Guest Commentary

Opinion: Revisiting Bush V. Gore

, The Connecticut Law Tribune


It is hard to believe that next month it will be 13 years since the U.S. Supreme Court decided the 2000 presidential election in favor of George W. Bush. Finding a supporter of the decision is about as easy today as finding a supporter of Dred Scott v. Sandford or Plessy v. Ferguson.

With the perspective of time, and without in any way justifying the various rationales of the five justices in the majority, I would like to take a look at what might have happened if, say, Justice Anthony Kennedy had gone the other way.

First of all, some background on the law of presidential elections:

(1) The U.S. Constitution says nothing about a popular election for the presidential electors. All Article II, § 1, Clause 2 says is that the electors shall be appointed by each state "in such Manner as the Legislature thereof may direct . . . ."

(2) Article II, § 1, Clause 4 gives Congress the power to determine when the electors are chosen and when they are to vote, but this date must be uniform throughout the United States.

(3) 3 U.S.C. § 7 says the electors shall vote on the first Monday after the second Wednesday in December.

(4) 3 U.S.C. § 5 provides a safe harbor for election disputes. If those disputes are finally resolved in favor of a particular set of electors at least six days before the electors are to meet, those electors are the ones who vote.

(5) The Twelfth Amendment to the U.S. Constitution says the votes of the electors shall be sent to the seat of the U.S. Government, "directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives open all the certificates and the votes shall then be counted."

Secondly, some facts about the 2000 election:

(1) In 2000, the first Monday after the second Wednesday in December was Dec. 18.

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