tv Bush v. Gore Supreme Court Decision CSPAN February 28, 2016 8:00pm-9:31pm EST
national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> the preceding political debates was presented by "the charleston gazette" and produce voting stations as a public service. announcer: up next, a look back at the bush v gore u.s. supreme court case. legal experts discuss the decision's merits and the .recedent it say -- it set
the american constitution society for law and policy hosted this 95 minute event. >> hello, everybody. wonderful to have such a great showing today during we want to welcome you to our event, bush v gore, 15 years later. americanme court in democracy. i am caroline fredrickson. i'm happy you are able to join us today. i would like to very much thank you julie fernandes and the open society foundation for hosting us here today in this wonderful space. for any of those who may not yet be familiar with the american constitution society, we are a nationwide network of lawyers, law students, judges, policymakers and scholars who believe that the law should be to improve the lives of all
people. we work for positive change by shaping the debate on vitally important legal and constitutional issues through the development and promotion of high-impact ideas to opinion leaders and the media. and by building networks of lawyers, law students, thosemakers dedicated to ideas and by countering the activist, conservative legal movement that has sought to erode and during constitutional -- erodein during enduring constitutional values. today involves the most essential, voting and judicial integrity. today, we revisit the supreme court decision that just 15 years ago halted the counting of ballots in florida and effectively decided the 2000 presidential election in favor of george w. bush. a -- our panelists today will
court equalsupreme protection ruling in bush legal or and the impact it has had on election law and equal protection jurisprudence. they will discuss critiques of the supreme court's actions and whether those actions had a lasting effect on the public's confidence on the supreme court as a concert -- is an is edition. as an institution. and finally, they will discuss where we are now, 15 years later, and less than one year from another presidential election. here to moderate the days are -- , i know youscussion are excited, we have joan this kupic.-- joan bis
she has written several books. she is the author of "sandra day o'connor: how the first woman on the u.s. supreme court became its most influential justice." joan was the supreme court reporter for "the washington post" and "usa today." is a graduate of georgetown law school and was a finalist for the pulitzer prize in 2015. please join me in welcoming joan and our esteemed panel for today's conversation. [applause] joan: thank you, caroline. thank you all of you for coming here today on this unusually --m december 5 and day, december 15 day and two
anniversarythe 15th of what some of us feel was just yesterday. i remember where i was. obviously, i was in the pressroom. but i also remember where i was on just -- on december 9 when the justices halted the recount. as some of you might feel in this room, that was almost as momentous as what the justices ended up ruling. in some way, some of us may believe what set the stage for what happened on the 12th. about how eventful those 36 days between the november 7 election and the final results in bush v gore. we have to think of what happened since. george w. bush took the white house. we had the wars in afghanistan -- we had 9/11, just a few months later. we had the wars in afghanistan and iraq.
we had a change in the supreme court in 2005 with chief justice john roberts. in 2006, samuel alito. we had the historic election of barack obama. and then two more changes with justice soanya sotomayor in 2009 and elena kagan in 2010. and in some ways, and 2010, citizens united has replaced bush legal or as a rallying cry politically at least. as a rallying cry politically at least. just when i think people have stopped thinking about it or stopped asking about it, i will as in speech somewhere, last summer in connecticut, where the first question is -- what about that bush legal or? -- bush the gore? but we are here to look at both sides, not just what happened back then, but how the ruling
has reverberated through the years. i will start with my immediate left. -- judithwn diana's brown-dianis. we also have richard hasen. google bush v gore, i think your name comes up second. along with justice scalia saying, please, get over it. we also have pamela karlan. like judith, she has been in the trenches. most recently as an assistant
attorney general in the civil rights division. who filled in. we really appreciate you coming. you are probably the person who will most defend the ruling and bush we gore and we need to hear -- bush the gore and we need to hear your voice today. their full or bios are in the material. athought i would start in breeze your way just to get all of our voices heard before we dig into the real substance. i wanted to ask each of the panelists what really resonates -- what do they really remember most vividly from that period.
recall something that sticks in your mind, just a bring us back to it. i am glad to see so many people in the room who i know were at the scene and you will remember what happened. for the few of you are thinking, ok, who was there on the court, it has changed. was a per curiam opinion. it wasn't signed by anyone specifically. it was assigned at 10:15. in the majority were chief dissentingnquist, were the more liberal justices, john paul stevens, david souter, ruth bader ginsburg, and david breyer. in the end, with the measured he said was the recount process, as it was described by the majority and as it was going on in florida at the time come is inconsistent with the minimum procedures necessary to protect the fundamental rights of each voter in a state recount.
and then it said, the implication was this is one ticket good for one right only. there was plenty of heat on the other side. i will give a snapshot of then junior justice john paul stevens. we will not know the certainty with -- the identity of the winner of this election. the loser is abundantly clear. rememberhat do you from those 36 days. judith: thank you for having me here. is great to be in this room with faces that i remember from 15 years ago. they may look a little different. but it is great. ,ust thinking about bush v gore
in some ways, i get some hives thinking about that time. for me, when the decision was handed down, i was in florida. the thing i remember, two days after the election -- actually, one day after the election, on the wednesday, my codirector called me and said we need to get on a plane. i remember saying to her to do what? go toid we are going to florida. we are voting rights letters and we will figure it out. we got on a plane on thursday. and i stayed there for probably the next two months investigating what happened to african-american voters. while all of this was -- there inuld probably be a statue florida of someone doing this.
