Apr 13, 2019 3 min read

Last week, my column defended the Electoral College as being fairer and more egalitarian because, unlike a popular vote in which candidates would mostly focus on densely populated states to reach the necessary 270 Electoral College votes, they must campaign in states other than the most populated.

Another advantage of the Electoral College is that it is far less complicated than a popular vote. Exhibit A in my defense of that statement is the 2000 election between George W. Bush and Al Gore.

That election came down to Florida – whoever won Florida would be president – but when Florida’s votes were tallied, Bush led Gore by just 1,784 votes, triggering an automatic recount that resulted in Bush again being declared the winner, but by a smaller margin, eventually resulting in the Gore camp demanding a manual recount in four closely contested counties. However, by law there was a fixed deadline for that recount’s completion, which one county failed to meet, while another simply handed in its previous tally.

This was complicated by Florida’s voting machinery. In countless instances, the ballot’s “punch cards” were, to varying degrees, incompletely punched, resulting in the now-infamous “hanging chads” in which “punched” pieces of paper didn’t separate, (they “hung” there), meaning the voter’s intent could not be determined with certainty. So, when the Florida canvassing board again declared Bush the winner, again Gore contested the recount. He was overruled by a Florida state court, which was overruled by the Florida Supreme Court, whose ruling was immediately stayed by the U.S. Supreme Court, which ruled the Florida Supreme Court’s ruling requiring another statewide recount was unconstitutional.

The Supreme Court said the Constitution’s Equal Protection Clause guarantees that individual ballots cannot be devalued by “later arbitrary and disparate treatment,” which the court contended was the case in Florida because different standards were being applied not only from precinct to precinct but from ballot to ballot, as vote-counters in different voting districts used different criteria – or might go with their gut – to decide what the “hanging chads” meant regarding a voter’s intent.

Therefore, no recount that passed constitutional muster could possibly be fashioned in time to meet Florida’s deadline for certifying electors. And in a separate opinion, Justices Rehnquist, Scalia and Thomas ruled the Florida court’s recount scheme was unconstitutional because it created a new law, something only legislatures can do. So, George W. Bush became president.

Now then … as is likely the case, you found the above hopelessly confusing and an example of how not to conduct a presidential election, imagine the difficulties, let alone the legal challenges, of a popular vote in which nationwide recounts of a close presidential election were necessary.

Bruce G. Kauffmann’s email address is bruce@historylessons.net.