Bush v. Gore, , is the United States Supreme Court decision that effectively resolved the dispute surrounding the 2000 presidential election. Three days earlier, the Court had preliminarily halted a recount that was occurring. Eight days earlier, the Court unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board, .
In a per curiam decision, the Court, by a 5-4 vote, Bush v. Gore (December 12, 2000). U.S. Supreme Court Docket for Bush v. Gore. ruled that no alternative method could be established within the time limit set by Title 3 of the United States Code (3 U.S.C.), ("Determination of controversy as to appointment of electors"), which was December 12. However, seven of the justices agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties. "Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by 'later arbitrary and disparate treatment,' the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional." Three concurring justices also asserted that the Florida Supreme Court had violated of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature.
The decision allowed Florida Secretary of State Katherine Harris's previous certification of George W. Bush as the winner of Florida's 25 electoral votes to stand. Florida's votes gave Bush, the Republican candidate, 271 electoral votes, one more than the required 270 electoral votes to win the Electoral College and defeat Democratic candidate Al Gore, who received 266 electoral votes (a District of Columbia elector abstained). Media organizations subsequently analyzed the ballots, and under the strategy that Al Gore pursued at the beginning of the Florida recount — filing suit to force hand recounts in four predominantly Democratic counties — Bush would have kept his lead, according to the ballot review conducted by the consortium.
parked by the Florida Capitol during the 2000 Presidential election vote dispute]] On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote in Florida, a margin of victory of 1,784 votes. The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated See Fla. Stat. § 102.141(4). (This archived version of the Florida statute is dated July 2, 2001 and is from Archive.org.) automatic machine recount occurred. On November 10, with the machine recount finished in all but one county, Bush's margin of victory had decreased to 327. According to author Jeffrey Toobin, later analysis showed that a total of 18 counties—accounting for a quarter of all votes cast in Florida—did not carry out the legally mandated machine recount, but "no one from the Gore campaign ever challenged" the notion that the machine recount had been completed.Toobin, Jeffrey. "Too Close to Call". Random House, 2002, p.66. Florida's election laws See Fla. Stat. § 102.166. (This archived version of the Florida statute is dated July 2, 2001 and is from Archive.org.) allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward and Miami-Dade, which are counties that traditionally vote Democratic and would be expected to garner more votes for Gore. Gore did not, however, request any recounts in counties that traditionally vote Republican. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, See Fla. Stat. § 102.112. (This archived version of the Florida statute is dated April 21, 2001 and is from Archive.org.) and several of the counties conducting manual recounts did not believe they could meet this deadline. On November 14, the statutory deadline, the Florida Circuit Court ruled that the seven-day deadline was mandatory, but that the counties could amend their returns at a later date. The court also ruled that the Secretary, after "considering all attendant facts and circumstances," had discretion to include any late amended returns in the statewide certification. Before the 5 pm deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 pm on November 14, Florida Secretary of State Katherine Harris announced that she had received the certified returns from all 67 counties, while Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.
Harris issued a set of criteria Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220 (November 21, 2000). Late-filing criteria are at note 5. See The American Presidency Project for other documents related to the 2000 election dispute. by which she would determine whether to allow late filings, and she required any county seeking to make a late filing to submit to her, by 2 pm the following day, a written statement of the facts and circumstances justifying the late filing. Four counties submitted statements, and after reviewing the submissions Harris determined that none justified an extension of the filing deadline. She further announced that after she received the certified returns of the overseas absentee ballots from each county, she would certify the results of the presidential election on Sunday, November 18, 2000. On that date, she certified Bush the winner and litigation ensued.
The dissenters opined:
The four dissenting justices argued that stopping the recount was an "unwise" violation of "three venerable rules of judicial restraint", namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when "another branch of the Federal Government" has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue.