i was not looking at hanging chads. i was finding those black voters. that is what i remembered. i remember the intensity of being in labor union hall where they were organizing lawyers from throughout the country. and they had so many lawyers that, at some point, they said to us, hate, we will lend you some lawyers and they actually lent us about a hundred lawyers to help us span throughout the state to find those black voters whose votes were not counted. rick: thanks for the opportunity to put this together. i am shocked that semi-people still care about this case. it does seem we have not done much to improve our elections since then. the nightking back to of the decision in bush v gore. i was home in california. i was watching on television. i remember the confusion. and what was going to happen
next? what is the ruling mean? it took 20 minutes before the opinion was available online. i remember the washington post was the first to have it online. the election i had law blog. out.ember e-mailing i remember reading the opinion and tripping over what i consider to be the most -- the greatest understatement in supreme court history which is the one that says the only disagreement is "as to the remedy." seven justices agreed there was a problem with the accounting. the only disagreement was the remedy. country, thein the only thing that mattered was the remedy. for a teacher or remedies, that is the whole ballgame. whether theabout protection holding was right or wrong. but this struck me as most controversial part of the case. -- the nextyers
day, gore decided he would not go back to the florida court and keep going. i talkteach remedies, about your client doesn't care about the reasoning the get you there, only the bottom line. caroline: we will have time for questions. pamela: i want to thank acs for putting on this event. i want to go back before the decision. what struck me mostly about the election in florida is that it was clear by election day that more voters who had gone to the polls and cast their ballots thought they had voted for al they had votedht for george bush. but the law was powerless to deal with some of the use problems.
butterfly ballot, for example, some have voting for pat buchanan. even pat buchanan knew those votes were not his. but there were no -- there was no way of giving those back. the people struck from the rolls by a bizarre purge process that ended up striking several thousand black voters on the grounds that they were felons simple because their names matched the names of felons and they shouldn't have been struck at all. when we finally got to the litigation, the system was already so lot that it was unclear whether any remedies would work. and i think that has stuck with me more than virtually anything else of the case. curt: election night, it looks like gore had it wrapped up.
we hung around the election party i was at. we ended up napping on the floor and waking up a few hours later by the news that florida had now .een awarded to bush i remember we wandered down to the white house just to see what was going on there. there were a few hundred people shouting -- i don't remember about what. then around 3:00 a.m., we got back to my office and turned on the tv and it turned out that bush hadn't won after all. looks going to be what like a long contest. just on drama, the ups and downs of that night stick with me. it halted the recount as the
florida supreme court had ordered it, but it remained the case and allowed for another recount. it may drag out further. the news.ning, we got but that is what sticks in my mind. judith: i think we will reverse order. your organization, you have long talked about judicial activism. i think some people in this room and some of your fellow panelists, if there had ever been a case for judicial activism, this might be it. this is a bad
example of judicial activism. the politics of the judges play a role, which is basically every hot button issue that comes before the stream -- the supreme court. i think of it as more of the typical case where you really can make plausible arguments on either side. it,less -- and let's face judges being him and end ideology and politics play a role. judges being human and ideology and politics play a role. a reasoning that cannot be plausibly grounded, i'm not saying the best argument cannot
be plausibly grounded in the words of the constitution or statute. i certainly read the arguments on both sides. i think you can make the argument certainly either way. and another hallmark to me of true judicial activism is where actingrt is effectively as a legislature to amend the .onstitution or amend a statute and the court went out of its way not to do that here. ironically, some progressives, that is their biggest complaint. but i think the court was trying to go out of its way not to be activist there. but i hoped at the time that, given the genuine outrage on the part of the left, i thought it might be too
strong of a word to say -- but that they had learned a lesson you know, about, friendly, how it feels when the court makes stuff up. but i don't know that anyone learned a lesson. i can certainly point to recent decisions. bergfeld being the most obvious. but i can point to examples where i think the left has backed away from activism and i'm sure you can point to plenty examples where you think that is true, you -- citizens united being one of them. caroline: rick, do you want to it? in and counter wasla: i don't think it activism, but bad judging.
the florida courts would not have been boxed in in the way they had been by the supreme court decision that suggested that the legislature had to be looked at in a very particular way with respect accounting of presidential election ballots. stayed outreme court until the florida court completed the process, there would not have been a arguable equal protection problem that the courts all because all of the ballots would have gone through the same counting process and there wouldn't have claim thatlorable ballots were being counted differently in different parts of the state. at the end of the day, there would have been a compartmentalization of the standard. and more people had tried to vote for al gore than voted for george bush and that it should be awarded to al gore.
