Institutional Lessons from the 2000 Presidential Election

Abstract

This essay discusses two issues raised by the 2000 presidential election that are relevant to institutional design and institutional choice and that have applicability beyond the presidential contest. First, the election aftermath illustrates the importance of adopting frameworks to shape decisionmaking before an actual controversy arises. If rules and procedures are determined before it is clear which interests are benefited from particular procedures and which are harmed, it is more likely that rules will be chosen that serve public-regarding objectives rather than self-interested goals of participants. This analysis suggests that Congress was the institution best suited to resolve any lingering disputes from Florida because the Electoral Count Act, which had been adopted over one hundred years before, would have structured deliberation to reduce opportunistic behavior and to ensure that decisions were made transparently. Second, the interplay between the United States Supreme Court and the Florida Supreme Court is a fascinating case study of institutional dynamics, with the federal court decisively outmaneuvering the state supreme court to advance the outcome preferred by a majority of the U.S. Supreme Court justices. In particular, the first unanimous per curiam decision in Bush v. Palm Beach County Canvassing Board contained hints about the effect of Article II on judicial interpretation that discouraged the state supreme court from specifying substandards for any manual recounts. In the end, the real tragedy of the institutional interplay was not that the Florida supreme court was reversed but that Congress, the institution most suited to make any final determination, was prevented from playing that role. The Court's analysis and actions reinforced the unfortunate tendency of the political branches to rely on the unelected federal judiciary to set in and save the country from the chaos of democracy.