Men in Black (32 page)

3.
“Any candidate whose name appeared on the ballot, any political committee that supports or opposes an issue which appeared on the ballot, or any political party whose candidates’ names appeared on the ballot may file a written request with the county canvassing board for a manual recount. The written request shall contain a statement of the reason the manual recount is being requested.” Fla. Stat. §102. 166(4)(a) (2000). “Such request must be filed with the canvassing board prior to the time the canvassing board certifies the results for the office being protested or within 72 hours after midnight of the date the election was held, whichever occurs later.” Fla. Stat. §102. 166(4)(b) (2000).

4.
Fla. Stat. § 102. 166(6) (2000).

5.
Fla. Stat. § 102. 166(7)(a) (2000).

6.
Fla. Stat. § 102. 166(4)(b) (2000).

7.
Fla. Stat. § 102. 112(1) (2000).

8.
3 U.S.C. 5 (2000). The citizens of the United States do not directly choose their president and vice president (so much for the Democrats’ mantra that Gore won the majority of the votes cast). The president is chosen by the electoral college, which is comprised of electors (equal to the number of senators and representatives from each state) chosen by the state legislatures. U.S. Constitution, Article II, § 1, Cl. 1–4. If no candidate for president receives a majority of the electoral college (half plus one, or 270 votes), the U.S. House of Representatives then votes by state delegations from among the top three candidates for whom the electoral college voted. U.S. Constitution, Amendment XII. If no candidate for vice president receives a majority of the electoral college, the Senate chooses one (by a vote of the individual senators). Ibid. The electoral college is important because it makes candidates consider smaller states in order to achieve the necessary 270 electoral votes. For example, in 2000, smaller states such as Minnesota and Wisconsin received significant attention from Gore and Bush. If there wasn’t an electoral college, candidates would only focus on large population areas such as New York or Los Angeles. Less populated regions, such as the Midwest, could be ignored. Congress sets the date a presidential election will be held around the country (in 2000 that date was November 7) as well as the date the electoral college members will meet (in 2000 that date was December 18). See U.S. Constitution Article II., § 1. Cl. 1–4; 3 U.S.C 7 (2000); and U.S. Constitution Article II.

9.
3 U.S.C. 11, 12 (2004).

10.
U.S. Constitution, Article II.

11.
Tony Sutin, “Presidential Election Law,” Jurist Legal Intelligence. Available at jurist.law.pitt.edu/election/electiontime.htm.

12.
Fla. Stat. § 102. 141(4) (2000).

13.
Sutin, “Presidential Election Law.”

14.
“How we got here: A timeline of the Florida recount,” CNN.com, December 13, 2000. Available at www.cnn.com/2000/ALLPOLITICS/stories/12/13/got.here/index.html. Complicating the issue of tabulating Florida’s ballots was the fact that several counties used paper punch card ballots. Voters used a stylus to punch out squares next to candidates’ names to cast their votes. Due to the age of some of the equipment used by several counties, as well as poorly conceived designs for some ballots and voter mistakes, a small percentage of ballots could not be read by tabulating machines. In addition, some voters chose not to vote for one or more offices (including president) on the ballot, while casting votes for other offices. The small percentage of votes that were thus “spoiled” in Florida in 2000 was not unusual when compared with past Florida elections or with elections in other states. The recount regulations required by Florida’s election laws enumerated specific procedures for both manual and machine recounts to minimize the number of uncounted ballots.

15.
Fla. Stat. § 102. 166. (4)(a) (2000).

16.
Fla. Stat. § 102. 166(5) (2000).

17.
“How we got here: A timeline of the Florida recount.”

18.
Ibid.

19.
Touchston v. McDermott
, 234 F.3d 1133 (11th Circuit, 2000);
Palm Beach County Canvassing Bd. v. Harris
, 772 So. 2d 1220 (Fla. 2000);
Siegel v. LePore
, 120 F. Supp. 2d 1041 (D. Fla. 2000).

20.
Fla. Stat. § 102. 111 (2000).

21.
Fla. Stat. § 102. 112 (2000).

22.
Jackie Hallifax, “Deadline Looms As Recount Continues,” Associated Press Online, November 13, 2000.

23.
Fla. Stat. § 102. 111 (2000).

24.
“How we got here: A timeline of the Florida recount.”

25.
Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1227 (Fla. 2000).

26.
“Judge finds Harris acted with discretion in rejecting manual recounts,” CNN.com, November 17, 2000. Available at www.archives.cnn.com/2000/LAW/11/17/harris.discretion.ruling.02. pol/. McDermott v. Harris, No. 00-2700, unpublished order at 2 (Fla. 2d Cir. Ct. Nov. 17, 2000).

27.
Palm Beach County Canvassing Bd. v. Harris
, 772 So. 2d 1220, 1227 (Fla. 2000).

28.
Touchston v. McDermott
, 234 F.3d 1130 (11th Cir. 2000).

29.
Ibid., 1132.

30.
Palm Beach County Canvassing Bd. v. Harris
, 772 So. 2d 1220, 1240 (Fla. 2000).

31.
Linda Greenhouse, “Counting the Vote: The Supreme Court; U.S. Supreme Court to Hear Florida Recount Case,”
New York Times
, November 25, 2000.

32.
Rick Bragg and Lynette Holloway, “Counting the Vote: The Recount; Tempers Flaring Under Pressure,”
New York Times
, November 26, 2000.

33.
Transcript, “Political Headlines,” Fox Special Report with Brit Hume, November 29, 2000; Bill Sammon,
At Any Cost: How Al Gore Tried to Steal the Election
(Washington, D.C.: Regnery, 2001), 164–65.

