The Contested Right to Vote

Authors

Richard Briffault, Columbia Law SchoolFollow

Abstract

For those who believe the United States is a representative democracy with a government elected by the people, the events of late 2000 must have been more than a little disconcerting. In the election for our most important public office - our only truly national office - the candidate who received the most popular votes was declared the loser while his second place opponent, who had received some 540,000 fewer votes, was the winner. This result turned on the outcome in Florida, where approximately 150,000 ballots cast were found not to contain valid votes. Further, due to flaws in ballot design, thousands of other Florida ballots almost certainly failed to reflect the intentions of the voters who cast them. The number of uncounted ballots and votes arguably misrepresented by the butterfly ballot was far greater than the difference in votes between the first-place and second-place presidential candidates in the state. Studies later found that between four and six million votes were lost nationwide in the 2000 election, with 1.5 to 2 million votes lost due to faulty voting equipment and confusing ballots. Several states had higher rates of spoiled presidential ballots than Florida. The 2000 election also generated two Supreme Court decisions with problematic implications for the right to vote in presidential elections. In Bush v. Palm Beach County Canvassing Board, a unanimous Court indicated that the Florida Supreme Court lacked authority to protect the rights of voters by extending the period for conducting manual recounts of disputed presidential ballots. Bush v. Gore flatly declared that "[t]he individual citizen has no federal constitutional right to vote in presidential elections." Rather, "the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself" - which, indeed, had been the plan of Florida's Republican legislature if the recount ordered by the state supreme court had resulted in a victory for Vice-President Gore. Bush v. Gore held that the Florida Supreme Court's effort to require a statewide manual recount of the undervote ballots - that is, those ballots cast by voters that the ballot-counting machinery determined contained no vote - was unconstitutional.

Recommended Citation

Richard Briffault, The Contested Right to Vote, 100 Mich. L. Rev. 1506 (2002).
Available at: https://repository.law.umich.edu/mlr/vol100/iss6/16