Countdown

The Buying of the President 2004

Equal Rights, Unequal Protection

Apostle Willie David Whiting walked into his usual polling place, the John Wesley United Methodist Church in Tallahassee, Florida, on Election Day, November 7, 2000, with his wife, son, and daughter.

Although Whiting was the head of another place of worship, the House of Prayer Church, he lived nearby and had voted at United Methodist many times in the past. According to county records, Whiting had been registered since 1992 and voted in 10 elections, including the preceding one.

After introducing himself to the polling clerk, the minister was startled when he was told that his “name was not in the record book,” he said under oath before the U.S. Commission on Civil Rights two months later. Another polling clerk “then checked her master book, and she didn’t find my name either, so she became concerned.” She called the Leon County courthouse to check the voter registration records there, and the supervisor on the telephone asked to speak to Whiting directly.

Pastor Whiting was about to get the shock of his life.

“We have you listed as a convicted felon,” the local elections official told him. “You have been purged from our system. You’ve lost all your civil rights.”

Whiting had never been arrested or convicted of anything in his life and was astonished by what he heard. But he refused to be intimidated. “I asked him if I needed a lawyer. He said, ‘Well, let me check further.’ He went away from the phone and after a few minutes, he came back to the phone and said there’s been a mistake. There is a Willie J. Whiting, born July 27, 1950, two days after I was, middle initial is ‘J.’

“I said, ‘Well, do we have the same social security number?’ Couldn’t answer that. ‘Do we have the same driver’s license number?’ He then asked to speak back to the polling clerk again, and he gave her a number that she could give to me or give me a card to proceed to vote. So I did vote that night, but I was purged from the system.”

Whiting had not received any prior notification, in the mail or otherwise, that his name had been stricken from the eligible voters list. When asked by one of the commissioners, “How did you feel when you were told that . . . you were a convicted felon and you no longer have your civil rights?” Whiting paused for a moment and then said, “Well, I reflected upon African-American history, every last bit of it. So it didn’t feel good. I was sling-shotted into slavery, that’s how I felt. I thought of all the things that had happened to African-Americans that I knew about. . . .”

Compounding Whiting’s personal humiliation that day was the presence of his wife and children — and other people at the polling church — who’d observed the spectacle. “When you’re approached like that, you know, you’re taken aback, I mean you’re taken. . . . My family didn’t want to vote because they were not going to allow me to vote. But I encouraged them to go ahead and vote.”

Whiting was by no means alone. The Kafkaesque nightmare he lived through visited untold thousands throughout the state of Florida that infamous election day, especially in African American areas that traditionally vote overwhelmingly Democratic. The 2000 Florida debacle is instructive because of what it reveals about power and money and influence — because it reminded us all of the myriad ways in which politics can be manipulated and abused to achieve desired ends. And because of the fundamental questions it raises: How are public resources allocated? To what end? And who, if anyone, is accountable when important public policy decisions go terribly, embarrassingly wrong? Florida spotlighted how badly the civic engine of democracy itself — elections and the fair, efficient, trustworthy counting of votes — has fallen into disrepair. What’s more, Florida is by no means an aberration: inadequate public funding, petty partisan politics, and a fundamental lack of political accountability afflict the administering of local elections all across this nation.

A FELONIOUS LIST OF ERRORS

Florida is just one of eight states in the country that permanently disenfranchise convicted felons who have completed all of their sentencing requirements, and the only state to include such denial in its constitution. As a result of this ban, 31 percent of African-American men in Florida today are prohibited from voting. As required by law, state Division of Elections officials sent a “felons list” prepared by a private, contracted company to 67 county supervisors of elections. According to a 2002 report by the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights, that list contained “the names of 3,000 to 4,000 people who should not have been included, either because they had never committed a felony or because their voting rights had been restored.” Some people vehemently believe that number is much higher. For example, before its civil litigation against the state contractor was settled out of court, the National Association for the Advancement of Colored People and their coplaintiffs were planning to present expert-witness testimony that 70,000 of the 94,000 possible felon names sent to county supervisors were erroneous.

In Willie Whiting’s Leon County, which has one of the state’s highest percentages of black and other minority voters, the supervisor of elections was given a list of nearly 700 names of convicted felons to purge from the voting rolls. But he could confirm that only 84 people were actual felons. Some county supervisors diligently checked and verified the felon list, and some didn’t. Some supervisors found the list so unreliable they stopped using it. One of them was Madison County elections supervisor Linda Howell, who found herself on the state list, and got a letter informing her that as a felon, she would not be able to vote in the election; she, of course, had never committed a felony. No one will ever know exactly how many legitimately registered, eligible voters were turned away at polling places throughout the state.

If this were a Raymond Chandler murder mystery, the crime scene could not look more suspicious, with Republican fingerprints everywhere. A Republican state legislature passed the felon purge law, which was implemented by a Republican secretary of state who also happened to be a state campaign cochair for Bush — her Republican governor boss’s brother, the Republican presidential nominee. The law required that the state award a felon purge contract to a private company, which, it turns out, had strong ties to the Republican Parry. And it so happened that the names stricken from the voter rolls would have voted overwhelmingly Democratic.

Equally incriminating was how the state of Florida knew that the way it was administering the felon purge law was deliberately broad and might prevent innocent Floridians from voting. George Bruder, at the time a senior vice president of Database Technologies Inc. (DBT; since bought by ChoicePoint), testified that the company advised Florida elections officials to use narrow database matching criteria in creating the voter purge lists; otherwise, the state risked the strong likelihood of too many incorrect, nonfelon names turning up. However, he said under oath, “the state dictated to us that they wanted to go broader, and we did it in the fashion that they requested.” Other company officials echo Bruder’s testimony. In an interview with the Center for Public Integrity, company vice president James E. Lee said that DBT had told Florida officials “on any number of occasions” that “if you do [a broad data search], that this is going to be the result, meaning there would be more false positives, or people who weren’t the real person you are looking for — their name would appear. . . . At the end of the day, it was [the state’s] decision.”

It gets worse. Training county supervisors on the central voter file and felon purge lists was not a priority, to put it charitably, and in April 2000, state Division of Elections officials notified DBT in an e-mail that they were “swamped with work” and that training workshops throughout the state were not “really necessary.”

After hearing sworn testimony from more than 100 witnesses in public proceedings and reviewing more than 118,000 pages of documents in the only formal public investigation into what happened in Florida, the U.S. Commission on Civil Rights, which at the time was made up of six Democrats and two Republicans, concluded that African-American voters were disproportionately “placed on purge lists more often and more erroneously than Hispanic or White voters.” In Miami-Dade County, for example, more than 65 percent of the names on the purge list were African-Americans, “who represented only 20.4 percent of the population.”

