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| Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts | 
 enlarge | Author: Richard A. Posner
Publisher: Princeton University Press
Category: Book
List Price: $37.50
Buy Used: $3.07
You Save: $34.43 (92%)
New (7) Used (26) Collectible (2) from $3.07
Avg. Customer Rating:  24 reviews
Sales Rank: 71142
Media: Hardcover
Number Of Items: 1
Pages: 264
Shipping Weight (lbs): 1.4
Dimensions (in): 9.5 x 6.4 x 1
ISBN: 0691090734
Dewey Decimal Number: 324.9730929
EAN: 9780691090733
ASIN: 0691090734
Publication Date: July 1, 2001
Availability: Usually ships in 1-2 business days
Condition: A great book in like new condition that was an ex.-lib. book with usual stamps and stickers, pages bright and clean, dust jacket covered with mylar plastic. FREE TRACKING in US and email to you when shipped. Inquires welcomed and we want your complete satisfaction!
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Product Description
The 2000 Presidential election ended in a collision of history, law, and the courts. It produced a deadlock that dragged out the result for over a month, and consequences--real and imagined--that promise to drag on for years. In the first in-depth study of the election and its litigious aftermath, Judge Posner surveys the history and theory of American electoral law and practice, analyzes which Presidential candidate ''really'' won the popular vote in Florida, surveys the litigation that ensued, evaluates the courts, the lawyers, and the commentators, and ends with a blueprint for reforming our Presidential electoral practices. The book starts with an overview of the electoral process, including its history and guiding theories. It looks next at the Florida election itself, exploring which candidate ''really'' won and whether this is even a meaningful question. The focus then shifts to the complex litigation, both state and federal, provoked by the photo finish. On the basis of the pragmatic jurisprudence that Judge Posner has articulated and defended in his previous writings, this book offers an alternative justification for the Supreme Court's decision in Bush v. Gore while praising the Court for averting the chaotic consequences of an unresolved deadlock. Posner also evaluates the performance of the lawyers who conducted the post-election litigation and of the academics who commented on the unfolding drama. He argues that neither Gore's nor Bush's lawyers blundered seriously, but that the reaction of the legal professoriat to the litigation exposed serious flaws in the academic practice of constitutional law. While rejecting such radical moves as abolishing the Electoral College or creating a national ballot, Posner concludes with a detailed plan of feasible reforms designed to avoid a repetition of the 2000 election fiasco. Lawyers, political scientists, pundits, and politicians are waiting to hear what Judge Posner has to say. But this book is written for and will be welcomed by all who were riveted by the recent crisis of presidential succession.
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| Customer Reviews: Read 19 more reviews...
 Every vote must count? What's a "vote" anyway? February 26, 2008
8 out of 10 found this review helpful
Judge Richard Posner performs an invaluable service by cutting through the Cherminsky and Sunstein left-wing legal clutter surrounding Florida Election 2000. Judge Posner delivers clear legal analysis that is still accessible to the educated layperson. His overall conclusions: the Florida vote was fair, the Florida supreme court was partisan, and the U.S. Supreme Court was as well, although it had practical reasons for being so. Specific points include:
* First and foremost, Posner correctly places most of the blame for the fiasco where it's most deserving, on the Florida supreme court. To those who complain of judicial politicization of the U.S. Supreme Court, just remember where it began: with seven Democratic Party hacks in robes in Tallahassee. Posner slams the Palm Beach County Canvassing Board v. Harris decision (both the original and on remand) several times. Highlights include:
>>> The Florida court used inexcusably poor reasoning and logic in saying that a voter's error in completing a punch card ballot is a form of "error in vote tabulation" (pp 95, 116, 122). This reasoning is a violation not just of the plain meaning of F.S. 102.166(5) (2000), but also a violation of common sense. As Posner notes, no allegation was ever made of an error in a punch card reader (pp 62, 86).
>>> The court also created a false dilemma by saying that the statute allowing a protest for seven days after the election conflicted with the overall seven-day deadline to certify returns (p 105). Posner correctly points out that (a) if a candidate were so stupid as to wait for seven days before protesting that "the losing candidate has himself to blame for not acting faster," (b) in any event, such a delay in protest did not in fact occur with Gore so the court never should have addressed the issue in the first place and (c) a recount to review an error in the vote tabulation machines (as opposed to a review of the vote itself) could be completed within the time frame set forth in F.S. 102.166 (2000), so the court only found this dilemma by misinterpreting what an "error in the vote tabulation" was in the first place. See F.S. 102.166(3)(a) (2000).
