Sandra Day O'Connor concedes Supreme Court's ruling on 2000 presidential election 'was controversial'

In a crowded Bailey Hall on Oct. 23, retired U.S. Supreme Court Justice Sandra Day O'Connor conceded that the court's ruling in favor of George W. Bush in the 2000 election, even though Al Gore won the popular vote, "was certainly controversial."

During the question-and-answer session following her Milton R. Konvitz Lecture in American Ideals, she declared: "The court's decision rested on federal law … the allegation was that Florida officials were not correctly applying federal law in the counting of the votes. That's a perfectly OK federal issue. Now, what bothers people about that election is that the popular vote was for Mr. Gore ..."

Thus, five long weeks after the contested election, O'Connor voted with the majority of the Supreme Court on a 5-4 decision to stop the recount of votes in Florida, the state that brought us the hanging chad. Bush became president, the third in U.S. history to be elected despite losing the popular vote.

Gore conceded the election, saying, "While I strongly disagree with the Supreme Court's opinion, I accept it."

"What the court did was effectively stop the recount procedure," O'Connor said. "And you can quibble with that if you wish. It was very late in the electoral process, and the court finally decided there had been error and we put a stop [to the recount]."

O'Connor is visiting Cornell this week as the Law School's Distinguished Jurist in Residence.

Ronald Reagan nominated O'Connor to the Supreme Court in 1981. She became the first woman justice and in the years preceding her 2006 retirement was known, to her admitted irritation, as the "swing vote" capable of moderating the court's increasingly conservative bent.

She continued her explanation of the 2000 Florida ruling: "We have a very odd system in this country called an Electoral College. We don't allow people to vote in presidential elections for the candidates. They vote for electors, who then meet and decide how the electors are going to cast their votes. It's up to each state in the United States to decide whether it's the winner take all in the electoral votes."

The errors in the 2000 Florida recount -- compounded by suspect voting machines and allegations of voter discrimination -- were that different Florida counties used different standards to count ballots, in violation of the Equal Protection clause of the 14th Amendment.

O'Connor said recounts in the four contested Florida towns would not have changed the election result, nor did four media recounts have different results, she said. Florida's 25 electoral votes pushed Bush to a 271-267 victory over Gore (270 votes take the office).

"I understand the frustration because of the popular vote nationwide, but [a change in the process of deciding presidential elections by the Electoral College] would require a change in the constitutional structure, and I suspect the nation isn't ready to do that," she said.

O'Connor was introduced by her former law clerk, Stewart Schwab, the Allan R. Tessler Dean of the Cornell Law School, and Richard Polenberg, the Goldwin Smith Professor of History at Cornell. Her talk was titled "The Importance of an Independent Judiciary," but the justice instead gave a history of oral argument before the court and its role in helping justices focus on various legal issues.

 

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