Beyond the “felon follies,” as one Florida newspaper described the infamously inept voter list scrubbing operation, the commission found that blacks cast about 54 percent of the 180,000 spoiled (uncounted) ballots in Florida — even though they represented only about 11 percent of the state’s voters. In an extensive statistical analysis of the Florida vote, The New York Times found that black precincts had more than three times as many rejected ballots as white precincts, regardless of “whether the precinct used punch cards or paper ballots, whether the neighborhoods were rich or poor or the ballot was straight or butterflied.” A political scientist asked by the Times to review its study, Philip Klinkner of Hamilton College, said, “It raises the issue about whether there’s some way that the voting system is set up that discriminates against Blacks. . . . It raises questions about how they administer elections — where they put the best voting machines, how many poll workers they put out, what kind of education is done.”

Published just weeks after that immeasurable seismic jolt to the national psyche we all know simply as September 11, important investigative stories by the Times and other publications about the controversial Florida vote were largely lost in the din. Still, anyone who sifts through the rubble of the Florida recount — the millions of words written and broadcast, the 65 lawsuits filed, and the various pronouncements by politicians — is left with a distinctly hollow feeling almost impossible to articulate.

AN ABSENCE OF OUTRAGE — OR APOLOGY

The tragedy of thousands of citizens being disenfranchised — the vast majority of them black — was barely acknowledged by the political powers that be. Despite the bitter, take-no-prisoners partisan milieu, despite the spate of lawsuits threatened and real, despite the embarrassment over the internationally observed calamity of incompetence, Florida officials never apologized to the nation, or to anyone for that matter. The party of Lincoln, the Great Emancipator himself, was noticeably silent. There was and remains a disturbing absence of outrage. Shouldn’t all Americans in the 21st century, regardless of ideology or party affiliation, be deeply concerned, indeed, personally offended, that thousands of our fellow citizens in Florida — and more than 1 million people nationwide — tried but were unable to exercise their right to vote in our democracy? Not that anyone can measure these things, but isn’t it an even more egregious effrontery when so many legally cast black votes were not counted, as civic participation was denied yet again to an already aggrieved segment of the population, the descendants of slavery and apartheid?

Consider the perspective of John Lewis, one of the civil rights movement’s most courageous heroes, who for years stood steadfastly at Martin Luther King Jr.’s side despite being arrested and brutally beaten more than 40 times in nonviolent protest marches and sit-ins, now in his ninth term as a Democratic congressman from Georgia. “Thousands of people — and a great majority of these people happened to be people of color, low-income people — were denied the right to participate in the election process,” he told the Center for Public Integrity. “And, when you have that, it becomes the greatest threat to our democracy. For me personally, it was very, very sad. Just a few short years ago, especially in the American South, 11 states in the old Confederacy — from Virginia to Texas — we were fighting for the right to vote. And, we won that right with the passage of the Voting Rights Act of 1965. Then you turn around a few years later, and . . . that right is not being just abused, but that right has been denied.”

Lewis was taken aback by the number of people in Florida in 2000 who had never been arrested or put in jail or even charged with a crime who found themselves stricken from the voting rolls. “I remember there was one young mother who brought her child to see her vote, a young child. And then she got there, and she was told that her name was on the [felon] list, that she couldn’t vote. And she cried and the child cried, couldn’t see the mother participate in the electoral process.

“I think in some parts of Florida, like in other parts of the country, it was a deliberate, systematic effort to discourage people from participating. . . . It was not Sheriff Clark standing in Selma, Alabama, at the courthouse, with his billy club and his electric [cattle prod]. But what they did was done in a much more sophisticated way. You use the power of the mail, and computers, and other ways to tell people that they are not registered or that they cannot vote because of some crime they’ve committed, when they have not committed a crime.”

Lewis pointed out that some Americans have fought for the right to vote for more than two centuries. He notes that the impediments to their inclusion have run the full gamut, from forced slavery and no vote to poll taxes and literacy tests in which a well-educated black voter with a Ph.D. degree would be denied ballot access because he supposedly did not provide the correct answer to the question, “How many bubbles are there in a bar of soap?”

“What was happening in Florida, it was not a poll tax, it was not a literacy test, but it was very similar.”

Ironically, former Florida Secretary of State Katherine Harris, one of the major players in the recount mess, is a newly elected Republican member of Congress in Washington and therefore a “colleague” of Lewis. “One day she spoke to me because she went to school in Atlanta . . . and we had a chat about Georgia. But we never, ever mentioned the election. . . . People got reelected, they got rewarded, but no one said to these [disenfranchised] citizens, ‘We’re sorry, we apologize.’ No one apologized on behalf of the state of Florida, or any of those counties. . . . You know, we make apologies for less, you know, if we happen to bump against someone, or if we happen to step on somebody’s toe, you say, ‘I’m sorry, will you accept my apology?’ And here, the whole electoral process was threatened, and no one said anything, or paid any price for it.”

SILENCE AFTER THE STORM

Among those who had little to say was Jeb Bush, brother of the new president and chairman of his Florida campaign, who was elected to a second term as governor of Florida in 2002. During his sworn testimony before the Commission on Civil Rights, he said he had no authority or responsibility — and took no action — over the 2000 election in Florida, instead pointing to the secretary of state and the 67 county supervisors. Governor Bush did not recall any conversations with Katherine Harris or, for that matter, his brother, regarding state preparations for the fateful election.

Harris was similarly aloof when called before the commission. At one point, she said, “Although by statute, I am the chief elections official, please understand the Florida Constitution created the election system founded upon local control. . . . In most areas, including those dealing with the interplay among supervisors and the Division [of Elections], the Division’s authority is best described as ministerial.” But her actions could hardly be called “ministerial” when she dramatically stopped the manual recount in Palm Beach County at 5 p.m., slamming the door once and for all on a few thousand elderly Jewish Democrats who had inadvertently voted for their worst nightmare, the controversial third-party presidential candidate and occasional defender of accused Nazis, Pat Buchanan? They had fallen victim to the poorly designed, now infamous butterfly ballot.

The governor’s and the secretary of state’s claims of disinterest sometimes stretch credulity, but it is true, though often overlooked, that the entire state elections system was usually not closely controlled by Jeb Bush, Katherine Harris, or the Republicans. Indeed, fully two-thirds of the county elections supervisors in Florida in 2000 were Democrats, including Theresa LePore, the well-intentioned Palm Beach official who had designed the butterfly ballot to help vision-impaired voters.

