David Zarefsky, professor of argumentation and debate at Northwestern University, appeared at Vilas Hall Thursday to evaluate the controversial decision resulting from the Bush v. Gore U.S. Supreme Court Case in 2000.
Zarefsky said the Supreme Court’s majority decision to reverse the Florida Supreme Court order for a manual recount of votes was a failure of judicial argument. He also said that the concurring opinion that expands upon it, though generally regarded as a more elegant judicial argument, is also lacking.
The Court decided by a majority that the Equal Protection clause of the 14th Amendment to the United States Constitution was violated by the recount process. The 14th Amendment specifies that all persons must have equal protection under the law.
The Court’s ruling said the Equal Protection clause was violated by the inconsistent vote-counting methods used and lack of an overseeing judicial officer during the recount process.
Zarefsky said the Equal Protection clause had never been used to invalidate inconsistent ballot-counting processes in the past.
“The ‘Equal Protection’ part of the [court’s decision] is a sham,” Zarefsky said.
Zarefsky also said that the decision is at odds with Article II of the U.S. Constitution, which allows state governments to choose how they perform presidential elections.
The concurring opinion of several Supreme Court justices agrees with the majority decision and expands on why the Florida recount should have been reversed. The opinion stated that by ordering the recount, the Florida Supreme Court usurped the Florida state Legislature’s power to choose how elections are held.
The concurring opinion also stated that delaying the selection of electoral appointments in Florida violated the Safe Harbor provision of federal electoral law. The Safe Harbor provision states that electors must be chosen by a specified date.
Zarefsky said the Safe Harbor provision has been violated in the past by several states and this did not prevent their electoral votes from being counted.
Some supporters of the Supreme Court decision believe the court’s actions were necessary because of the potential of affairs to go awry if the presidential election remained undecided. If the court had not reversed the recount, the office of president would have remained uncertain, and a national crisis could have ensued.
Conversely, Zarefsky said Florida would have been able to work the situation out on its own. He also opined that the Court did not have a clear choice in the matter.
“I cannot imagine a decision that they could have come up with that would not have been controversial,” Zarefsky said. “But the decision not to take the case also would have been.”