i don't think it was activism in some sense. but i am skeptical of the idea that activism means anything other than people say this is an opinion i do not like. for my 2012 back voting wars book. nobody comes in looking good. everybody probably would agree that one of the problem we had in the election was an out-of-control supreme court. you look at all the decisions made, ideology played such a strong role. in the heat of the moment, it was very difficult for anyone to be objective about it. this is really interesting. florida's ballots are public record. so the ballots themselves were northorted to
organization in illinois to have the ballots recounted, after everything is over and bush is already president. what they found, uncontested alice, someone -- on contested ballots, they were much more vote for gore a than if the counter was republican. it was hard for anybody to be objective even after the fact. in the heat of the moment, these things are so difficult. it suggests that the problems have to be solved on the front and so we don't have bad ballot design. the margin of error was much larger than the margin of victory in this case. i don't think we know very well who the actual winner was your i agree that -- winner was. i agree that more people wanted to vote for gore than for bush.
but in terms of the actual recount, the only way he would standardwas if the that bush had abdicated would have -- did you want to jump in, judith? so there's the decision and then there is ignored. sticks out mythat head is 137, that number. from our perspective, while people were talking about this decision, while people were looking at the tabs, what they were talking about was that black people in the state of florida were ripped off.
that day, there were two lawyers from the gambler project -- from the enamel project and one from aa seat he answering that number. and all the calls were coming in from florida. it was based upon that that we went to florida, held a hearing to understand what had happened to people, and then started an investigation. found in the case that
katherineaa cp versus harris was that the secretary of state had engaged in intentional action that took african-americans off the rolls. , thatrge that happened hurt thousands of voters, legitimate voters, we have plaintiffs in our case that had voted for years, had never been convicted of a felony, were told that they were taken off the rolls because they had been convicted. and then it was found later on that there was no conviction. we had people who had voted for 30 years. all of a sudden, their names were not on the rolls. not because of a purge around felony convictions, but for no reason. there were people who registered for this particular election who did not make it to the rolls. the is well documented on commission for civil rights report on voter irregularities in florida after 2000.
and had we decided we were going to look at all of the issues instead of looking at hanging chads and butterfly ballots, we would have found that there was artisan manipulation of that election that landed in a different outcome than what should have been. caroline: i wanted to get back to the settlement of the nature of the case. but i am going to bring pamela withto a q and a she had pam and judge richard poznan. it ran in "harpers" at the time. how close wesaid were to a constitutional crisis. he said "i believe it could have been very bad if the crisis had .een unresolved that christmas
do you know who the president would have been on genuine 20th if we had no resolution of the crisis? he said, larry summers. namedat he has been president of harvard, that would have been good training for him. numberner says, he was four. but madeleine albright was number three, but ineligible because she was foreign-born. so it's president summers. you wanted that? so if you talk about the notion that were close to a dangerous constitutional crisis.
what a list of potential presidents during [laughter] -- potential presidents. [laughter] there are some candidates who seem well matched with that group. i want to talk about a different art of that lunch we had. i don't think we were close to a constitutional crisis. we had a month before the electoral college was going to -- was going to meet. by then, we would have had a decision in florida when we or the other. the part of the lunch -- the idea was i would have lunch with dick posner and then they ran a transcript. a decisionow bad bush v gore is?
i said it is a bad decision, but nothing near korematsu. and then pos said something shockingner. i don't think or a monster was such a bad decision either. -- i don't think cora korematsu was such a bad decision either. he shocked me. first super close election in u.s. american history. what was interesting to me is the power and the capital that the supreme court had built up that, once the supreme court
sawd, vice president gore no way to challenge the court's ruling, even if he thought it was wrong. court, the supreme building on its decisions in brown against board of education and in the apportionment -- the reapportionment revolution had gained capital with the mac of people. is -- with the american people. that is where the supreme court got things wrong. i don't think we needed to have this as cited by december 12 so that people would have a full two weeks of christmas shopping before christmas day. caroline: i'm reminded that, at
the time, that they felt some urgency themselves, that things are out of control, either constitutionally or on the ground. what is your response to that? urt: i agree that things would have turned out differently in the 19th century and i would not to that time,k not in terms of the values of that time, but in terms of the role of the court. how lincolnn handled dread scott, which is to say that it applied to the parties and did not bind others. and you see what happened after oberg fell. clearly, the court went from of threewould say, one equal branches to what can only be called judicial supremacy,
the dude judicial -- the judicial tyranny. tomorrow, the supreme court decided to invalidate the 13th amendment. should we all sit by and say, well, you know, it's 5-4, but that is a majority. the idea that there is no limit to what the supreme court can do and we should all sit back and take it. if the end of the day, almost no one agrees with that. thinking back to the part in the opinion where i believe it was kennedy who probably wrote this. it's an that says unsought responsibility. we had no choice. the court did not have to take the case.
