted: How the Court Decided the 2000 Presidential Election
Howard Gillman
Chicago & London: The University of Chicago Press, 2001.
$27.50, 306 pages, ISBN 0-226-29407-2.

The Vote: Bush, Gore & the Supreme Court
Cass R. Sunstein & Richard A. Epstein eds.
Chicago & London: The University of Chicago Press, 2001.
$18.00, 272 pages, ISBN 0-226-21307-2.

The Unfinished Election of 2000: Leading Scholars Examine America’s Strangest Election
Jack N. Rakove, ed.
New York: Basic Books, 2001.
$25.00, 270 pages, ISBN 0-465-06837-5.

Georges-Claude Guilbert
Université de Rouen

Back in the summer of 1989, a friend of mine from upstate New York was invited by a colleague to spend the day on a yacht on Lake Ontario. She kindly took me along, seeing that this was my first visit to the States and I had never seen the lake. After some two hours on board, I politely asked our hostess when we would start cruising around. She snapped, “We’re not going anywhere, the engines don’t work.” Taken aback, I thought I would crack a joke, so as to relieve the obvious tension. “Oh”, I said, “she looks brand new, maybe you should sue the people who sold her to you.” It turned out she was suing them. Feeling embarrassed and foolish, I said, “Well, I hear Americans will sue for anything, given half a chance, I even hear they sue doctors for failing to cure seventy-year-old men of cancer, ha ha.” She barked, “My husband died of cancer last year, he was 71, I am suing the clinic!” After that, I retreated to a far corner on deck and waited for the day to end.

I now know better, and never joke about such matters when I cross the Atlantic. There are in the US four times as many lawyers as there are in France, proportionally to the number of inhabitants. Of course, some might argue that French lawyers should be more numerous; but surely it is forgivable to think that maybe Americans are slightly excessive in this respect.

Indeed, these days even presidential elections are settled in court.

Howard Gillman is associate professor of political science at the University of Southern California; he is the author of The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993), a book that is well known by everyone who’s interested in public law. The Votes that Counted: How the Court Decided the 2000 Presidential Election, begins with a welcome 8-page chronology, listing one case after another. Fladell v. Palm Beach County Canvassing Board, McDermott v. Harris, Siegel v. LePore, Gore v. Miami-Dade County Canvassing Board, etc. In his Introduction Gillman immediately shows that Election 2000 was a judicial as well as a political challenge. The rest of the book is a subtle blend of narrative and analysis. The way the Supreme Court entered the arena is carefully examined, with just the right amount of details about the different stages that were successively reached. Gillman speaks of “rounds”, conjuring up some titanic fight between the candidates—or is it between lawyers and judges? The “butterfly ballot” business is clearly explained, which was not always the case in the media back then. Gillman is very convincing when he outlines the “politics behind the votes that counted”, and does not try to spare anyone. The book concludes with useful appendixes and a table of cases that will surely be invaluable to law students.

Throughout The Votes that Counted: How the Court Decided the 2000 Presidential Election, Gillman records all the first-time-ever events of the post-election suspense period, and in the fifth chapter in particular, entitled “The Dam Breaks: Five Justices Pick a President”, he reminds us of this capital fact:

When the Bush campaign asked the US Supreme Court to stop a last ditch effort to recount Florida’s ballots they created the first case in US history with the names of two presidential candidates in the title. The election litigation had always been a battle between the vice president and the Texas governor, but now it had officially become Bush v. Gore.

The Vote: Bush, Gore & the Supreme Court, edited by Cass R. Sunstein and Richard A. Epstein, is a well-balanced collection of papers by a handful of specialists, professors of law, of jurisprudence, a judge, who all have impressive CVs. Indeed the authors disagree in ways that amusingly recall the way the Supreme Court itself was divided. I find it functions rather well as a sort of companion piece to The Votes that Counted: How the Court Decided the 2000 Presidential Election. Here are the titles of the papers, which speak for themselves: “In Such Manner as the Legislature Thereof May Direct: The Outcome in Bush v. Gore Defended”, “Leaving the Decision to Congress”, “Political Judgments”, “The Newest Equal Protection: Regressive Doctrine on a Changeable Court”, “Two-and-a-Half Cheers for Bush v. Gore”, “Suspicion, or the New Prince”, “Democracy and Disorder”, “Bush v. Gore: Prolegomenon to an Assessment” (by Richard A. Posner, no less), Bush v. Gore: What Were They Thinking? (my favorite), “Order Without Law”, and “In Defense of the Court’s Legitimacy”. The Introduction by Cass R. Sunstein is entitled “Of Law and Politics”, and the Afterword by Richard A. Epstein “Whither Electoral Reforms in the Wake of Bush v. Gore. Some of the pieces distinctly verge on philosophy; interestingly, even the authors who try to exonerate the Supreme Court Justices do so with a great deal of caution, and not always very convincingly.

Pamela S. Karlan, who contributed to The Vote: Bush, Gore & the Supreme Court, also wrote a chapter of The Unifinished Election of 2000: Leading Scholars Examine America’s Strangest Election, edited by Jack N. Rakove. In both pieces, her concern is Equal Protection, and how the Supreme Court’s decision constitutes a dangerous precedent. This book is more varied than the former, inasmuch as it is not exclusively the product of professors of law; there are different perspectives, political science, American Studies, history… But the two books have one thing in common: they splendidly illustrate the Election 2000 controversy, that will probably last forever. One thing is clear, no-one will ever be able to trust the Supreme Court naively any longer. I wonder what will happen in November 2004. Will all the people who did not bother voting in 2000 (I’m thinking notably of many African Americans, women, and gays) feel more motivated, because of what happened, or will the voting booths be even more deserted?

To conclude, considering the huge amount of Election 2000 accounts that have now been published, the above three books are the ones I would principally recommend, notably to those among students and teachers who are anxious to form a balanced opinion on what will remain a fascinatingly unusual presidential election. I also recommend Deadlock: The Inside Story of America’s Closest Election, by the Political Staff of The Washington Post (2001).

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