lesson 25

Hayes v Tilden Election (1876)

Tilden (democrat): needs one more electoral vote

Hayes (republican): needs 4 more electoral votes

* problem w/ getting the electors from 4 states left

Hayes v Tilden Election (1876)

results

Hayes wins bc due to the drama Congress created the Electoral Count Act of 1887

Electoral Count Act of 1887

* established methods for counting votes and handling competing slates of electors
* established Safe Harbor Provision: a state must select its electors 35 days after the election, (6 days bf electoral college convenes)

Florida 2000 election

Nov 7: networks believe FL is going to vote for Gore, then they retract and say Bush then retracted again

Nov 8: Bush led FL by 1700 votes / 6 mill votes

Gore is winning the popular vote, just needs FL electoral votes to win

Palm Beach County “butterfly ballot“

extra large ballot made for the old pop so they can see

* there is issues w/ the ballot that causes 2700 votes to go for the independent Pat Buchanan

First Recounts

bc the margin was so little they had an automatic state recount of all FL ballots

Bush lead went from 1700 to 327 votes

Gore→ protested by and requested a recount of 4 most populous democratic counties

Volusia

Nov 13: Volusia County was the only one who completed their recount, finding 388 votes for Bush

FL certification laws were confusing

1. all missing counties shall be ignored and the results shown by the returns on file shall be certified
2. such returns may be ignored and the results on file at the time may be certified

Secretary of State Harris v FL SC

Nov 14, announced she would certify the results (even though 3 other counties were not done)

* FL SC said no and extended certification deadline to Nov 26
* Harris certifies any way, Bush wins
* Dec 4, US SC canceled the FL SC decision and sent for reconsideration
* Dec 8 FL SC tells all courts to manually recount 60,000 undervotes statewide (the chads)

how the FL SC allow Gore to continue his election challenge

they ordered the recount of 60,000 undervotes

US SC emergency motion

what emergency ruling did the SC make on Dec 9 that basically decided the election for Bush

5/4 stop the recounts until the court decides the issues of the case

what was significant about the Dec 12 deadline

* the day SC issued their decision

it was the Statutory Safe Harbor Deadline

Bush v Gore (2000)

Dec 12 holding

Rehnquist opinion

stop the recount permanently, the recount lacks standards and violates the Equal Protection clause

* it also would not be done by the harbor deadline

Art 2 provision which allowed the US supreme court to reverse FL decision

each state’s electors must be chosen in in such manner as the legislature thereof may direct

* claimed the FL court was rewriting/ignoring state election statue provisions → acting in defiance to the consitution

Gore’s response to Art 2 provision

said the state court was not rewriting the law but interpreting it

Argument of FL SC violated the Equal Protection Clause of the 14th amendment

it did not require uniform standards in the recount, some counties were counting the ballots one way and some were counting it another

equal protection clause

14th amendment sec 1

no state shall deny any person w/in its jurisdiction to the equal protection of the law

use of equal protection

usually by democrats

republicans use in this case to give Bush the win

bush v gore (2000)

steven dissent

this decision goes against traditionally affairs, usually they stick to the highest court of the States to provide the final answer regarding election laws

Gore’s response to the election

make sure no one trashes the court

* this is america we must but the country bf party
* i disagree but i accept it

Independent State Legislature Theory

Rehnquist’s concurrence

Art 2 provision: each state shall appoint in such a manner as the legislature thereof may direct, electors for president and vice pres

* there are exceptional cases in which the Constitution imposes the duty or confers a power on a particular brach of state’s gov

Moore v Harper (tbd)

facts, NC SC resolution of the challenge to the congressional map

NC SC for the first time invalidated a congressional map bc they said it was gerrymandered

“all elections shall be free“

* court ordered experts to draw a new map

Moore v Harper (tbd)

question presented

whether a state’s judicial branch can invalidate regulations governing the manner holding elections prescribed by the legislature by devising their own regulations based on vague state constitutional provisions

Moore v Harper (tbd)

issue distilled - independent state legislature

how much can state courts interpret/change state election law?

* what if courts misinterpret the law
* what if legislatures gerrymander

Moore v Harper (tbd)

independent state legislature theory

under the constitution, only the legislature has the power to regulate federal elections w/out interference from state courts

* NC SC ordered experts to create a new map, legislative job taken over

Moore v Harper (tbd)

NC democrats argument against the map

the new map would allow Republicans to pick up 2 more seats in Congress - gerrymandering that violated the state’s constiution

Moore v Harper (tbd)

republican worst fear

courts are rewriting the law

Moore v Harper (tbd)

democrats worst fear

SC will eliminate state judicial review of elections

* stopping state courts from reviewing legislative maps and ending redistricting legislation
* stop state courts from reviewing any action of the state legislature pertaining to elections

Independent State Legislature

Amar brothers and Ramsey

amar brothers: believe Bush v Gore is completely wrong, going to far

rasmey maps: state courts are going to far but the state legislator is going to far by not following the state constitution

* issue does not have precedent in the court