University Distinguished Lecture

The Original Bush v. Gore:
An Historical Perspective on Disputed Elections

Edward B. Foley
Robert M. Duncan/Jones Day Designated Professor in Law
Director, Election Law @ Moritz

Constitutional democracy faces no greater test than a dispute over the election of the chief executive. Our nation was reminded in 2000 how difficult it is to resolve this kind of dispute pursuant to law, as the 5-4 decision of the Supreme Court was attacked as an exercise of political power, not the impartial implementation of law. If the measure of success is whether the losing side accepts the outcome as procedurally proper under the polity’s legal system, what happened in 2000—while not a complete failure, as would be the case if the situation had deteriorated into political violence—was also not the best that one might hope for.

This lecture looks at our nation’s history of handling disputes of this nature, so that we may improve their resolution in the future. Once we examine the different ways that states within our federalist system have settled disputes over who won their elections for governor, we see that some states have adopted better institutions and procedures than others.  Although this lesson of history has largely been overlooked, what works best is when the two contestants mutually turn to a tribunal that they and the public perceive as impartial.

Our history also teaches why we have not done more throughout the nation to establish structurally bipartisan courts to decide cases involving disputed gubernatorial, or presidential, elections. The explanation reaches back to the founding of our republic, and its failure to anticipate the two-party system that quickly emerged. By taking the long view of these disputes and recognizing that they will occur again, we may hope to create new mechanisms to rectify a deficiency that we inherited from the beginning.