it reminds me of a sign in citizens united. asked to determine to overrule often. you are not asked. we can bring in oberg are felt here. the justices have you that he has the responsibility to answer -- to answer all of the nation's major questions. there would have been a vote. thatonstitution gives contest that power to congress. it could have been a political decision. it might have been a decision that had a president bush winning in the house and al gore casting the tie vote in the senate for joe lieberman. that could have happened. but the decision was meant to be a political one and not one
[indiscernible] . caroline: thanks. the harris case ended up in a settlement and that was through the first of what we've seen through the years now as challenges to restrictions at ballot box,arks -- how people for sure counted, some people challenging and saying there is voter fraud out there.rea judith: -- out judith: after months of investigating, we actually filed the case in january 2001. was filed against catherine harris and six of the counties
and the division of elections. we were challenging everything that we knew happened. from the purge and people may remember there were two companies involved. asactually added one of them one of the defendants because we knew we needed information about what katherine harris had instructed them to do. claims under the voter registration act. was, you know, this case really -- the harris case really for us was the first time in which we actually saw that there were these cracks in our democracy and the way in which we administer elections really came to a head. and the secretary of state all of a sudden had so much power that people -- americans didn't
know how much the secretary of state had your nor did americans know the power the individual election officials had during so you had 67 counties in the state of florida that were running elections six to seven different ways. and they actually still run elections away. what we did was funneling this case, looking at ways to fix the system. it was a proactive case here we knew we did not want to file the case to actually impact the outcome of the election. but what can we look at moving forward. that kind of litigation actually led to the help america vote act, in which provisional ballots -- we did not have provisional ballots back then. the people showed up and couldn't vote. sorry, there is nothing we can do. this actually help put money into the states and the locales with the machines that were needed to get rid of some of those bad machines that we all know about. but also to put in provisional
ballots. we were also looking at the purge and how the state handled the polar -- the purge. and choice point got out of the business. callis now what we election administration. there is a whole field of worry as do election administration, looking at election laws and how election officials are administering and at the state laws. and if we look at the bush v. wouldase, one thing i take from that case that has had an enduring impact really is the court's kind of reminding states that actually they are the ones to establish whether or not there is a right to vote and how that right to vote will be executed. them and a reminder to it has opened up the floodgates to a host of voter suppression
laws that we have seen since 2000. if we go to the indiana voter id case and then moving forward into voter suppression that we are challenging in north carolina and other places. this is the partisan lesson that .e have learned out of florida they have carried on and endured and we have seen laws passed for partisan manipulation of voting, in really in which he -- in ways in which you can see state legislatures passing these laws were you can save a little off here and a little off there and you might get the 537 votes. that is probably the legacy. i also think that, for civil rights law, while bush v. gore may not have had a big impact, it did underscore the problems that we see in elections that have civil rights of locations. caroline: before we go to the impact on the law itself, i know that richard has followed the
jurisprudential, pam, do you want to add some of the trenches of the voting rights legislation? pamela: before 2000, you did not ae in the previous decade populargument, a large argument that there was substantial vote fraud going on and therefore we had to tighten up voting laws. in the last 10 or 15 years, the idea that there is substantial vote fraud in the united states and that that substantial vote fraud can be stopped somehow by restricting the ability of individuals to cast a ballot and have it counted has gotten huge purchase. so the help america vote act itself doesn't actually help that many americans to vote. in part because it allows for provisional ballots, it doesn't have any standard for whether or
not those ballots should be counted or not. many will cast provisional ballots and think that has given them the ability to vote only to find out that those votes don't get counted. in the right d laws, the cut tax in the last decade or so is almost a direct product i think of the environment they came out of bush v. gore, an environment which was one of deep this -- deep mistrust of people's ability to vote and the sense that large numbers of people were voting that shouldn't the voting on the light -- shouldn't be voting and the life. and the argument that there is no right to vote for president unless the state has given you that right and then the equal protection clause only applies to the counting of the ballots and not to the access to the votes in the first place. haven't mentioned
yet one of the other pieces of bush v. gore, which is a kind of -- i guess it is like the man in the high court, a ripoff of the man in the high castle. the question of the counterfactual. as a direct result of bush v. have a chief justice who, from his early days as a lawyer, had a deep distrust of federal voting rights laws. that itself has helped shape the discussion and the decisions going forward, keeping our eye on as we get into the discussion of the impact of the case, the broader impact of the case, not just on the election and not just on election law, but everything that follows from that. t: i think pam is right that a lot of the concerns among conservatives about the other fraud do spring from bush v. gore. i can only tell you how it
looked from the perspective of the conservative legal community. there was absolute horror at perception that bush had, in the view of many -- i'm sorry, that gore had almost owned the election by asking for recounts in three heavily democratic theties, by then doing democratic [indiscernible] first and not getting to the republican precincts. that left a lot of scars among conservative blair years -- conservative lawyers, that elections are not separate sank. progressives are trying to make this as partisan as everything else and we need to fight back. debate whether it is an overreaction or a commensurate reaction. i know we are not going to agree
on that today. but that definitely was the i satlogy, you know, when in rooms with other conservative lawyers. that was definitely the feeling and the motivation. judith: the idea that, you know, that the election was stolen when there was a secretary of state -- i really think people should go back and read this in the -- this report, this investigation by the u.s. commission on civil rights. my colleague eddie hill was the council at the commission of civil rights of the time and ross examined katherine harris and others who were involved in the purge. by just incredible admission the company that was hired by in state to do this purge which the company knew that the purge was wrong and that it was going to leave to false positive
, and that there were going to be people who would be purged or had never been convicted of a felony. and that the secretary of state said it's ok, that she wanted to cast a broad net, that she wanted an 80% match on name, date of birth, and address. and that she knew there would be people who had not been convicted of a felony who would be purged, but that is what she wanted done. and despite having the experts there at the table telling her that this is going to create a problem, she went forward with it. so that peace, not mentioned in bush v. gore, because again, the race claims were not a part of that case, but the fact that we andd create a whole image myth about voter fraud based on a pseudo-stolen