The fact is, democracy’s short-circuit in Florida occurred throughout the state, victimizing Democrats, Republicans, and independents alike. For example, when the national news media prematurely and incorrectly declared Gore the winner in Florida before the polls had even closed in the conservative western Panhandle, voter turnout was suppressed and many GOP voters, possibly thousands of them, stayed home. In their congressional testimony months later, the television network executives were unctuously insincere, delivering contrite apologies after prematurely announcing election returns in every recent presidential election. Of course, what the networks did on Election Night 2000, announcing a winner (more than once, incorrectly) before thousands of voters had cast their ballots, may have been television’s lowest moment since the quiz show scandals of the late 1950s. Republicans were also justifiably angry over the aggressive campaign by Gore’s lawyers during the recount ruckus to disqualify absentee ballots by overseas military personnel, successfully challenging and eliminating 1,420 absentee ballots cast — 40 percent of the statewide total — because they were, say, missing postmarks (which is not unusual from naval vessels at sea). No one in the Bush camp was more incensed about this than former secretary of defense Dick Cheney. “I have strong feelings about the right of our people in uniform to vote — and they, perhaps, above all others,” he said. “They’re out there putting their lives on the line for us. For the other camp to pursue a conscious strategy to try to disqualify their ballots, I thought, was bad form.”

Still, while the media’s intrusive incompetence that election night and the Gore lawyers’ cynical maneuvers after the election were indeed offensive and kept well-intentioned voters from voting, they resulted from mundane, even understandable, impulses. The media acted out of competitive, nonpartisan, disastrous inadvertence; the lawyers, from ex post facto party electioneering entirely predictable in a razor-close, bitterly fought national contest.

The same cannot be said of state of Florida election officials. Whether they acted from rank, callous incompetence, or cold-blooded political calculation, they were accused of keeping thousands of Democratic voters from casting their legal ballots. When asked about it under oath, Harris could barely answer many of the commission’s sharp questions and repeatedly consulted her Division of Elections director, Clay Roberts. She never apologized or acknowledged the wholesale disenfranchisement of thousands of eligible voters, although she did grudgingly concede that “I suppose mistakes occur.” She specifically mentioned Willie Whiting’s attempt to vote but was able to put a positive spin on it. Ultimately, she said, “He was able to vote.”

Sure, Harris agreed, more money could have and should have been spent on voter education in Florida. “If there is any silver lining about what has happened,” she said, “it certainly is first and foremost voter education. I mean, there’s never been a more extensive voter education scenario in the history of our country than I think what we’ve just incurred in the last five weeks, an extraordinary lesson in civics.”

Jeb Bush was equally sanguine in his testimony. Before the election, he told the commissioners, no one “came to me and said, Governor Bush, we’re going to have a very close election and we’re going to spend 45 days having the entire world look at us and you’re going to be counting, you know, pregnant chads and indented chads — no one that I’m aware of came to me and said we have a serious problem we need to deal with in advance of this.”

As the highest elected official and chief executive for the state of Florida, Jeb Bush showed few signs during his testimony of being curious about, apologetic for, or disconcerted by the disenfranchisement of thousands of voters. The Center for Public Integrity searched but found no speeches or testimony in which the governor publicly lamented the loss of ballot access for so many people. He did tell the chair of the commission, Mary Frances Berry, “I’m delighted that you’re here to sort out any of the discrepancies that might exist, so that we can work together to build a world-class election system for Floridians that might be a model for the rest of the country.” To his critics, such sunny-boy breeziness in the face of one of the most notorious election days in U.S. history seems incongruous, even disingenuous. For thousands of frustrated would-be voters, democracy hit an iceberg and sank to new depths on his watch, and instead of taking personal responsibility or investigating the titanic election catastrophe, the governor mostly talked about the next new ship.

As governor, Bush is empowered to appoint special officers to investigate alleged violations of the elections laws, under sec. 102.109(1) of the Florida statute. When asked if he had appointed anyone, Bush answered, “No, I haven’t.” When asked “Do you intend to appoint any?” he responded, “If there is a reason to do so, I will.” The governor cited separate Department of Justice and state attorney general investigations, in addition to the U.S. Commission of Civil Rights investigation, as the reasons any other inquiries would be unnecessary. The latter inquiry, when completed, “found a strong basis” for concluding that violations of the historic Voting Rights Act had occurred, urging specific follow-up by federal and state authorities. The commission voted 6 to 2, with its two Republican appointees dissenting.

Not surprisingly, the commission’s report itself reflected the deep political fault lines that so defined every stage of the Florida voting fiasco. In their dissent, for example, the two Republican members were scathing in their accusations of partisanship. “The Commission’s report has little basis in fact,” wrote Commissioners Abigail Thernstrom and Russell G. Redenbaugh. “[Its] central finding — that there was ‘widespread disenfranchisement and denial of voting rights’ in Florida’s 2000 presidential election — does not withstand even a cursory legal or scholarly scrutiny. . . . By basing its conclusion on allegations that seem driven by partisan interests and that lack factual basis, the majority on the Commission has needlessly fostered public distrust, alienation and manifest cynicism. . . . What appears to be partisan passions not only destroyed the credibility of the report itself, but informed the entire process that led up to the final draft.”

Harris echoed that theme in a written response to questions from the Center for Public Integrity. She contested the majority report’s findings, particularly the notion that Florida’s Election Day problems had a racial dimension, rather than being the result of a broken down voting system that is not unique to Florida. “The flaws in Florida’s elections system that the historically close 2000 presidential election revealed — uncounted ballots due to undervotes and overvotes, polling places and machines that were inaccessible to persons with disabilities, too few resources dedicated to voter education — had existed throughout our nation for decades,” she wrote. “Very few media reports have emphasized that these concerns were not unique to Florida.”

Harris cited the dissent of the two Republican members of the commission. “The commissioners who voted against the U.S. Commission on Civil Rights majority report stated in their dissent that, based on their analysis of Miami-Dade County’s use of the [Database Technologies Inc.] list, ‘the error rate for whites was almost double that for blacks.’”

She added, “Most important in light of the U.S. Commission on Civil Rights’ libelous charges of racism, The Palm Beach Post (based on its in-depth study) confirmed the fact that we have always made clear: that DBT Online did not use race to match names on the voter roles with felons.”