34.
Sammon, 164–65.

35.
Todd J. Gillman, “Palm Beach struggles to reconcile vote discrepancies; County delay raises concerns,”
Dallas Morning News
, November 29, 2000.

36.
Jay Weaver, “Gore Readying New Venture in State Court Suit; Will Claim Recount Invalid Without Dade,”
Miami Herald
, November 25, 2000.

37.
“Jeb Bush Certifies Florida Win,” Associated Press Online, November 27, 2000.

38.
Scott Shepard, “Don’t count me out, Gore says: He insists Bush win not final,”
Atlanta Journal-Constitution
, November 28, 2000.

39.
David Barstow, “Contesting the Vote: The Florida Legislature; Lawmakers Move Closer to Special Florida Session for Naming Bush Electors,”
New York Times
, December 1, 2000.

40.
Steve Lash, “Election 2000; High drama lands in high court; In historic session on nation’s future, jurists break custom while grilling lawyers for Gore and Bush,”
Houston Chronicle
, December 2, 2000.

41.
Mark Z. Barabak and Richard A. Serrano, “Decision 2000/America Waits; Rulings Narrow Gore’s Options,”
Los Angeles Times
, December 5, 2000.

42.
Gore v. Harris
, 772 So. 2d 1243, 1247 (S. Ct. Fla. 2000).

43.
John Pacenti, Brian E. Crowley, and George Bennett, “Can Hand Counts Offset Bush’s 930-Vote Lead?”
Palm Beach Post
, November 19, 2000.

44.
Gore v. Harris
, 772 So. 2d 1243, 1247 (S. Ct. Fla. 2000).

45.
Ibid., 1262.

46.
Ibid., 1273.

47.
Ibid., 1263–64.

48.
Ibid., 1269.

49.
Bush v. Gore
, 531 U.S. 1046 (2000).

50.
“How we got here: A timeline of the Florida recount.”

51.
Bush v. Gore
, 531 U.S. 98, 109 (2000). Federal law contains a “safe harbor” provision, which provides that a state’s selection of electors “shall be conclusive, and shall govern in the counting of electoral votes” provided the electors were chosen under laws that were “enacted prior to the day fixed for the appointment of the electors.” 3 U.S.C. § 5 (2000).

52.
Bush v. Gore
, 531 U.S. 98, 104-05 (2000), citing
Harper v. Virginia Bd. of Elections
, 383 U.S. 663, 665 (1966).

53.
Bush v. Gore
, 531 U.S. 109.

54.
Al Gore, “Campaign 2000: Vice President Gore Delivers Remarks,” December 13, 000. Available at www.cnn.com/ELECTION/2000/transcripts/121300/t651213.html.

55.
U.S. Constitution, Article II, § 1, Clause 2.

56.
Bush v. Gore
, 531 U.S. 111.

57.
Mark R. Levin, “What We have Wrought,”
National Review Online
, December 14, 2000. Available at www.nationalreview.com/comment/comment121400g.shtml.

58.
Sandy McClure and Peter Eichenbaum, “Democrats Plan to Replace Him on Ballot, GOP objects to opponents’ maneuvering to retain control of U.S. Senate,” Asbury Park Press, October 1, 2002.

59.
New Jersey Democratic Party v. Samson
, 175 N.J. 178, 814 A.2d 1028, 1036 (2002), cert. denied sub nom.
Forrester v. N.J. Democratic Party, Inc.
, 537 U.S. 1083 (2002).

60.
Southwest Voter Registration Education Project v. Shelly
, 344 F.3d 914, 917 (9th Cir. 2003).

61.
Ibid.

62.
Scott Wyman, “Potential For Election Nightmare Still Looms; Concerns Mount on Whether All Eligible Voters Will Get Chance,”
Sun-Sentinel
, October 23, 2004; Anne Gearan, “Lawyers prepare for another deadlock, more recounts or a trip to the Supreme Court,” Associated Press, September 20, 2004; Kim Cobb and Patty Reinert, “An army of lawyers stands by for Nov. 2,”
Houston Chronicle
, October 17, 2004; George Bennett, “Judge Rules Against Voting Paper Trail,”
Palm Beach Post
, October 26, 2004; David B. Caruso, “Republicans Sue to Stop Prisoners from Voting,” Associated Press, November 1, 2004.

63.
U.S. Constitution, Article II.

64.
David Barstow, “Contesting the Vote: The Florida Legislature; Lawmakers Move Closer to Special Florida Session for Naming Bush Electors,”
New York Times
, December 1, 2000.

65.
“Jeb Bush Certifies Florida Win,” Associated Press Online, November 27, 2000. An interesting question would have arisen if the legislature had intervened, selected the Democratic slate of electors, and then ordered Jeb Bush to rescind his earlier certification. Technically, he could ignore the direction of the legislature claiming that federal law gave him the sole authority to certify electors, regardless of how they were selected by the legislature. I suppose the legislature could then send its own certification to the federal government, and the ballot challenge procedures in Congress would kick in. The legislature could then impeach Jeb Bush, if it chose, to punish him for failing to follow their directions. The question this poses, though, is that, even though the legislature is the only body authorized by the Constitution to select presidential electors, could the executive of a state ignore the will of the legislature by certifying a slate of electors in contravention of the will of the legislature?

66.
Any challenge to electors in Congress must be approved by a majority of both houses of Congress (meeting separately). 3 U.S.C. 15 (2000). The Republicans had a majority in the House of Representatives of 221 to 212 (with two independents). The Senate was split 50–50 with the vice president (Al Gore) giving the Democrats a voting majority. So a challenge to Florida’s slate of Republican electors would not have succeeded.

67.
“It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast…” 3U.S.C. 6 (2000).