During the brief period when the U.S. Supreme Court was deliberating on Bush v. Gore, the Florida Supreme Court provided clarifications that the U.S. Supreme Court had requested on December 4 in the case of Bush v. Palm Beach County Canvassing Board, . Because of the extraordinary nature and argued urgency of the case, the U.S. Supreme Court issued its opinion in Bush v. Gore on December 12, less than a day after hearing oral argument.
specifies the number of electors per state, and, most relevant to this case, Last paragraph in Part I. specifies the manner in which those electors are selected, stipulating that:
This clause arguably gives power to only one branch of Florida's state government (i.e., the state legislature).Gillman, Howard. exclusively" bush gore&hl=en&ei=QxaFTZWiDYjEsAOprNz8AQ&sa=X&oi=book_result&ct=result&resnum=2&ved=0CC4Q6AEwAQ#v=onepage&q="legislature exclusively" bush gore&f=false The Votes That Counted: How the Court Decided the 2000 Presidential Election, pages 81-82 (University of Chicago Press, 2003).
regulates the "determination of controversy as to appointment of electors" The quote is the title of Section 5, Title 3. in Presidential elections. Of particular relevance to this case was the so-called "safe harbor" provision, which allows states to appoint their electors without Congressional interference if done by a specified deadline:
Since the electors were set to meet December 18, the "safe harbor" deadline was December 12, just one day after the Court heard oral arguments in this case.
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Gore argued that there was indeed a statewide standard, the "intent of the voter" standard, and that this standard was sufficient under the Equal Protection Clause. "The court below was quite insistent that the counting of ballots must be governed by a single uniform standard: the intent of the voter must control." Paragraph 3 in Argument, Part III-A Furthermore, Gore argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render every state election unconstitutionalId. "...if petitioners mean to say that all votes must be tabulated under a fixed and mechanical standard (e.g., the “two-corner chad rule”), their approach would render unconstitutional the laws of States that hinge the meaning of the ballot on the intent of the voter..." Paragraph 3 in Argument, Part III-A and that each method has a different rate of error in counting votes. A voter in a "punch-card" county has a greater chance of having his vote undercounted than a voter in an "optical scanner" county. If Bush wins, Gore argued, every state would have to have one statewide method of recording votes to be constitutional.
Gore argued that Article II presupposes judicial review and interpretation of state statutes, and that the Florida Supreme Court did nothing more than exercise the routine principles of statutory construction to reach its decision. "Even apart from the absurd theory that McPherson requires everything relevant to a state’s process for choosing electors to be packed into a specialized presidential electoral code, the very premise of petitioner’s argument is fatally flawed because the Florida Legislature re-enacted the contest statute in 1999 against the settled background rule that decisions of circuit courts in contest actions are subject to appellate review." Paragraph 5 in Argument, Part I
It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads).
According to the Court, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter'" Id. 5th paragraph in Part I) could not guarantee that each county would count the votes in a constitutionally permissible fashion. The Court stated that the per curiam opinion's applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
Four justices (Justices Stevens, Ginsburg, Souter and Breyer) dissented as to stopping the recount. Two of those four dissenters (Justices Breyer and Souter) acknowledged that the counting up until December 9 had not conformed with Equal Protection requirements. However, Souter and Breyer favored remanding the case back to the Florida Supreme Court for the purpose of crafting specific guidelines for how to count disputed ballots, in contrast to the majority's decision to halt the recount altogether.Toobin, Jeffrey (2007). The Nine: Inside the Secret World of the Supreme Court , pp. 184, (Doubleday, New York, NY). The actual counting had ended with the December 9 injunction issued by the same five-justice majority, three days before any deadline.
