Breaking the Deadlock
The 2000 Election, the Constitution and the Courts
By Richard A. Posner
Princeton University Press
266 pgs., $24.95

Answering the Supreme Court's critics

By Steven Martinovich
web posted August 20, 2001

If the winner writes history, the 2000 election deadlock has been the almost sole province of the loser. Lawyer/authors like Alan Dershowitz and Vincent Bugliosi have provided their two cents of commentary and argued that the U.S. Supreme Court's decision was little more than a legal coup d'etat which stole the presidency from the American people, or as Dershowitz argued, the court's majority let its desire for a particular partisan outcome have priority over legal principles.

Au contraire, argues Richard A. Posner, Seventh Circuit U.S. Court of Appeals judge. Not only did the high court make a legally defensible decision when it stopped the recounts, the decision was sound because it spared Americans from a protracted and unprecedented constitutional crisis and from a temporary Lawrence Summers presidency.

Posner undertook the arduous task of explaining the problems in Florida which lead to the deadlock and defending the Supreme Court in the recently released Breaking the Deadlock: The 2000 Election, the Constitution and the Courts. In it, Posner makes conclusions that aren't likely to please either side and recommendations that will likely never be acted upon.

Posner asserts that a majority of Florida voters probably had intended on voting for Al Gore but a confluence of factors - a poorly designed ballot chief among them - saw thousands of people, mostly African-Americans and recent immigrants, either vote for someone else or ruin their ballots. After Election Day, the problems only grew larger thanks to state election law that actually hindered electoral officials and a Florida Supreme Court that made some constitutionally questionable decisions.

Of course, that mess neatly dovetailed the legal wrangling ("hydra-headed, complex and intricate" as he describes it) by the Gore and Bush teams. While he mildly rebukes both teams of lawyers for mistakes, such as legal strategies by the Gore team which essentially ate up the one thing he didn't have a lot of: time, he generally gives them good marks. Both teams performed well given the pressure of time and the lack of electoral law experience

Posner saves his harshest words for the legal analysts who crowded the airwaves (at times it almost seems like he wants to name names - Dershowitz perhaps) during and after the deadlock. Most, he writes, were constitutional experts who didn't know the Constitution very well ("...they are like Talmudists who have forgotten the Bible itself") and what they did know came from previous Supreme Court decisions. Because of the unprecedented nature of the 2000 wrangling, Posner asserts, that meant they essentially didn't know what they were talking about and only whipped up more hostility.

The most important areas of the book, however, deal with the decisions made by the Supreme Court and why Posner believes they are both defensible and pragmatic. Although the decisions raise the spectre of further judicial activism - something that should give conservatives pause and embolden liberals seeking remedy in the courts in the future - Posner maintains had the selection of president moved to Congress, the aftermath would have been even bitterer. The Supreme Court essentially traded some of its short-term prestige for peace. Whether it was ultimately the right decision is one for future historians to argue.

Posner ends Breaking the Deadlock with voting reforms - both constitutional and otherwise - to avoid future deadlocks. Among them, he argues that the potential for runaway electors - those pledged to one candidate but vote for another - be eliminated by requiring electors in a state to vote for the candidate chosen by the voters, a rewriting of election codes be undertaken, and some $583 million be spent deploying new voting technology.

Ultimately, Posner's success probably depends little on his analysis and conclusions and more on who the reader supported in November and although his prescriptions for election reform are voter friendly, it's doubtful they will ever see the light of day because of the self-interest of incumbent politicians afraid of something that may topple them. In the end, Posner's book is much like the Supreme Court's decisions - it's logically defensible but will be ignored in favor partisan attempts at scoring cheap points.

Steven Martinovich is a freelance writer and editor of Enter Stage Right.

Buy Breaking the Deadlock: The 2000 Election, the Constitution and the Courts from Amazon.com for only $17.46 (30 per cent off)

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