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Book Review
| Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis in American Democracy, Lawrence: University Press of Kansas, 2008. Pp. xvi + 390. $ 34.95 (ISBN 978-0-7006-1593-3).
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| Charles Zelden prefaces Bush v. Gore: Exposing the Hidden Crisis in American Democracy with a disclaimer: "this is not an attempt to write the definitive history of Bush v. Gore and the 2000 election. Not until all the participants die and their papers become available to historians can such a history even be contemplated" (x). Perhaps, but until that distant day arrives, this book will do. It is less successful in tying this history to what Zelden calls "the hidden crisis in American democracy." |
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The strengths of this book are manifest. Zelden's description of the events of November and December of 2000, including the voting and recounting process in Florida, and especially the ensuing litigation, is clear, extremely detailed, and quite engaging. He provides analysis of the various parties' overarching strategies, the legal arguments they made to the courts, and the judicial decisions that ensued. Zelden's accomplishments in this part of the book should not be underestimated. The number of lawsuits filed and legal issues raised in Florida subsequent to the 2000 election was enormous. Explicating the details of those legal battles and of Florida election law in a way that is comprehensible even to nonlegal readers is an impressive feat, as is Zelden's ability to maintain a relatively balanced tone and perspective (albeit, at times a slight bias towards Al Gore's legal positions does peak through). Zelden also does a nice job of describing the culmination of this litigation in the United States Supreme Court's final decision in Bush v. Gore, on December 12, 2000, which ended the Florida recounts and handed the presidential election to George W. Bush. Again, Zelden's command of the facts, and the clarity of his presentation are outstanding. His analysis of the motivations of the justices is less original—his ultimate conclusion, that the Court's conservative majority intervened in the election because they wished to act in a statesmanlike manner and avert a political crisis, has been advanced many times before—but overall, Zelden's elucidation of the Court's decision, and of the complex relationship between the Court's actions and the potential role of Congress in the crisis, is thorough and engaging. |
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If all that Zelden's book sought to accomplish was a retelling of the events of November and December of 2000, the book would undoubtedly be a success, albeit a narrow one. In his last chapter, however, Zelden goes beyond this narrative and tries to draw broader lessons for the American electoral process. His thesis is that the electoral crisis of 2000 was a product of the overpoliticization of the electoral process in the United States, including especially the fact that elections are generally supervised at the state level by partisan, elected officials such as Katherine Harris of Florida. Good enough, though Zelden may underestimate the role of simple incompetence and bad luck in creating the Florida crisis. Zelden concludes with a passionate, and clearly heart-felt, argument that the narrowness of the Supreme Court's opinion in Bush v. Gore represented a tragic lost opportunity to jump-start electoral reform. |
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It is here that Zelden's arguments run into problems. For one, if Zelden's ultimate objective was to urge particular electoral reforms, it is peculiar that his book focuses so heavily on lawsuits, and so little on the nuts and bolts of running elections. This disjunction reflects a broader misstep—Zelden appears to greatly overestimate the power of courts, including the United States Supreme Court, to facilitate the kind of reform he advocates. At the end of the book Zelden argues that if the Supreme Court had written Bush v. Gore more broadly, "it would have been much harder for the political branches to play politics with [electoral reform]" (280). In our system, however, it is not the role of the federal courts to supplant legislative authority over such public policy issues as how to run and who should run elections. The federal Constitution simply does not speak to such questions (which is why Bush v. Gore was such a weak legal decision), and therefore there is no warrant for judicial intervention in these matters. More generally, as Zelden acknowledges early on (62), our Constitution clearly vests power over elections in state governments, not the federal government, and certainly not in the federal judiciary, making Zelden's plea for a "more uniform and national electoral system" (282–83) highly problematic. For better or for worse, our sometimes chaotic electoral system is a by-product of our federal system of government and of our chaotic politics, both of which seem intrinsic to our national identity. |
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| Ashutosh A. Bhagwat
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University of California,
Hastings College of Law |
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