NO ONE TO CLAIM RESPONSIBILITY

The U.S. Department of Justice Civil Rights Division received 11,000 complaints of election irregularities in Florida and filed three relatively minor complaints in Orange, Osceola, and Miami-Dade counties, but could find no specific or systematic pattern of discrimination. The Civil Rights Division would not comment on the status of any cases it had brought. The Florida
attorney general similarly could find no one to prosecute. And the governor’s Task Force on Election Procedures, Standards and Technology was not created to assess blame or investigate allegations of systemic voter fraud, but instead issued a report with 85 recommendations, including, most important, the establishment of a uniform voting system in Florida.

In 2001, the Florida legislature passed and Governor Bush signed into law election reform legislation that more than tripled state funding for the Division of Elections, from $5.9 million in 2000 to $21.6 million. From fiscal year 1992 through 2000, the average allotment for administering democracy in Florida was $4.5 million.

The co-chair of the Task Force on Election Procedures, Jim Smith, has served as attorney general and secretary of state, first as a Democrat and later as a Republican. “There is no question that Florida had run their elections very much on the cheap,” he told the Center. “There was never enough money for voter education or training. . . . The idea of local residents coming down to their polling places with lemonade and cookies to help out on Election Day — those days are over!”

But Smith took issue with critics who’d suggested that the huge number of voting irregularities in Florida that year could not be coincidental, calling such speculation “grossly unfair.” Because of Florida’s “extremely decentralized system of elections” and the antiquated punch-card system, among other reasons, Governor Bush and Secretary of State Katherine Harris simply could not have deliberately manipulated or otherwise encouraged the suppression of the heavily Democratic black vote even if they had wanted to, he said.

Smith said the task force, the governor, and the legislature all have “gone a long way to clean up the process.” Regarding the new law in Florida, he said that past disqualifying problems such
as “overvoting” (voting for more than one candidate for an office) now cannot occur with the new, improved, technologically superior machines. Of course, he added, mistakes will occur in any election with millions of people voting in widely disparate parts of the state. “It will never be a perfect process,” he said. In other words, inevitably there will be votes cast but not counted. When asked to explain why black voters were substantially more likely to be rejected at the ballot box than whites, Smith matter-of-factly noted that many minority voters are poor and have less education. It is well established that “less-educated voters are more likely to make mistakes” in voting, he said.

Not surprisingly, blaming the victims doesn’t exactly go over well with blacks, who see such explanations as condescending and bigoted. But if we look more closely at voter education for a moment, the facts are clear: Florida elections officials did little before the 2000 election. As Leon County elections supervisor Ion Sancho complained to the U.S. Commission on Civil Rights, “Voter education could have greatly reduced the number of errors made by voters on Election Day. On November 7, that was the day the piper came to collect his due, because Florida, as a state, spends not one dollar on radio and TV ads informing voters how to vote. This in a state that in the past has spent over $85 million in one year telling Floridians how to play the lottery.”

When the Governor’s Task Force made its recommendations, the controversial felon list “scrubbing” problem was clearly not a priority — and it remains substantially unaddressed today in Florida. And while outsourcing the painstaking but crucially sensitive data work on voter backgrounds has fallen into disfavor — the Florida legislature terminated the contract and the company it retained has abandoned the voter purge business — neither state nor county election authorities have the time, expertise, or capacity to vet prospective voters.

Looking back, the U.S. Commission on Civil Rights makes one thing clear: “widespread voter disenfranchisement — not the dead-heat contest — was the extraordinary feature in the Florida election.” The commission concluded that the “serious and not isolated” problems Florida experienced during the 2000 presidential election “resulted in an extraordinarily high and inexcusable level of disenfranchisement, with a significantly disproportionate impact on African-American voters.” What caused this “foreseeable” debacle? The commission cited six culprits: “(1) a general failure of leadership from those with responsibility for ensuring elections are properly planned and executed; (2) inadequate resources for voter education, training of poll workers and for Election Day trouble-shooting and problem solving; (3) inferior voting equipment and/or ballot design; (4) failure to anticipate and account for the expected high volumes of voters, including inexperienced voters; (5) a poorly designed and even more poorly executed purge system; and (6) a resource allocation system that often left poorer counties, which often were counties with the highest percentage of black voters, adversely affected.”

The governor’s response to the commission’s report was less than congenial. His office, via a letter by General Counsel Charles Canady, called the commission’s report “biased and sloppy . . . riddled with baseless allegations, faulty reasoning and unsupported conclusions.” His letter also challenged many of the commission’s findings, including that nasty matter of the substantial disenfranchisement of minority voters, suggesting that the commission had not significantly enough taken into account several variables such as “the voter’s education level, the voter’s experience with voting, the ballot design and the voting machine used.”

Once again, as he had throughout the time it took for the 2000 presidential election to be belatedly decided, the Florida governor refused to accept any personal responsibility for decisions his administration made that contributed to the voting irregularities. That’s still true today. Former state Senator Kendrick Meek, an African-American Democrat whom voters elected to the U.S. House of Representatives in 2002, talked to the Civil Rights Commission about the exasperation he and many others feel. “If the house is on fire and the fire department is across the street and they’re not pulling their trucks out, but they show up after there are ashes talking now about how we can correct this in the future, even though we saw it burning — that’s what happened here in Florida,” he said. “There’s just some things that you know. And my house has been burned down many times without the water.”

POLITICAL MACHINERY AND VOTING MACHINES

While blacks and others continue to seethe over the embers of 2000, and the two major political parties remain bitterly divided, Florida today has fancy new touch-screen voting machines. Alas, even these are fraught with controversy. For one thing, the new machines leave no paper trail of the votes, making it impossible to do a recount. It’s hard to detect any tampering; without exit polling few could tell whether an election was rigged. And because the equipment is so high-tech, the Division of Elections often does not use its own employees to fix the machines, in many cases turning instead to the supplier, a private company, to make repairs.

Equally problematic is the process by which the Florida counties chose the supplier. It seems that the Florida Association of Counties exclusively endorsed Election Systems & Software, one of the handful of companies vying for the multimillion-dollar contracts to replace the state’s antiquated voting machinery with touch-screen equipment. ES&S, which has been responsible for about 56 percent of the U.S. national vote in each of the last four presidential and congressional elections, has strong ties to the GOP.

