Thursday, December 9, 2010

Hasen on Election Hangover: The Real Legacy of Bush v. Gore

Richard Hasen, Loyola Law School (Los Angeles), author of the indispensable Election Law Blog, has an essay in Slate for the upcoming 10th anniversary of Bush v. Gore:  Election Hangover: The real legacy of Bush v. Gore
Photo by Keith Stanley.  Posted with permission (thank you!).
What's the central legacy of Bush v. Gore, which has its 10th anniversary next Sunday? Republicans see the Supreme Court stopping a lawless recount, while Democrats see a lawless court stopping a legitimate recount. Ten years later, commentators like Jeffrey Toobin protest that Bush v. Gore brought dishonor on the Court. But the Supreme Court's public legitimacy has not suffered.

The real lesson of the Florida fiasco (not merely Bush v. Gore) is about something else: the undermining of the public's faith in the fairness of American elections. This has triggered an ongoing war over their administration.

A straight line runs from Bush v. Gore through a series of election controversies in the past decade. We can walk it from the 2003 California gubernatorial recall circus with its 21 lawsuits to the "armies of lawyers" dispatched to battleground states in the elections of 2004 to the controversies over voter-identification laws. Next, bogus organizations made unsubstantiated claims of voter fraud. When the Department of Justice investigated, they found virtually none. Still, in 2008 John McCain ranted that the group ACORN was "maybe perpetrating one of the greatest frauds in voter history." That election also featured the interminable Coleman-Franken election recount. This time around, disputes about how to spell "Lisa Murkowski" on write-in ballots are playing out in Alaska's recount of its Senate race.

The common thread is hyperpartisan controversy. Before 2000, candidates and the public were both quick to accept official election results even in close elections. Bush v. Gore taught political operatives and everyone else that there are significant problems in how we administer our elections and that when contests are close enough to be within the margin of litigation, it makes sense to fight on rather than to concede...
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