election when in fact the people who were in charge were doing things that they knew would cast african-americans off of the ballot is wrong. and we have had to endure this whole myth around voter fraud with no credible evidence of it. our colleagues are always reminding us that you are more likely to be struck by lightning than find a suitable case of voter fraud. prosecutable case of voter fraud. liabilitysibility and for this was laid at the feet of the secretary of state and some other people who were working with her. caroline: rick, i know that you want to address that. and then going to the broader affect. rick: i think the primary lesson that, not lawyers, but political
operatives learned was that, in a close election, the rules of the game matter. what we have seen, it started with partisan secretaries of state. florida has made it worse by making the position appointed rather than subject to the will of the governor. wisconsin is poised to get rid of one of the few nonpartisan election boards in the country. emerged is red state election law and blue state election law. casual voters who were not registered, they tend to be poor, minority voters and tend to vote democratic. in red state election law, premised on exaggerated claims of voter fraud, uc moves to make it harder to register to vote. my statestates, like of california, where you see a democratic majority good for the
state, it is easier to register to vote. this is from the position of nonpartisan election administration. we have our election rules being set by partisans and done in a way that is likely to help the political party that is in power. i think that is problematic. caroline: rick, i want you to step back. you have written on just about every election law case that has come up since. i believe the supreme court itself has only referred to bush v. gore once. and it was clarence thomas. rick: someone called bush v. gore the legal folder marked -- the legal voldemort. whose name shall not be
named. in the lower courts, and initially some courts had given bush v. gore as it will be tension holding some legs. in parts of california, parts of florida where you had punchcard machines, you had a chance where one vote would not count over another. or does the case have no prejudicial value at all? there are all as a theory's out there. for a while, there were some courts making what progressives called lemonade from lemons, taking this opinion and using it to forge greater equality and how voters are treated. there was a 2003 case involving the shelf when you recall
election because punchcard machines in california. it is a good thing that that case wasn't close. not vote ballots did yes or no on whether the governor should be recalled. it looked for a while like it had legs. but then jurisdiction after jurors diction, the circuit shut it down. but now, in the sixth circuit in the last three years, home of ohio, the court has reinvigorated the bush v. gore is the protection, including the distribution of provisional ballot. there's already a case that is pending challenging some of the cutbacks in voting rights in ohio. it could end up in the supreme court where the court will have to address the question. does bush v. gore have precedential value?
i'm reminded that chief justice roberts got on a thee in november 2000 at request of ted cruz, which is isnic now that ted cruz bashing him. but it was ted cruz who call john robertson succumbed out here right away and he did here the now chief -- and he did. the now chief then worked with ben ginsberg and the others on the republican party to craft their argument. has thinking of where he ended up, for example, in shall be county, the ruling that cut back on section 5, not section 2. what kind of blind you see, if and shelbyh v. gore versus county? pamela: the composition of the supreme court at that time of
shelby county and its predecessors are a product of the 2000 election. it is hard to figure out who would have been nominated because three of the justices who had replaced since bush v. gore were voluntary departures from the supreme court. as many of you know, justices seem to be more and more timing those voluntary departures in various ways. very hard to know who would have been present by 2004, but pretty clear i think that coming in 2005, democrats had held the white house even through the 2004 election -- even if republicans had won the 2004 election, john roberts would not have been position to go onto the supreme court. because as a lawyer from private practice, he would not have had the same profile he had as a judge on the d.c. circuit. -- obviously,
different be a very court. we knew in part that he wrote the lower court decision in shelby county upholding the constitutionality of the voting rights act. the chief justices' involvement in voting did not begin with his getting on a plane in 2000. he had been in the justice department in the reagan administration. he was a skeptic of the voting rights act. where the final move had been made in the interim, i think him a apart was the supreme court's retreat that restrictions should be subject to strict scrutiny under the equal protection clause to sort of undue burden standards that they adopted for
the actual right to cast a ballot and have it counted in the indiana crawford case that judith alluded to earlier. and that allows for a great deal more fluidity and a great deal more flexibility, both in the supreme court and in the lower courts on whether to find any particular restriction on the right to vote to violate either the voting rights act, where it comes into play in the question over whether or not a particular law has a tenuous justification and under the fourth team to amendment constitutional right to vote. i think that is worthy bush v. gore -- where the bush v. gore case moves into the more recent cases, by denying that there is a fundamental right of the world and treating that -- right to vote and treating that right is something that needs to be balanced. curt, what kind of
comparisons would you draw? : what jumps out at me is sort of the contradictory argument that i hear from progressives when we are talking about those two cases. one of the complaints that progressives make about bush v. gore is that the supreme court mismanaged something -- i shouldn't say mismanaged -- micromanaged, in their view mismanaged, a matter of state law. preclearance section of the voting rights act, that is all about micromanaging, about jumping in early and negotiating what federal bureaucrats think is acceptable. today,o, i have heard it several of the panelists have said the supreme court's mistake is it did not allow things to
proceed. it jumped in. .hat is what preclearance does preclearance not only doesn't wait for the votes to be counted, it doesn't even wait for the election procedures to be implemented. it is all about jumping in and second-guessing. i'm not going to say which is right and which is wrong, but there is definitely a contradiction. pamela: there is no contradiction there at all. the preclearance regime is the product of the democratic process. it is the process that coniston acted in this law, to say that the core jumping in and claiming a constitutional problem is the same thing as congress saying we think there is a demonstrated problem. and the demonstrated problem is indicated both by the stuff that judith talked about that happened in florida, which is a byte largely not covered preclearance, which is why they could have these purges and why they could change the election laws and the way they did. and on the other hand, most of the vote suppression stuff that
we are seeing today, huge amounts of that not only could be blocked by preclearance, but were blocked by preclearance before the supreme court struck down the formula for preclearance in shall be county. curt: your argument is that the supreme court was interfering with democracy. but that is also the argument in bush v. gore. that it had the constitutional right to be the final word in this case and that the florida supreme court had overruled it. it is exactly the same issue of democracy versus court second-guessing. caroline: we are two minutes before we go to questions. , there is ahelby history about why we had section 5, a robust section 5 and why we needed federal intervention.