One such link is with Senator Chuck Hagel, a Republican from Nebraska who, according to the biography on his Senate website, was president of McCarthy & Company and chairman of the board of American Information Systems prior to his election. McCarthy & Company is a subsidiary of the McCarthy Group Inc., a private merchant banking company based in Omaha, which also owns ES&S, which was formed by a merger of American Information Systems and Business Records Corporation. On his financial disclosure form, Hagel lists assets worth between $1 million and $5 million in the McCarthy Group, which he describes as an “excepted investment fund,” which exempts him from disclosing the details of the investment, though this designation has been questioned. He did not disclose the fact that one of the McCarthy Group’s subsidiaries was ES&S — meaning that his stake did not show up on his financial disclosure form.

In Florida, ES&S got the nod from the Association of Counties and received orders totaling more than $70 million in taxpayer money from 12 counties, including Miami-Dade. But the Florida Association of Counties got something in return as well: The group received about $300,000 in commissions (a much more polite term than kickbacks) for all of those orders. The association was happy, ES&S was happy, and so was Sandra Mortham, the lobbyist who represented them both. Mortham was paid a commission for every county that purchased the company’s machines. She told the Associated Press that her actions were proper. “All I did was present the company to the association,” she said.

Sandra Mortham, it turns out, served as Florida’s secretary of state just before Katherine Harris, but was forced off the GOP state ticket because of political scandal. It was Mortham — not Katherine Harris — who authorized the hiring of Database Technologies Inc. in 1998, the ill-fated company contracted by the state to scrub voting rolls of ineligible voters, including felons. Mortham would not talk with the Center for Public Integrity. But after the election spectacle of 2000 in Florida, it is unseemly that a fallen, besmirched political actor got to profit from her past public service in the name of improving the democratic process. Not surprisingly, no official government body in the state had a problem with the transactions.

PAYING FOR THE RECOUNT

The public still remains largely in the dark about how the two parties and their presidential candidates waged their 36-day war for the White House after Election Day, or who paid for it. Several books have been written about that extraordinary drama, most of them penned in the heat of the moment or soon afterward. One less examined issue from that wild period is that, after perhaps the most harrowing election night ever, after raising a combined $325 million in campaign contributions during the most expensive presidential election in history, George W. Bush and Al Gore would have to go back and tap donors for more money for the inevitable recount. Immediately both camps started raising contributions and within a week the contribution checks started rumbling in.

Along with the contributions came questions about disclosure. The Federal Election Commission, responsible for enforcing federal campaign contribution laws, has limited jurisdiction over recount committees. In this gray zone, the two parties can raise unlimited amounts of cash from almost any source. However, while these groups do not have to disclose their donors or expenditures to the PEG, many campaign finance analysts believe that they had an obligation to report such figures to the Internal Revenue Service through 527 laws.

Such 527 committees — so named because of the section of the Internal Revenue Code that regulates them — have to disclose their transactions and contributors to the IRS in periodic cycles that mirror the FEC’s filing timetables. By reporting to the IRS, these political committees are, in essence, declaring themselves as nonprofit organizations and are thus exempt from taxes on their revenues.

As the lawyers and political operatives began descending upon Florida, television and print journalists clamored to cover the intricacies of the recount and demanded access to contribution and expenditure information. But with so many possible pots of money to draw from in the final days and minutes of the battle for the grandest political prize in the world, the possibilities for usable cash were almost endless. Bush and Gore had at their disposal not only their recount and presidential campaign committees, but also congressional leadership political action committees and state and federal party committees, not to mention the myriad of in-kind services provided by unions, companies, and other interested parties. How could anyone determine how much was spent and for what?

We’ll never know. In fact, when we do get an occasional glimpse at the truth, it reminds us how little we actually know. Who can forget the initial national news media coverage of a “riot” that succeeded in temporarily halting the Miami-Dade recounts on November 22, 2000? Two weeks later, veteran Washington Post reporter and columnist Al Kamen was able to put names to the angry white yuppie faces, some shaking their fists in the air, all captured on film. What did Tom Pyle, Garry Malphrus, Rory Cooper, Kevin Smith, Steven Brophy, Matt Schlapp, Roger Morse, Duane Gibson, Chuck Royal, and Layna McConkey all have in common? These “penny-loafer protesters,” as Kamen memorably dubbed them, were current or former aides to Republican members of Congress, who all somehow just happened to be on the 19th floor of the Clark Building in Miami that day. The out-of-towners reportedly had been mobilized at the behest of House majority whip Tom “The Hammer” DeLay, although he has never acknowledged his role in the affair.

No one has any illusions that the Democrats also weren’t deeply involved in similar antics. But the efficiency of the Republican Rioters — who surfaced the same day Bush first appealed to the U.S. Supreme Court — underscores a larger conclusion reached by most close observers of l’affaire Florida from start to finish. As syndicated columnist Jim Hoagland put it, “the Bush legal and political teams dominated the battle for control of perception and procedure. They were far more focused, tough-minded and agile than were Al Gore’s operatives.” Spending more than four times more cash ($13.8 million for Bush to $8.5 million for Gore) than the other side certainly helped, but what we witnessed cannot be explained by money alone.

Beyond political gamesmanship, though, journalists and the public simply cannot ascertain the full extent of such maneuverings in public records or public statements, not to mention follow the money. Officially, under law, recount committees must file a statement of organization “within 24 hours of the date on which the organization is established.” But the public was kept waiting.

The Gore camp quickly created the Gore/Lieberman Recount Committee and filed forms available on the Internet with the IRS on November 9, 2000, two days after the election. Forms disclosing contributions to Gore’s recount efforts were submitted eight days later. In response to media pressure, the Bush campaign finally made some of its contributions publicly available the following month on the Republican National Committee’s website.

Since there are no campaign contribution restrictions on recount committees, both candidates could accept unlimited contributions. The campaign of Vice President Gore took full advantage of these loopholes to accept six-figure contributions from wealthy donors. The Gore/Lieberman Recount Committee accepted nine contributions of $100,000 or more from individual donors such as Mouse Systems founder Steven Kirsch ($500,000), movie producer Stephen Bing ($300,000), and actress Jane Fonda ($100,000). In fact, although Gore claimed to represent the middle class, our research shows that almost two out of three dollars used by his recount committee came from large donors giving $25,000 or more.

In contrast, the Bush-Cheney 2000, Inc-Recount Fund voluntarily limited the size of its contributions to $5,000 per person, and officials said it would not take contributions from political action committees. But the Center has found that the Bush campaign didn’t stay within these self-imposed limits, accepting six donations above $5,000 and taking PAC money from one timber and two energy groups.

