Saturday, May 24, 2008

Zelden on Why We Need to Take the 2000 Election and the Ruling in Bush v. Gore Seriously

The Case that Must Not Be Named: Why We Need to Take the 2000 Presidential Election and the Ruling in Bush V. Gore Seriously is a recent article by Charles L. Zelden, Farquhar College of Arts and Sciences. It appears in the Oklahoma City University Law Review (2007). Here's the abstract:
Bush v Gore. Just whisper the name of the case that ended the 2000 presidential election and you are likely to get one of three responses: A yawn of active indifference (not that again), teeth-grinding anger at the Supreme Court and the presidency of George W. Bush (let me tell you . . .), or an eye-roll of frustration (Get over it already, Bush won!). Two things tie these disparate responses together - their shared disdain for the event and their tendency to treat the case in only the most superficial, dismissive, and unwelcoming ways.

Sadly, such has become the norm when Bush v. Gore is discussed - if it is discussed at all. In many ways and on many levels, Bush v. Gore has become - as Adam Cohen of the NYT put it - the case that must not be spoken of. The anger and frustration over the Supreme Court's ruling (and/or over the reactions to this ruling) lie too deep for the sort of sober reflection a case of this importance deserves. So most of us just ignore the whole event as a bad memory.

Such willful historical amnesia about a pivotal electoral and constitutional crisis resolved by an unprecedented and controversial Supreme Court decision is a mistake, however. The events of 2000 were, to use Thomas Jefferson's famous description of the controversy over slavery, a firebell in the night - a warning that bad things were happening and that, if not faced and responded to, would produce catastrophic results. The content of this warning, however, was not about an out of control Supreme Court or the hubris of judicial overreach. Rather, at its core, the lessons of Bush v. Gore are about a broken electoral system and the dangers this poses to American democracy.

This article, based on a speech given at the Oklahoma City University Law School, explores some of the lessons we should be drawing from the events of November and December 2000. It sets out the problems exposed by events in Florida and shows how these problems have continued uncorrected to the present and ends with a discussion of potential reforms to fix what is broken.
In the year after the 2000 election, there was much written about it, but this was all eclipsed in the aftermath of September 11, 2001 -- just as a spate of Bush v. Gore books and articles was coming out. Perhaps the juxtaposition of these historical moments explains some of the absence of discussion that Professor Zelden experiences. My favorite works in that early literature, though not on Zelden's important point about electoral reform, are Howard Gillman, The Votes that Counted: How the Court Decided the 2000 Election (Univ. of Chicago Press, Oct. 2001), and Mark Tushnet, Renormalizing Bush v. Gore: An Anticipatory Intellectual History, Georgetown Law Journal (Nov. 2002).