we could read lots of books about that if we need to. secondly, when section 5 preclearance happened, the states have the opportunity to provide information about the way in which it will play out. so it's not like there is no due process for a state before a court or a department of justice actually rejects it. saying,not the same as you know, slow down let the state actually get to the point where they counted, they count everything and then go to the courts. it is a very different situation and i think you are obscuring the difference. that let me remind you florida also had the chance -- the florida supreme court also had a chance. it was warned the first time that the legislature's power with regard to electors was andary and it ignored that went ahead and overruled the
legislature again. again, i can make the same point you are making on the other side. caroline: i'm going to let rick jumping here. i think everybody here knows what section 5 is. biting in case, that is part of the voting rights act of 1965 the required certain states, mostly in the south that had a history of discrimination, to get any kind of ballot or electoral change cleared by the justice department or special court before it was enacted. we just all referred to it as section 5. rick: i want to make a brief observation. i think joey fishman from the university of texas pointed this out. if you look at shelby county roberts, if you look at the first line of the mccutchen case, the most recent
case on the campaign finance area, the first sentence is about democracy and about the right of donors to be able to have influence over their representatives and a look into the mind of john roberts. he is offended by the idea that the state might limit money in politics. at he does not seem to have problem with states limiting access to the ballot. joan: does anyone want to jump in one last time? curt: i will just make a quick it is the job is of the states to limit access to the ballot and make the ballot available to those who are eligible to vote. i do not think anyone would disagree it is a balancing act.
you cannot be obsessed with fra ud. hand, you cannot make voting so easy you permit fraud. the states have both roles. like one of those rules is restricting those that are valid. joan: lots of time for questions. that gentleman over there. thank you. >> i was most interested in the discussion of constitutional crisis. i was always interested in the fact the supreme court did not even talk about the constitutional process for deciding who would be president. there is a process. neither the plaintiff or the
raisednt in those cases that issue, that i am aware of. it was never discussed by the court. it seems to me that if the process went through, the florida legislature would ectors, it would go to the house of representatives. why did the court decide it was so important, so prestigious, that it should cut off process called for in the constitution? pamela: there was a process under the 12th amendment for dealing with this. the court felt that the violations of equal protection called on it to step in because there was an individual right at stake. it is not that the court was not
aware of the 12th amendment. richard: i remember saturday morning, having cnn on in california. this is after the supreme court had ordered the recount. judge lewis held a late-night meeting. they were holding up the balance. the next thing you know, supreme court issues a stay. i think about this line in stayce scalia's concurrence. assent prompts sclaia to write a concurrence in which he talks about a cloud over the election from ballots being counted that should that be counted. there could be a reversal potentially by the supreme court. whether you agree or not, what
animated what was going on among conservatives on the court is the fear that gore would have been chosen through the recount gore asked for as the winner. it would have fallen to the supreme court to say the count was no good. that would have precipitated a crisis. the court was trying to avoid illegitimacyular that would come from a president directly reversed by the supreme court. >> there was a fear of crisis. before ir feeling it knew whether i would like or not like the result. i felt like we were hurtling towards a crisis because there were so many different angles. might have worked out democratically, but in theory, it might have dragged out longer.
january 20, i want to point out that courts will often will jump in to prevent chaos. i am reminded of the voter id cases. i can think of at least a couple where the court said, we think procedures are ok, but we are too close to the election at this point. we will take place in the next election. thatan make the argument is not the proper role for the court. that the courts should let things proceed. nott looks like there is enough time to implement things and chaos is getting worse, then jump in. it happens on both sides. i am not going to say whether it is right or wrong. perhaps the supreme court should have let it go further. once theyt is that did jump in, their decision was a possible one. joan: did you want to say
something? or did you have a question? constitutional -- is definition of activism deciding an issue relegated to one branch rightly or wrongly. legislature may well have been voted to award a due for george w.s bush, and that would have gone to congress. the balance will be joint session. as a procedure for voting if there is a challenge, it would be complicated. this might have concerned someone like o'connor. al gore would have presided.