Not all the rules that Bush-Cheney 2000 broke were voluntary. After the public waited for close to five months for the Bush recount committee to file its first official form, DNC chairman Terry McAuliffe called for an investigation by the IRS, charging that Bush-Cheney 2000 was a 527 committee violating federal election laws. Ben Ginsberg, counsel to the Bush recount fund, denied that the group had to file as a 527 or was breaking any laws. But almost 15 months later, Bush-Cheney 2000 quietly reversed itself. Republican Party officials declared that the group was indeed a 527, even though the group had been grossly delinquent in disclosing its contributions and expenditures to the public. Violations for such IRS laws could have cost Bush’s recount committee more than $8 million in back taxes and penalties based on its receipts.

But the Bush-Cheney campaign never paid a dime.

Ten weeks before the Bush-Cheney 2000 recount fund filed its forms, the IRS, now under a new Republican administration, declared a special amnesty program for 527 groups that were out of compliance. IRS officials said that the program was designed to help political groups that might have been confused with the reporting requirements and allowed them until July 15, 2002, to file delinquent forms. With only nine hours before the amnesty was due to expire, Bush-Cheney 2000 filed 1,063 pages of contributions and expenditures that the public had been legally entitled to a year and a half earlier. With the amnesty in place, the Bush campaign was not fined.

The Center for Public Integrity also found that the Bush-Cheney recount fund neglected to disclose more than 650 contributions totaling more than $540,000 in these initial late filings. By comparing lists of contributors posted to the Republican National Committee’s website and the disclosure forms filed by Bush’s campaign, the Center discovered hundreds of contributors who are not accounted for, including 40 donors who each gave $5,000. Among the many contributions the recount fund neglected to disclose was that of White House chief strategist Karl Rove.

It is unclear whether the committee knowingly left these donations off its initial disclosure forms, but the omissions account for nearly 10 percent of the total number of contributions. Such nondisclosure of contributions potentially carries stiff fines from the IRS that could amount to more than $190,000, even if the donations were omitted inadvertently.

These omissions became evident in February 2003, when the IRS posted still more delinquent filings from the Bush-Cheney fund — this time outside the window of an amnesty. These reports revealed $1.7 million in missing contributions and $29,000 in previously unreported expenditures. This unambiguous violation could, if the laws were enforced, cost Bush’s 527 more than $610,000.

Missing donations weren’t the only things out of compliance on the recount fund disclosure forms. The Center found that the 527 neglected to disclose the necessary information on most of its contributions. In fact, Bush-Cheney 2000 failed to disclose both the contributors’ employer and occupation for 2,745 of the group’s 8,225 donors — a third of its contributions. All told, the necessary filing information was missing or left blank for more than $2 million of the money the Bush campaign used to recount votes. According to the U.S. Postal Service, the post office box listed on the group’s forms as a primary address doesn’t even exist.

While the Bush-Cheney recount fund was guilty of flagrantly delinquent filing, the Gore-Lieberman recount committee used some of its money to keep up appearances and the illusion of power on behalf of the former vice president. As Gore mulled a White House run in late 2002, he used a campaign finance loophole to send $100,000 he had raised two years earlier for the Florida recount to Iowa and New Hampshire in order to bolster his position in the first two states where presidential candidates must test their mettle.

IRS forms reveal disbursements on Oct. 24, 2002, to the Iowa Democratic Party Coordinated Campaign ($25,000), New Hampshire Senate Democratic Caucus ($20,000), New Hampshire Democratic Party ($30,000), and Iowa’s Truman Fund ($25,000). The donations came 10 days after Gore made a two-day trip to Iowa, where he attended fundraisers for Democratic candidates.

The Gore/Lieberman recount committee also gave $75,000 to the Florida Democratic Party; $50,000 to Victory 2002, the Coordinated Campaign for the Tennessee Democratic Party; and $10,000 to the Louisiana Democratic Party during the last two reporting periods of 2002.

Meanwhile, almost triple the cash in Florida raised and spent by the Republicans over the Democrats also resulted in triple the fun. Not only did Bush and his party capture Florida’s 25 electoral votes, and thus the entire presidential election, but many of the lawyers and operatives sent by the Republicans into Florida in those frenetic days after election night were later rewarded with plum political jobs.

Another Center for Public Integrity analysis found that seven law firms, each providing more than $250,000 in legal services to the Bush-Cheney recount fund, later produced at least 14 senior political appointees and at least one judicial nominee. We found that appointees — including the solicitor general, the administrator of the relatively anonymous but influential Office of Federal
Procurement Policy, and the Commissioner of U.S. Customs — are former members of the seven law firms that were paid a combined $8.9 million for recount-related legal services.

Indeed, Gibson, Dunn & Crutcher, the top law firm in billings securing President Bush’s recount result boasts three high-profile appointments to the executive branch, as well as the controversial appeals court nominee Miguel Estrada, whose rejection by Democratic procedural moves caused the president to call for reform of the judicial nomination process. Estrada, a partner at Gibson, Dunn & Crutcher, is one of the first Hispanics ever to serve as a clerk to the U.S. Supreme Court. He also served as a litigator in the U.S. Office of the Solicitor General during the first Bush administration and the Clinton administration. The law firm received $892,273 from the recount committee for the services of a legal team that reportedly included Estrada and Ted Olson, now solicitor general. Eugene Scalia, who served as acting solicitor for the Department of Labor but was never confirmed by the Senate, is a partner in the firm as well.

But while the appointments of Scalia, son of Supreme Court Justice Antonin Scalia, and Olson, the respected conservative attorney who argued Bush’s case in front of the Supreme Court, could have been expected from any Republican administration, they are not the end of the firm’s representation on the Bush team. Rob Bonner, a former corporate lawyer who was a partner at Gibson, Dunn & Crutcher’s Los Angeles office, is now the commissioner of U.S. Customs. Bonner himself has a past record of public service in the first Bush administration. M. Sean Royall, a former Gibson, Dunn lawyer, is now deputy director of one of the nation’s most important antitrust watchdog agencies, the Federal Trade Commission Bureau of Competition.

Other recount law firms whose lawyers later landed high government positions included the third largest recipient of funds from the Bush-Cheney recount fund, White & Case ($619,718 in legal bills), which sent international law partner Tim Flanigan to serve as deputy assistant to the president and deputy White House counsel. Bush also tapped Marcos Daniel Jimenez, from the Miami offices of White & Case, as U.S. attorney for the Southern District of Florida. Attorney General John Ashcroft later named Jimenez to the Attorney General’s Advisory Committee for U.S. Attorneys, where he has a hand in national policy.

