Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts

The 2000 Presidential election ended in a collision of history, law, and the courts. It produced a deadlock that dragged out the result for over a month, and consequences - real and imagined - that promise to drag on for years. In the first in-depth study of the election and its litigious aftermath, Judge Posner surveys the history and theory of American electoral law and practice, analyzes which Presidential candidate "really" won the popular vote in Florida, surveys the litigation that ensued, evaluates the courts, the lawyers, and the commentators, and ends with a blueprint for reforming our Presidential electoral practices.The book starts with an overview of the electoral process, including its history and guiding theories. It looks next at the Florida election itself, exploring which candidate "really" won and whether this is even a meaningful question. The focus then shifts to the complex litigation, both state and federal, provoked by the photo finish. On the basis of the pragmatic jurisprudence that Judge Posner has articulated and defended in his previous writings, this book offers an alternative justification for the Supreme Court's decision in Bush v.Gore while praising the Court for averting the chaotic consequences of an unresolved deadlock. Posner also evaluates the performance of the lawyers who conducted the post-election litigation and of the academics who commented on the unfolding drama. He argues that neither Gore's nor Bush's lawyers blundered seriously, but that the reaction of the legal professoriat to the litigation exposed serious flaws in the academic practice of constitutional law. While rejecting such radical moves as abolishing the Electoral College or creating a national ballot, Posner concludes with a detailed plan of feasible reforms designed to avoid a repetition of the 2000 election fiasco. Lawyers, political scientists, pundits, and politicians are waiting to hear what Judge Posner has to say. But this book is written for and will be welcomed by all who were riveted by the recent crisis of presidential succession.

Table of Contents:
Preface vii Chronology of the Deadlock xiii Glossary of Election Terms xv Introduction 1 Chapter 1 The Road to Florida 2000 12 Chapter 2 The Deadlocked Election 48 Chapter 3 The Postelection Struggle in the Courts 92 Chapter 4 Critiquing the Participants 150 Chapter 5 Consequences and Reforms 221 Conclusion 252 Index 261

About the Author :
Richard A. Posner is a Judge of the United States Court of Appeals for the Seventh Circuit and a Senior Lecturer at the University of Chicago Law School. His many books include Economic Analysis of Law (now in its fifth edition), Sex and Reason, Overcoming Law. The Problematics of Maral and Legal Theory, and An Affair of State: The Investigation, Impeachment and Trial of President Clinton. Overcoming Law was one of the New York Times Book Review choices for best book of 1995, and An Affair of State was one of their choices for best book of 1999.

Review :
Arguably the most accomplished legal scholar of the past half century, the prolific Posner ... dissects some of the inaccuracies, distortions, and surprisingly shallow understandings of the legal and factual raw material displayed by many other strident critics of Bush vs. Gore. -- Stuart Taylor National Journal A major contribution to the debate about the case... A pragmatic bottom line and some plain-spoken, even pungent language. -- Frank Davies Miami Herald A leading view on this controversial subject. Highly recommended for general readers with knowledge of American politics or constitutional law. Library Journal Posner is the most mercilessly seditious legal theorist of his generation. -- Larissa MacFarquhar The New Yorker A book woven together by sharp and sometimes prickly opinions ... An interesting, provocative book. -- Monica Davey Chicago Tribune For Poser ... perhaps the country's widest-ranging and most prolific legal thinker . . it is not enough to demonstrate that the Florida court went badly astray... As he argues, with characteristic verve and intelligence, there are still deeper justifications for the Supreme Court's intervention. -- Gary Rosen Commentary [An] elegant essay on presidential politics, constitutional law, and election reform. It is both cool and judicious and mostly fun to read. -- Roger Fontaine The Washington Times Richard Posner's Breaking the Deadlock is a contribution to the extensive literature that is emerging on this most unusual election and its aftermath. Posner's experience as a federal appeals court judge shines through the book, and gives it a different dimension from those many volumes by academics and journalists that form most of the literature of the 2000 election. -- Phillip John Davies Times Higher Education Supplement