This commentary is an enlargement of a talk delivered at the annual conference of the Socio-Legal Studies Association (United Kingdom) held in Bristol, England, in April 2001. The purpose was to raise questions about where the "right-to-vote" comes from in the Florida and U.S. Constitutions and whether the constitutional right-to-vote possesses useful legal force in the judicial resolution of a closely-contested election. The Gore-Bush Florida election controversy was the stimulus.
Among the subsidiary questions are: What should a written constitution for a democratic government say about the right to vote? And, how, if at all, should constitutional litigation play a role in adjudicating the outcomes of elections regularly administered under the election laws? I am hesitant to conclude that the celebrated 2000 United States presidential election -especially the Florida episode - provides much guidance for other constitutional democracies, except in terms of concrete defects to avoid. With unmistakable clarity, the Florida experience revealed two points that a sound election system must be prepared to address:
1. Some elections may be so closely divided in vote totals that it is impossible to determine a true winner except arbitrarily. In short, the difference between the numbers of votes cast for the two leading candidates may be less than the error rates in the balloting and vote counting processes and machinery.
2. If no constitutional standard exists and the outcomes of closely divided election tabulations are subject to judicial review, the election laws must comprehensively address all elections whatever the dignity or status of the office (i.e., from municipal council members to governors or even national presidents). The laws should also designate an administrative official with ample jurisdiction to resolve the entirety of any dispute presented.
Joseph W. Little, Election Disputes and the Constitutional Right to Vote, 13 U. Fla. J.L. & Pub. Pol'y 37 (2001), available at http://scholarship.law.ufl.edu/facultypub/377