Bush found two major nominees at the number five recount firm, Greenberg Traurig ($485,636). A major national law practice with important ties to both parties, the firm provided two of the Pentagon’s top civilian lawyers: Alberto Mora, general counsel of the Navy, and Michael P. Socarras, general counsel of the Air Force.

But most noteworthy for sheer numbers is Baker Botts, LLP, the venerable firm of former secretary of state Jim Baker with ties to the Bush family going back at least three generations. Fourth in terms of billing ($561,461), Baker Botts sent Baker to lead Bush’s Florida effort. Appointees with ties to Baker Botts include Kirk Van Tine, general counsel of the Department of Transportation; Claude Allen, deputy secretary of the Department of Health and Human Services; Angela Styles, administrator of the Office of Federal Procurement Policy (she worked at Baker Botts in the mid-1990s before going to Miller & Chevalier); Robert Jordan, the ambassador to Saudi Arabia; Patrick Wood, chairman of the Federal Energy Regulatory Commission; and John P. Elwood, counselor to the assistant attorney general for the Department of Justice, Criminal Division.

MOVING THROUGH THE COURTS

While Americans have seen a parade of partisanship from Republican and Democratic members of Congress and presidents, during the post-election maneuvering many citizens were startled by the extent to which our judicial system itself seemed infected by political influences. Before the U.S. Supreme Court essentially decided who would become the next president of the United States, the Florida Supreme Court — with all seven of the justices appointed by Democratic governors — handed down several crucial decisions in favor of Gore. The court was immediately and continually criticized for making decisions that ignored Florida election law.

On November 16, the Florida Supreme Court ruled that the manual recounts should proceed in the three Democratic counties where Gore had asked for such counts. Five days later, after Katherine Harris ruled that hand recounts from those three counties could not be included in the statewide total, the Florida Supreme Court, in a unanimous decision, ruled that the recounted ballots, which gave Gore additional votes, be included. The Florida court also threw out the statutory deadline for certifying the votes, substituting its own instead.

Gore had petitioned for recounts in only four heavily Democratic counties, and Bush had petitioned for no recounts. Still, the Florida judges, in a surprising 4-3 decision on December 8, 2000, ordered a statewide recount of all ballots on which no vote had been recorded for president, a move that some believed favored Gore.

Republicans argued that the Florida Supreme Court had overstepped its bounds on a number of occasions, first by extending the deadline for recounting and then by authorizing a recount of the entire state, in an effort to ensure that Gore was elected. Former Republican National Committee chairman Haley Barbour said of the latter decision, “This goes to show that if a majority of judges is partisan enough there is no limit to how far they will go in abusing their authority.”

Jack Kemp, former Republican vice presidential nominee and Bush advisor, went as far as to accuse the four judges of attempting “a judicial coup d’état.” “The public is experiencing a lesson in the danger of judicial tyranny as exemplified in the Florida Supreme Court,” Kemp said.

But looking back at the electoral madness of the 2000 presidential election — which was so close that “the margin of error exceeded the margin of victory” — nothing about the electioneering or the overcaffeinated legaleering is as historically stunning as what happened with the U.S. Supreme Court. Never in our lifetimes has the High Court decided who would occupy the White House. Besides halting a statewide manual recount in Florida by a 5-4 vote on December 9, 2000, at the request of Republican candidate George W. Bush, five Republican justices pulled the plug on the 2000 presidential election on December 13, effectively making him the next president of the United States.

The U.S. Supreme Court’s breathtaking decision will be debated and discussed for years to come; millions of words and a few books already have been published about the decision and the state and federal court decisions that preceded it.

Five Republican Supreme Court justices awarding the White House to the Republican presidential candidate is controversial enough, but in legal circles there were other striking anomalies about Bush v. Gore. For example, when on December 9 the Court granted a stay in response to the petition from Bush’s lawyers, voting 5 to 4 along partisan lines to halt the statewide manual recount mandated by the Honda Supreme Court, the reasoning struck many observers as a bit thin. Justice Scalia stated the ostensible rationale in his opinion: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

A stay is an exceptionally rare judicial maneuver, as it requires approval of five justices, and the petitioner seeking the stay must show he or she will suffer “irreparable harm” if it is not granted. However, even if the U.S. Supreme Court allowed the recounting to continue, it still could have decided later to throw out the recounted ballots. In his dissent to the stay, Justice Stevens emphasized that “counting every legally cast vote cannot constitute irreparable harm.” In language similar to Scalia’s, but drawing the opposite conclusion, Stevens said, “Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.” Terrance Sandalow, former dean of the University of Michigan Law School and a judicial conservative who opposes Roe v. Wade, was much blunter. He reportedly said, “The balance of harms so unmistakably were on the side of Gore” that granting the stay was “incomprehensible.” He further denounced the stay as “an unmistakably partisan decision without any foundation in law.”

The Court’s decision at 10 p.m. on December 12 came under heavy criticism. For one thing, the opinion was issued per curiam, meaning “by the court” (making it hard to determine precisely who wrote the final judgment) — a peculiar choice because per curiam Supreme Court opinions are generally used in uncontroversial, unanimous decisions. But hiding its parentage was only the beginning of the crisis of confidence it caused. The elder statesman of legal journalism in the United States, Anthony Lewis, who wrote the classic, widely acclaimed Gideon’s Trumpet in 1964 and retired a few years ago from The New York Times, said: “The problem is not so much that the court intervened in politics. It is that the majority’s stated reasons for its decision were so unconvincing.” He quoted one law professor whose opinion he said was emblematic of law teachers he’d spoken to generally: “How can I convince my students now that the integrity of legal reasoning matters?”

Another columnist, E. J. Dionne Jr., writing in The Washington Post, was troubled that “the five most conservative appointees on the court . . . chose to intrude in Florida’s election process having always claimed to be champions of the rights of states and foes of ‘judicial activism’ and ‘judicial overreach.’” That was a common complaint, as echoed by Harvard professor Michael Sandel: “Not only did the court fail to produce any compelling argument of principle to justify its ruling. But, on top of that, the conservative majority contradicted its long-held insistence on protecting states’ rights against federal interference. That’s why this ruling looks more like partisanship than principle.”

The five Supreme Court justices chose the equal protection clause of the 14th Amendment as the constitutional grounds for the majority opinion. This clause, passed after the Civil War to prevent racial discrimination, became a popular tool of the judicial activists on the Warren Court as a means to strike down unfair state action.

