Justin Levitt (Loyola Law School Los Angeles) has posted The Misshapen Shadows of the 2000 Election (Florida State University Law Review, forthcoming) on SSRN. Here is the abstract:
The election of 2000 catalyzed an entire field. A quarter-century on, with the benefit of a bit of time and distance, the anniversary presents an opportunity to see whether we understand the landscape of 2000, including its precursors and our responses, in a way that puts us in position to advance the healthier, “thicker” democracy we deserve.
The news is not great.
This Essay describes and discusses three stubbornly persistent misconceptions of the 2000 contest that continue to cloud our vision with respect to contemporary election law and practice. Part I confronts lessons for election administration. It contends that only an impoverished view of the 2000 contest holds that the election turned on the now-obsolete disposition of hanging chads—and not only rejects the notion that we have corrected the problems that led to the dispute, but also contends that we will remain beset until we adjust our conception of the goals we seek to achieve. Part II confronts jurisprudence and our understanding of the constitutional bounds of the judicial process. It contends that only an impoverished view of the 2000 contest holds that either the Florida Supreme Court or the United States Supreme Court reflected naked tribal partisanship or judging beyond the constitutional pale—and not only rejects the notion that the theory of jurisprudence embodied in Bush v. Gore’s “independent state legislature” discussion has much continuing vitality, but also locates the Electoral Count Reform Act’s new provisions in a more hopeful view of the courts. Part III confronts the sociology of the dispute. It contends that only an impoverished view of the 2000 contest allows the Supreme Court’s extraordinary black-swan intervention to slip beyond the facts at hand—and rejects the notion that courts, not voters, determine the outcomes of our elections. The Essay develops these arguments in the hopes that a clearer understanding of our electoral history may help us better approach the present.
Recommended!
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