if everyone was involved over what the litigation would be over what the legislature of florida could do, it may well have come down to which ballot as the chose either way presiding officer of the senate. it and shelby county are alike in that they reflect a contempt for congress, whether it is right or wrong. assuming we cannot leave this for congress under the 12th amendment to decide, how to count the ballot. one last point, the notion that we have partisan election it is not similar in the sense that those who are trying to make it easier for people to vote are not as mad as
those trying to make it harder. is not any plausible or fictitious argument about fraud when you do what north carolina on the days ofk early voting. that makes it hard for people who do not have cars to get to the polls. ere, it iso fraud th just a matter of making it harder, something i never thought we would do in this country. joan: go ahead. i certainly do not disagree with everything you said, but i am troubled with the notion of judicial activision being not defering to the democratic branches. curt: it refers to whether there is a basis for the federal government getting involved. many of the supreme court
involve federal courts getting involved with something traditionally thought of as under the state domain. in this case, i think that is a much closer call. i just wanted to make a point about judicial activism. stuart.ld on, >> my name is stored taylor. i have a question for professor hasen. let's say the supreme court had taken a pass and let stand the supreme court -- florida court decision. how does that look to you in terms of its legitimacy and avoiding appearance of i partisan -- a partisan bias?
i do not think the florida supreme court did a good only thelowing over vtes and not the otes to be counted. there should have been a statewide recount. i also think the fact the florida supreme court did not respond to the first case pam talked about earlier made the florida supreme court look like it was not surprising -- respecting the supreme court. but the florida court was thatrung by the theory legislature means only legislature. it cannot include the constitution of the state of florida and any other processes. , the supremem
court decided a case out of arizona, where they rejected a parallel meaning of legislature in the context of initiative. you have an initiative in arizona that establishes a commission that would apply to congress, the court says, legislature does not just mean legislature, it means the legislative process. kennedy voted on that side. what the florida supreme court should have done was it established a standard and say, you know, a uniform standard for accounting ballots. there should have been a statewide recount. i do not know who would have won that. so, i do not think the florida supreme court looks very good. they look just as ideologically driven as the supreme court. joan: yes, sir? >> i have a comment and a
question. on that fateful saturday when the votes were stopped on behalf of the candidate who did not pick a cabinet. i have also been involved in most major recounts over the last 30 years. it has been my opinion and observation that at times, the bush team made a calculated , successful, to some extent, to slow down the county and turn the recount into a soce or appear as a farce the supreme court, if it eventually took it, would be spooked by the counting.
i think if you look at other recounts over the years where you do not have the electoral and thelooming ahead states are allowed to complete andcount, such as the frank komen recount where i was. usuallyly, those are completed to the satisfaction of almost everybody. they are thorough. they took took along, but people toolly feel -- they took long, but people usually feel the outcome was just. what is the opinion on how bush recounts asimpacted opposed to other observations that have been made?
was anay as someone who recount,in the franken we did look at bush v. gore and consider it. but i wonder if you think it has been a good thing for recounts or not had any benefit. that recount took nine months, which we could not afford. the minnesota recount, the franken race. to do it right takes a long time. it was all up on public access tv. partisan a commission and court. the problem is you had maybe seven weeks or less to do it in
a presidential cap -- count. they have tried to develop recount standards in that window of time. the recount itself was done by january 3, i believe. sure, but you would need that too. just very brief observations. there are two ways of ensuring quality in a recount. one is detailed standards. the other is to have all the ballots going through the same person applying a more general standard. those are different mechanisms. different states have different ways of using that. some states have precise rules about which ballots are counted. others send the ballots through a process where all the ones
that are contested are viewed by the same person. is ither observation to me think one of the differences between the strategy of the bush was is and gore lawyers think that the bush lawyers were thinking from the beginning the supreme court would decide the case. their entire strategy was developed with the idea of building the case and framing the case to appeal to justice o'connor and justice kennedy. lawyers think the gore thought initially this case was going to the u.s. supreme court. one of the lessons that came out of this is you need, from the get-go, to be asking yourself, if this goes to the u.s. supreme court, how do we appeal to the median justice by the time it
gets to the supreme court? when ted olsonr and his team asserted the equal protection challenge. curt, a final thing before we answer another question? curt: i would not agree that most people think the minnesota election was decided fairly. i think they are split. knowrepublican lawyers i do not think it was decided fairly. v.terms of recounts, bush gore has been a positive thing. i always thought of a recount as something completely objective. afterwards, i do not think anyone thinks of it that way. objective,it is not i am not just talking about the politics. just that there is a right answer. who's to say what the right standard is for a chad when you
have not specified the standard before him? -- beforehand? it is subjective in the neutral and political sense. i think awareness of that has made recounts be scrutinized s of, increased warines administration, and i think that is a good thing. questions.ted first, do you think that the bush v. gore case has politicized the judicial appointments process? determine who is president of the united states. think supreme you court justices are more or less ,oliticized than local judges
including county judges? my perception is that local judges are far more politicized. allave a winner take judicial accountability system, where scholars like yourself take a look at everything. almost get away with anything at a local level. two questions. i think it depends on what you mean by "politicized." if you mean politics in a parochial sense, then, yes, it is more politicized at the local level. if you mean politicized in the sense of highly ideological, i think it is more so at the federal level because most of those cases are so highly ideological.