A majority of the U.S. Supreme Court declared that the manual recount prescribed by the Florida Supreme Court violated the equal protection clause of the 14th Amendment because ballots were subjected to arbitrary and disparate treatment, and “the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.” The Court explained that a state cannot use varying standards to “value one person’s vote over that of another” in such a way that dilutes “the weight of a citizen’s vote.”

But Florida was not unique. Best-selling author and lawyer Vincent Bugliosi, who wrote The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President, wrote that 44 of the 50 states have varying voting methods, equipment, and standards. Therefore, he argued, “to apply the equal protection ruling of Bush v. Gore would necessarily invalidate virtually all elections throughout the country.”

The Court’s noble concern for “the weight of a citizen’s vote” will always have a decidedly hollow ring to many people. As William H. Chafe, dean of the faculty of arts and sciences at Duke University, wrote, “Dilapidated voting machines — those whose age and condition are most often associated with malfunction and large numbers of ‘undercounted’ ballots — were three times as likely to be located in black precincts as in white precincts.” Blacks voted 90 percent Democratic in the 2000 presidential election nationwide.

The great irony of the Florida election debacle was that in citing the equal protection clause as a justification to halt the recount and the election, the Court was effectively disenfranchising thousands of minority voters. As The New York Times stated in an editorial five days after the historic decision, “Our citizenship is devalued and our historical progress as a nation is negated if we passively accept that a poor, inner-city African-American’s voice in selecting the next president is not accorded the same attention as that of an affluent suburban voter.”

The more sunlight on this decision, the worse it looks. Harvard Law School professor Alan Dershowitz found in his book Supreme Injustice, “In virtually every equal-protection case, it is easy to identify the victim.” He explained that in a 1995 equal protection case, the same five justices ruled that the defendant had to show “individualized harm.” In Bush v. Gore, however, both Bush’s legendary team of competent attorneys and the justices on the Supreme Court failed to identify a specific victim or group of victims who were actually harmed by the 2000 Florida recount.

Indeed, presumably not believing that this was the strongest constitutional argument in their case, Bush’s team buried the equal protection issue, addressing it for fewer than 5 pages of a 50-page brief. And during the oral argument, Bush’s lawyer made only one quick, unelaborated reference to the equal protection issue in his presentation to the court. Weeks earlier, when Governor Bush initially sought redress from the Supreme Court, the justices sent the case back to Florida, and didn’t mention the equal protection clause.

Many scholars were astonished by this unusual use of the equal protection clause. Even conservative constitutional law professor John C. Yoo of the University of California at Berkeley School of Law said he was “surprised” by the equal protection rationale employed by the court, though he agreed with the outcome of the decision. Others strongly disagreed with the justices’ reasoning. Indeed, there are no prior cases in which the equal protection clause has been applied in this manner. Of the mere four cases that the justices do cite in their opinion, not one of the cases “on its facts, comes close to supporting its analysis and result,” according to Yale law professor Akhil Reed Amar. Few things seem to matter more to lawyers, and especially judges, than legal precedent, and it was unusual to cite so few previous cases when making such an important ruling.

The justices themselves were aware of the door they were opening with judicial activism and unusual application of the equal protection clause, claiming, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In yet another unusual statement, the Court made it clear that this historic decision is not to be applied to any other case. Rarely are opinions drafted for use in only one court decision. David D. Cole, a Georgetown University law professor, noted that the conservative justices effectively “created a new right out of whole cloth and made sure it ultimately protected only one person — George Bush.”

Thomas Friedman, a three-time Pulitzer Prize winner, said what many people perceived: “You don’t need an inside source to realize that the five conservative justices were acting as the last in a team of Republican Party elders who helped drag Governor Bush across the finish line. You just needed to read the withering dissents of Justices Breyer, Ginsburg, Souter, and Stevens, who told the country exactly what their five colleagues were up to — acting without legal principle or logic.”

The unabashed political partisanship of the five justices came under attack as well. Justice Clarence Thomas was a long-serving official in the Reagan administration, Chief Justice Rehnquist was in President Nixon’s Justice Department, and Justice Sandra Day O’Connor had once served as the Republican majority leader of the Arizona State Senate. Newsweek reported that Justice O’Connor, after hearing CBS anchor Dan Rather declare incorrectly that Al Gore had won Florida, gasped, “This is terrible.” Her husband, John O’Connor, elaborated on her comment by saying that he and his wife were hoping to retire to Arizona soon, but she did not want to retire if her replacement would be appointed by a Democrat. O’Connor later denied the story.

And then there were the justices’ family ties to Bush himself. Justice Thomas’s wife was a member of Bush’s transition team, helping to collect money for his inauguration. Both of Justice Scalia’s sons, Eugene and John, were lawyers working for firms that represented George W. Bush in Florida or before the Supreme Court.

But perhaps no anecdote of partisanship is more disturbing than the one reported in The Washington Post, which leaves readers with a chilling Seven Days in May feeling. Only days after deciding the 2000 presidential election, Justices Antonin Scalia and Anthony M. Kennedy celebrated the holiday season by attending the annual Christmas party held at the home of President Ronald Reagan’s favorite Republican senator, now a Washington lobbyist, Paul Laxalt, and his wife Carol. Scalia and Kennedy clinked glasses with Dick Cheney, newly elected vice president of the United States. Guests at the party thanked the justices for their decision, congratulated Cheney on his success, and at one point in the evening, went downstairs to watch and cheer Al Gore’s long-awaited concession speech.

Not surprisingly, the credibility of the U.S. Supreme Court suffered after Bush v. Gore. In a Gallup poll taken on December 11, 2000, more than half of the respondents thought that “the Justices on the U.S. Supreme Court are being influenced by their personal political views when deciding this case.” Even among Bush supporters, 36 percent believed that the justices were influenced by partisanship. In a similar poll taken by Newsweek, almost two-thirds of Americans, 65 percent, believed that politics and partisanship played a role in the Supreme Court decision. Meanwhile, every major decision by the Florida Supreme Court, of which a majority of the justices were Democrats, favored Democratic Party presidential nominee Gore. Suddenly, for the first time for many Americans, those black robes in courtrooms had developed newly discernible partisan stripes.

Justice Stevens — appointed to the Court by Republican President Gerald Ford months after the Watergate scandal ended in 1975, second in seniority only to Chief Justice William Rehnquist — offered an ominous warning about the negative impact of the court’s decision on the judiciary. One thing is certain, he said in his dissent. “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

Indeed, after the 2000 presidential election, no American will ever look at voting, elections, judges, or the political process in quite the same way again.