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Final Arbiter, The

The Consequences of Bush v. Gore for Law and Politics

Christopher P. Banks, David B. Cohen, John C. Green

Publication Year: 2005

The resolution of the 2000 presidential election by the U.S. Supreme Court’s Bush v. Gore decision generated an extraordinary outpouring of literature in a very short period of time. Now that the initial furor over the decision has subsided, The Final Arbiter presents a sober consideration of the consequences of the decision for the law, the presidency, and the legitimacy of the American political system. The contributors include well-established names in law and political science, as well as up-and-coming scholars, offering a broad understanding of Bush v. Gore’s long-term impact. This book will be useful as a classroom text in both survey courses on elections and the courts and for advanced courses that consider the impact of judicial rulings on the government and political process.

Published by: State University of New York Press

Series: SUNY series in American Constitutionalism


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THE FINAL ARBITER: The Consequences of Bush v. Gore for Law and Politics

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pp. vii-viii

Figures and Tables

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pp. ix-x

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pp. xi-xii

Among the most controversial aspects of the contentious 2000 presidential election was the U.S. Supreme Court decision, Bush v. Gore. This decision provoked a massive commentary from across the political spectrum, characterized by an unusual level of bitterness. Indeed, rarely has a decision provoked such widespread debate about the legitimacy of the High Court...

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1. Bushed and Gored: A Brief Review of the Initial Literature

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pp. 1-26

THE RESOLUTION OF the 2000 presidential election by the U.S. Supreme Court’s decision in Bush v. Gore (531 U.S. 98 [2000]) generated an extraordinary outpouring of literature in a very short period of time. Like the event itself, these writings are complex, acrimonious, and filled with foreboding about the state of U.S. politics. Even a seasoned observer can be overwhelmed...

PART I. Legal Consequences

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2. The Politics of Constitutional Choices in Light of Bush v. Gore (2000)

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pp. 29-70

IN HIS FIRST inaugural address (1861) President Abraham Lincoln echoed a sentiment that aptly describes the likely impact of Bush v. Gore (2000a). There he stated: . . . the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties...

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3. Bush v. Gore and the Distortion of Common Law Remedies

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pp. 71-86

THE LASTING IMPORTANCE of Bush v. Gore (531 U.S. 98 [2000]) will be its impact on the law of remedies. The decision is an aberration, setting new legal ground that distorts the remedial principles that have traditionally governed the courts. Indeed, commentators have uniformly scoffed at the implausible remedial decision in Bush and instead have looked for ulterior political or legal...

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4. Bush v. Gore and Equal Protection: A Unique Case?

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pp. 87-106

WHEN THE U.S. SUPREME COURT issued its controversial ruling in Bush v. Gore on December 12, 2000, the per curiam opinion held that the manual recount of undervotes the Florida Supreme Court ordered violated the Fourteenth Amendment’s Equal Protection Clause because the state court had failed to provide a uniform standard for examining the ballots to determine...

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5. Political Equality After Bush v. Gore : A First Amendment Approach to Voting Rights

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pp. 107-132

THE U.S. SUPREME COURT’S opinion in Bush v. Gore (2000a) represents a significant expansion of, if not a sharp departure from, existing constitutional doctrine in the area of voting rights. Never before has the U.S. Supreme Court held that a state’s method for counting votes violates equal protection, much less where no evidence existed that a particular class of persons was disproportionately harmed...

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6. Bush v. Gore ’s Place in the Rehnquist Court’s Federalism Oeuvre

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pp. 133-150

IN HER DISSENTING opinion in Bush v. Gore, Justice Ruth Bader Ginsburg wrote, “Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.”1 What is this system of “dual sovereignty” that supposedly fills the minds of the conservative justices? A crude assumption would be that they normally take every opportunity to defer to the states...

PART II. Political Consequences

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7. Governing After Bush v. Gore : The Challenges of Competitive Partisanship

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pp. 153-170

BUSH V. GOREWAS CRITICAL to the outcome of the 2000 presidential election— resolving, if not solving, the question of which electors would prevail in the state of Florida. “Never in 124 years has a presidential election been so disputed” (Dionne and Kristol 2001, 1). For the first time in our history, the U.S. Supreme Court...

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8. Who Needs a Mandate?: The Election 2000 Hullabaloo and the Bush Administration’s Governing Agenda

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pp. 171-190

GEORGE W. BUSH’S “new approach to governing” in the aftermath of the 2000 presidential election has indeed been unique in several important respects, but not in the sense implied by his former press secretary. Following the most controversial electoral outcome of the twentieth century, the Bush administration pursued major policy changes often at odds with the general...

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9. Election 2000 and the Future of Electoral Administration: Gauging the Impact of Bush v. Gore on State-Level Electoral Reform

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pp. 191-206

THE UNITED STATES SUPREME COURT’S decision in Bush v. Gore (531 U.S. 98) generated extensive discussion and debate. However, one sentiment the Court expressed garnered widespread agreement. Almost everyone, regardless of partisan predilection, agreed with the Court when it stated, “After the current counting [referring to the various ballot recounts in Florida]...

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10. Election 2000 and Its Impact on Campaign Strategy

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pp. 207-224

THE 2000 ELECTION and its immediate aftermath represented a searing experience for the two major party candidates, their campaigns, parties, and supporters in the electorate. Not since the Hayes–Tilden imbroglio of 1876 had any presidential election taken so long to resolve or been imbued with such mutual recrimination and bitterness...

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11. The Impact of Bush v. Gore and Election 2000 on the Judicial Selection Process

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pp. 225-248

THE IMMEDIATE AFTERMATH of Bush v. Gore saw widespread concern about the legitimacy of the U.S. Supreme Court’s ruling. As discussed elsewhere in this book, the justices were bitterly divided over how to decide the case. Although seven members of the court joined the per curiam opinion that Florida’s “clear intent of the voter” standard governing manual recounts...

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12. Testing the Limits of Democracy Pragmatic Legitimacy and the Election of 2000

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pp. 249-262

AT THE BEGINNING of the twenty-first century, Americans can take some comfort in the assurance that their democracy is healthy. Of course not every pundit or critic would immediately agree. Most often the pessimists justify their concerns by citing trends such as declining voter participation, a rising apathy among the young, and the disturbing cynicism...

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13. Reliving Groundhog Day? : The 2004 Presidential Election and the Legacy of Bush v. Gore

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pp. 263-270

IN THE 1993 hit movie Groundhog Day, actor Bill Murray plays a cynical local TV weatherman who must continually relive Groundhog Day until he becomes a better person. In many ways, the 2004 presidential campaign encapsulates the movie’s theme: Americans appear to be destined to repeat election controversies until the system is reformed. Thus the legions of lawyers, voting irregularities...

List of Contributors

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pp. 271-274


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pp. 275-284

E-ISBN-13: 9780791482841
Print-ISBN-13: 9780791465356
Print-ISBN-10: 0791465357

Page Count: 296
Illustrations: 12 tables
Publication Year: 2005

Series Title: SUNY series in American Constitutionalism
Series Editor Byline: Robert J. Spitzer See more Books in this Series

OCLC Number: 63166044
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Subject Headings

  • Law -- Political aspects.
  • United States. Supreme Court.
  • Bush, George W. (George Walker), 1946- -- Trials, litigation, etc.
  • United States -- Politics and government -- 2001-2009.
  • Contested elections -- United States.
  • Gore, Albert, 1948- -- Trials, litigation, etc.
  • Political questions and judicial power -- United States.
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