as to whether judicial nominations became more politicized, i guess it would be hard for me to believe that given they were already so politicized. some people date it back to bork. that is putting way too much on that nomination. is giving the court so much power and the ability to decide so many issues, much like rick was referring to with justice kennedy, where he feels he has to decide every issue, once you give them that much power, there will be tremendous fighting over it. that goes back more than 15 years. i do not blame bush v. gore for that. richard: i am no expert on public opinion. so i do not know how much bush vs. gore had to do with it.
public opinion polls have been going down, whether that is bush vs. gore or a whole host of things. we are now in a period of time when all the conservatives are republican appointed and liberals are democratic appointed. this is new in the modern era. scalia orhink justice ginsburg wake up in the morning and say, how am i going to help the party? for now you can say, the republican majority did this, or the democratic justices did this. that will further polarize the court. bush versus gore is a rare case where you may see it as helping , but i think that is a big concern. joan: there is somebody in the back. yes?
great. -- i did notering read the actual case. i remember the presidency. bush was the president. was it a class action? was it dismissed for a lack of standing or on the substance? proceduralink it was , so they probably endured to the end, since the voting rights act continued to be reauthorize. what happened with the case? this was bush v. gore. we were addressing bush v. gore, the broader case. themay be talking about
plaintiff against the secretary of state of state, where they were talking about violations they found on the ground. aan: that case was class-action. florida state branches of the naacp. we also had individual plaintiffs from throughout the state who were not able to cast a ballot, all of whom were african-american, living in various counties throughout the state. that case, we did a lot of discovery, but the case was settled on all the claims. joan: time for one last question. you got it. mic? there it is. thank you. >> hi. one pointested in that was made earlier. first, a statement made by
justice scalia during oral arguments in the palm beach county case, which is citizens do not have a right to suffrage. gore, in the bush v. opinion that citizens do not have a right to vote for president of the united states, and what that means for us as citizens since the case has been decided. what, if anything, we can do about this reality that we do not have a right to vote. joan: do you want to start? isela: the backdrop to this the supreme court, in a case that upheld the exclusion from women, declared itself unanimously of the opinion that a constitution does not confer a right of suffrage on anyone. people the right
to vote on account of race, gender, or inability to pay a poll tax. as is true ofnk, a number of rights not enumerated in the constitution , from longe do practice, have a constitutional right to vote. a different supreme court would recognize that and enforce it in the way it did when it held in harper that the virginia poll tax was no good. for a lot of this is changing the public discussion about the right to vote. that changes who gets elected. who gets elected determines who gets confirmed for the supreme court. that is why elections have consequences. the longest consequence of bush is where we find ourselves in the current political moment.
bush, i believe we are on the course to freedom and democracy, but that could change. [laughter] going back to what pam said earlier. judith: about how courts have treated the so-called right to vote and balancing the rights of vote,st and the right to not applying strict scrutiny in cases regarding election matters awe actually advocate constitutional amendment for a right to vote. there is a bill that was introduced by congressman ellison to establish an amendment. as a follow-up to what congressman jesse jackson junior have been doing for a number of
years, introducing such an amendment. we think that is important. we need to tighten the review that the courts have and also establish national standards around voting. third is to reimagine what it means to participate in our democracy. we think we have to fix this bush because voters, since v. gore, it has eviscerated the way in which courts treat interests of voters. what we have had to do, and we have filed several lawsuits against voter id. we are trial lawyers for the and in the casecp against north carolina. we often find that the courts give so much weight to the state in the interest of it costs too much or is administratively
inconvenient. endso we think we have to this question around the right to vote once and for all and amend the constitution. too often, we are having to look at state constitutions. in pennsylvania, we have been fighting against voter id. we need to fix the federal constitution. joan: we have one minute before the red light goes on. certainly, bush v gore and going back to reynolds, the supreme court made it clear that the can choose whatever method it wants for electric -- electors. when you talk about constitutional right to vote, would you see that as overriding reynolds and bush v. gore?
i do not support a constitutional right to vote. i think it would be counterproductive. i would say the solution to more voting is political agitation. and fighting for voting rights state-by-state. joan: thank you, everyone, first thing. -- for staying. we will see you at the 20th anniversary. [captions copyright national cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> you are watching american history tv, all weekend, every weekend, on c-span3. like us on facebook at c-span history. election cycle, we are reminded how important it is for citizens to be informed. >> c-span is a home for political junkies and a way to
track the government as it happens. >> it is a great way to stay informed. >> there are a lot of c-span fans on the hill. >> there is so much more that c-span does to make sure that people outside the beltway know what is going on inside it. each week, american artifacts takes viewers into archives, museums, and historic sites around the country. next, historian emeritus don ritchie takes us inside the dirksen building. we learn about its place in history and its namesake, dirksen. and -- rick century, the9 demands of the government were smaller than today. as demands grew, as government morices group,