>>> The court used a vague state constitutional declaration of "power is inherent to the people" (pp 100, 104-107) to ignore specific statutory language directing the Secretary of State to make determinations regarding election matters as set forth in F.S. 97.012 (2000), in order to give Gore more time than he was authorized under the Florida statute. By doing so, the court was not only usurping legislative power by changing the plain words of the statute, it was also probably violating Art. II Sec. 2 cl. 2 of the Constitution (pp 127, 153, 155).
>>> The court ignored elemental principles of statutory construction when examining F.S. 102.112 (2000) (the Department of State *may* ignore untimely returns) and F.S. 102.111 (2000) (the DOS *shall* ignore untimely returns). It is a common understanding in the legal field that when two statutes have only a potential conflict, a court is to interpret them so that they do not. In this case, the Secretary of State acted in a way that created no conflict (she ignored late returns) therefore there was no need to claim a contradiction, then leverage that supposed contradiction into giving Gore 12 more days.
>>> Recapping, Posner points out the obvious: "The U.S. Supreme Court was criticized for intervening when it knew what effect its intervention would have on the outcome of the election. But it would not have intervened had the same principle discouraged the Florida supreme court from intervening when it knew that the effect of its intervention could only be to increase the likelihood that Gore would become president" (p 160).
Other points Posner brings out include:
* The hypocrisy of Democrats proclaiming "every vote must count" while simultaneously (a) trying to disenfranchise Seminole and Martin County voters who did not have voter ID numbers due to a computer glitch (pp 98-99), (b) requesting a recount only in four counties (why not all? Shouldn't every vote count?) and (c) requesting a recount of only undervotes, not overvotes (does every vote count or not?).
* The standard to review voters' intent on punch cards that was employed by the Democrat-run Broward Canvassing Board was indefensible as a matter of law and common sense (pp 58-59, 124). The standard, which consisted of a dimpled chad, a mark or even an indentation next to the chad, supposedly was good enough to determine voter intent. Posner points out that indentations could arise from the card being passed through the machine or by being bent during handling, and that a dimpled chad could arise from voters starting to vote but changing their minds after realizing that they were voting for the wrong person. The statutory standard, even after the Florida supreme court butchered the statute, is whether there is "a clear indication of the intent of the voter." F.S. 101.5614(5) (2000). How can anyone with a straight face say a mark or indentation alongside a chad, or even a dimpled chad, is a "clear indication"? Let's not be silly. The sheer outrageousness of such a biased, subjective and manipulable standard is, in Posner's opinion, why David Boies never suggested it as a standard in his legal maneuvering (p 195).
On this point Posner alludes to something (p 131) but is too diplomatic to say it explicitly: the Broward Canvassing Board could very well have altered punch cards under its standard to make a card look like a Gore vote. For example, a Democrat operative handling the punch card could press his fingernail on the chad or alongside it to make it look like a stylus had marked it. This could be done very subtly and even someone nearby would not be able to observe the fraud. Would you put it past the Democratic operatives to do something like that? I wouldn't.
* Bush v. Gore should have been decided on Art. II Sec. 1 cl. 2 grounds (i.e., the specific grant of authority in the Constitution that directs state legislatures to appoint its electors), and not equal protection grounds that ultimately decided the case.
* The U.S. Supreme Court voted 7-2, not 5-4, that the Florida supreme court's mandate for a standardless recount was unconstitutional (pp 127, 216). The Supreme Court only split 5-4 on whether enough time existed to have the Florida supreme court order a recount conforming to a constitutional standard (p 136).
* The U.S. Supreme Court did not command Congress to count Florida's electoral votes. Congress, had it wished, could have refused to count them (p 185). The Florida state legislature could have determined not to seat them. The U.S. Supreme Court did not select a president. Electors did and Congress let them.
* Posner calls out liberal law professors and constitutional scholars on their inconsistency on judicial activism. "There are respectable schools of jurisprudence according to which Bush v. Gore could be shown to be unprincipled, even usurpative. But can liberals enroll in any of these schools without repudiating much of the constitutional law forged by the Supreme Court in the Warren and Burger eras? I don't think so" (p 189).
Side note 1. To a certain extent this book, and the Bush v. Gore decision, have been buttressed and confirmed by later events. First, a consortium of mainstream media newspapers, hardly a group favorable to Bush, concluded after tabulating Florida ballots over a period of months that had Gore gotten his way legally in Palm Beach v. Harris, Bush would still have won (NYT, Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote, Nov. 12, 2001). Second, the disenfranchisement of Michigan and Florida voters by the Democratic National Committee in their 2008 primaries shows that the concern Democrats had in 2000 about disenfranchisement was, how to put it -- "tactical." (That and Nevada Democratic caucus rules that allow the candidate with fewer votes to actually receive more delegates -- now where have we heard about that problem before? Hmmm.) Third, and perhaps most importantly, Bush won reelection in 2004 with 51% of the popular vote -- a slim mandate but a mandate nonetheless. If the American voters had truly been as outraged at a "stolen" election as the left-wing talking heads proclaimed them to be, then we'd have a President Kerry right now.
