Election Administration in Crisis: An Early Look at Lessons from Bush versus Gore

"There is probably no other phase of public administration in the United States, which is so badly managed as the conduct of elections." (Harris 1934, 1) Sixty-six years later, following the 2000 presidential election, the above-quoted observation still seems apt. The breakdown led to a whirlwind of litigation in the federal courts, leaving much of the public wondering whether a country that has made a practice of assisting newer democracies with the administration of their elections might need help with its own. Seldom has the relationship between courts and administration been the subject of such intense national focus, as it was with the judicial-administrative interplay during the 2000 election for the president of the United States. The unprecedented stakes riding on the outcome of the judicial-administrative decisions involved in election administration in Florida highlighted features of the judicial-administration interface and subjected it to public scrutiny as perhaps no other area of public policy since the early desegregation decisions. Understandably, both the processes they observed and the outcome that resulted troubled many people. Charges of bias were directed toward judges, administrators, and legislators at state and national levels. Charges of judicial overreaching were plentiful on both sides: Gore partisans alleged judicial overreaching by the U.S. Supreme Court, while Bush partisans alleged overreaching by the Florida Supreme Court. The purpose here is not to engage or evaluate charges of overreaching or partisanship; reams of legal and political commentary will be devoted to that enterprise for decades to come. Instead, the objective here is to examine the decisions for insight into what they might portend for improving election administration in the future and what they might tell us about the judicial-administration interface. I will attempt to draw out some initial lessons that appear to derive from the events and decisions associated with the post-election controversy. Undoubtedly, there are numerous other lessons that will come out of these events. This is meant to serve as an early look. Lesson I: Administrative Neglect in Critical Public Services Leads to the Courts The first lesson is not a new one, but it seems to have received heightened public attention as a result of the post-election dispute. The lesson the nation seems to have to re-learn time and again is that when the requisites of administration in an important area of public service are neglected for a long period of time, breakdown inevitably results and the affected parties turn to the courts to resolve what has been allowed to develop into a crisis. Time and again at the point of crisis, the courts have had to fashion solutions with little preparation and inadequate legislative guidance. This has occurred in many areas of public service such as mental health, prison conditions, and school desegregation (Cooper 1988). The courts are less like an advancing army charging in to dominate a territory and more like a fire brigade that has been summoned when half the building is already engulfed in flames. Nonetheless, the effect of judicial rulings in these areas was not only to force states and localities to address problems they had ignored for years, but also to put others on notice of minimum standards and that be enforced (Cooper 1997, 427). In the area of mental health, for example, the federal court's entry into supervision and reform of mental health institutions came in the landmark case of Wyatt v. Stickney (325 F. Supp. 582 [M.D.A1. 1971]); the court's decision found the abysmal conditions to which Alabama had committed patients in state-operated mental health institutions violated the U.S. Constitution. The decision followed three decades of professional-association analyses and legislative reports that had clearly documented the unacceptable conditions, procedures, and policies to which patients in many states were being subjected. …