April 14, 2014 | Volume XXI, Issue 14

Constitutional scholar dissects Florida’s Bush-Gore “extravaganza”

Published: March 30th, 2009

Category: News

A handful of judges, several former editors-in-chiefs of the Florida Law Review, and a room full of law school students overfilled the Chesterfield Smith Ceremonial Classroom on March 24.

Renowned constitutional scholar Akhil Reed Amar, the Sterling Professor of Law and Political Science at Yale, spoke at the 28th Annual Florida Law Review Dunwody Distinguished Lecture in Law. The lecture was established by the law firms of Dunwody, White and Landon, P.A. and Mershon, Sawyer, Johnston, Dunwody and Cole and the U.S. Sugar Corporation in honor of Elliot and Atwood Dunwody.

The topic of Amar’s lecture, titled “Bush, Gore, Florida, and the Constitution,” dealt with the problems behind what he referred to as “the Bush-Gore Florida extravaganza of 2000.” He said since 2000 scholars from across the spectrum have weighed in on the statutory and constitutional issues dealing with this case.

“At this late date, now that all the shouting here in Florida has subsided and so many scholarly assessments are already in print, some of you may quite reasonably be wondering whether there are any new things left to say about the Bush-Gore episode,” said Amar, who received the DeVane Medal, Yale’s highest award for teaching excellence in 2008. “I think there are.”

Throughout the lecture, Amar discussed different sections of the Bush-Gore debacle, including the courts and the Constitution, the role of the legislature, equal protection, voter intent, and reform. He used humor and fact to express to the audience his views on the case and explained who he felt was at fault. In his opinion, the fault rested in the arms of the U.S. Supreme Court, not the Florida Supreme Court.

Amar drew a comparison during the lecture between America’s favorite pastime and the process of voting.

“For decades if not centuries, American voters have been asked to put their “X” marks in boxes next to candidate names, and human umpires have had to judge if the “X” is close enough to the box to count,” Amar said. “On election day, different umpires officiating in different precincts have always called slightly different strike zones. If these judgments are made in good faith and within a small zone of close calls, why are they unconstitutional? If they are unconstitutional, then every election America has ever had is unconstitutional.”

He said the idea of voter intent was an important factor in this case. Because of voting mechanisms such as butterfly ballots, many voters were left confused in the 2000 election process. For those that weren’t confused, he said the strategic route was probably used.

“Think first about the election. Sometimes, a voter might sensibly cast a vote for someone who is not in fact the voter’s true first choice,” Amar said, “Via a strategic vote, a voter might well vote for candidate A, even though she truly prefers candidate C—because of sincere vote for C may increase the odds that her least favorite candidate, B, might win. Thus, in Florida 2000, many voters strategically voted for Al Gore, even if they sincerely preferred Ralph Nader, because they understood that a sincere vote for Nader would make it more likely that George W. Bush would in fact prevail.”

“And to those who actually did cast their votes for Nader, I ask: ‘What were you thinking,’” he said, drawing many laughs.

Ending his lecture, Amar said he believed that election reform should be a high priority and urges the people to do something about it.

“I urge all the persons in this room, and all the persons who have occasion hereafter to read this lecture in the pages of the Florida Law Review, to make election reform in Florida—heck, in America—a priority,” Amar said. “If all of today’s listeners and tomorrow’s readers do so, we shall have good reason to hope that when one of you stands here at this podium in the not-to-distant future—as, say, the Dunwody Lecturer of 2019—you will be able to say to your audience, with truth in your voice and a smile on your lips, that the right to vote has made great strides in the new millennium.”

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