Side note 2. Posner also puts forward a decent case for legal pragmatism in this book. I've read another of his books (An Affair of State) and a legal opinion (ethnicity of D.I.s at youth boot camps) where he flogs the pragmatic idea. I was suspicious of legal pragmatism. Here's an example why: if a Taliban says girls shouldn't go to school at all and a secular progressive says that they should go to school at least through the twelfth grade, then a pragmatist would say "let's split the difference and educate them through the six grade." Mr. Posner disabuses me of that notion of pragmatism by pointing out that it should only be employed when opposing merits are more or less equal. Well OK then.
Side note 3. I would like to point out one thing that Posner missed in all this, which goes with the butterfly ballot issue to a certain extent. That is that the MSM called Florida for Gore at 7:00 p.m. EST and didn't put it back into the "too close to call" category for close to an hour. When the MSM pulled out all the stops and called Florida for their boy, the heavily-Republican Florida Panhandle voters (6:00 p.m. CST) who heard this were dissuaded from voting, thinking that Bush had already lost. So while it's probably true that more people in Florida on Nov. 7, 2000 *attempted* to vote for Gore (because of the butterfly ballot), it's also probably true that more Floridians woke up that morning *intending* to vote for Bush.
 As far as I'm concerned the whole matter is settled July 6, 2004
5 out of 9 found this review helpful
This book, while a difficult read, lays out the Constitutional arguments for the legitimacy of the Supreme Court's decisions in the presidential election of 2000. I didn't vote for Bush, and I won't vote for him in November, but after reading this book, I can accept that his presidency, while controversial, is legitimate. (Opposition to Bush's policies is a separate matter entirely, and I won't be sorry if he loses.)
All the votes that are fit to count.... July 29, 2003
7 out of 7 found this review helpful
We are a little over a year away from the 2004 Presidential election and you can bet that the 2000 election will cast its shadow over the electorate. For that reason, Breaking the Deadlock remains a very timely read. Going into 2004, it's worth bearing in mind the book's central point: that the question of who won the popular vote in Florida was not a question of fact, but of law. "If the recount was unlawful, the winner of the recount would not be the winner of the election even if he was in some sense the more popular candidate." At the same time,however, Judge Posner acknowledges that Courts, including the Supreme Court, that interpret the law, and were interpreting Florida election, and U.S. Constitutional law in 2000, are themselves exercising a level of discretion that invariably calls into play extra-legal factors. The "people" shall be judge, as the sagacious philosopher Mr. Locke asserted, but who then are the people? Who counts? This text confronts that question. Not all of the material covered in this book was new to me. Still, I learned a significant amount about the 2000 election, and about the electoral process in general. Teachers, students and voters in general will find in Breaking the Deadlock a superb survey of a critical facet of U.S. political life.
 Thorough, but tedious reading July 17, 2003
3 out of 4 found this review helpful
Unlike most of Posner's other writing (his judicial opinions included), this book lacks the verve and wit that marks his style. What is here is a thorough examination of the Bush-Gore contretemps, in which the author concludes, quite persuasively, that almost everybody was right. Yes, the Democrats had a point -- Gore might have gotten more votes, had they all been counted. But yes, Harris was within her discretion to stop the vote-counting. And yes, the Supreme Court majority made the right decision to close the whole show.While his conclusions are interesting, the analysis makes for tedious reading as Posner drills down to the most mundane details of the vote-counting. It's almost like reading a political science text and times, and that's not a good thing if you are a general reader (Posner's target audience, I believe).
 Disappointing November 28, 2002
5 out of 19 found this review helpful
Unfortunately, Posner ultimately ends up relying on the same intellectual dishonesty in trying to justify the Supreme Court's decision that at least three of the justices used in crafting the opinion. Left unaddressed is the most disturbing of Dershowitz's observation that these same three (Rehnquist, Scalia and Thomas, and probably others) completely ignored their overall "judicial philosophies" (as contained in their previous opinions) to install "their" man in the White House. It isn't the judicial activism that is the problem. Had these justices been consistent with what they SAID they believed in, the decision would have at least been defensible. As it stands, the decision is justifiable only as a raw exercise of Machiavellian rationale. THAT is the tragedy.
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