The dissenting opinions strongly criticized the five justice majority for involving the Court in state-level affairs. Justice Stevens' dissent (joined by Justices Breyer and Ginsburg) concluded as follows: The per curiam opinion in Bush v. Gore did not technically dismiss the case, and instead "remanded for further proceedings not inconsistent with this opinion." Gore's attorneys therefore understood that they could fight on, and could petition the Florida Supreme Court to repudiate the notion that December 12 was final under Florida law.Political Staff of the Washington Post, it to repudiate the higher court's opinion that December 12 "&source=web&ots=HcYLx-K2DO&sig=Ciqdl1FCRRVEckx81PeNsR37RIU&hl=en Deadlock: The Inside Story of America's Closest Election, pages 230-234 (Public Affairs 2001). Via Google Books. However, Gore dropped the case, because he was not optimistic about how the Florida justices would react to further arguments and, as one of his advisers put it, "the best Gore could hope for was a slate of disputed electors". On remand, the Florida Supreme Court issued an opinion on December 22, 2000 that did not dispute whether December 12 was the deadline for recounts under state law, although this was disputed in a concurring opinion by Florida Supreme Court Justice Leander Shaw. Gore v. Harris, 773 So. 2d 524 (December 22, 2000). Only Florida Supreme Court Justice Leander Shaw, in a concurring opinion, disputed that December 12 was the deadline for recounts under state law. Justice Shaw had joined the dissenting opinion in Gore v. Harris before the ruling in Bush v. Gore.
Michael W. McConnell has written that the U.S Supreme Court's decision on December 12 "may have reached the right result for the wrong reason."McConnell, Michael. Vote: Bush, Gore, and the Supreme Court"&ei=okFDSLv5Aba2iQGG1_2KBQ&sig=AA3pNl1gCME9Z5zp4ocmqCsvRzE#PPA119,M1 “Two-And-A-Half Cheers for Bush v. Gore” in The Vote: Bush, Gore, and the Supreme Court, page 118 (University of Chicago Press, Cass Sunstein and Richard Epstein Eds. 2001). Via Google Books. McConnell points to the Florida Supreme Court's December 11 opinion, which characterized December 12 as an "outside deadline". Here is the pertinent excerpt from the December 11 opinion of the Florida Supreme Court: Palm Beach County Canvassing Board v. Harris, 772 S2d 1273 (Fla December 11, 2000).However, according to Nelson Lund, one might argue that the Florida Supreme Court was discussing the "protest provisions of the Florida Election Code, whereas the issues in Bush v. Gore arose under the contest provisions."Lund, Nelson. for final determination of any state's dispute concerning its electors in order "&source=web&ots=_t263pVN9P&sig=1fNcfW-62ng2e8NeOhFTDaHbzVE&hl=en#PPA176,M1 “The Unbearable Rightness of Bush v. Gore” in The Longest Night: Polemics and Perspectives on Election 2000, page 176 (University of California Press, Arthur Jacobson and Michel Rosenfeld, eds. 2002). Likewise, Peter Berkowitz has written that, "Perhaps it would have been more generous for the Court to have asked the Florida court on remand whether 'outside deadline' referred to contest-period as well as protest-period recounts."Berkowitz, Peter and Wittes, Benjamin. “The Lawfulness of the Election Decision: A Reply to Professor Tribe”, Villanova Law Review, Vol. 49, No. 3, 2004. Abner Greene has pointed to evidence that "the Florida Supreme Court thought all manual recounts – whether protest or contest – must be completed no later than December 12."”Greene, Abner. “Is There a First Amendment Defense for Bush v. Gore?”, 80 Notre Dame L. Rev. 1643 (2005). Greene points to footnotes 21 and 22 in Gore v. Harris, 772 S2d 1243 (December 8, 2000), as evidence that the Florida Supreme Court thought all recounts had to be completed by December 12, 2008. Nevertheless, Greene concluded that, "lack of clarity about the Florida Supreme Court’s views on the safe-harbor provision should have resulted in a remand to that court for clarification," in addition to the remand of December 4. Bush v. Palm Beach County Canvassing, 531 U.S. 70 (December 4, 2000) The Court in Bush v. Gore did remand the case instead of dismissing it, but the remand did not include another request for clarification.
There has also been analysis of whether several Justices had a conflict of interest that should have forced them to recuse themselves from the decision. On several occasions, William Rehnquist had expressed interest in retiring under a Republican administration; one study found that press reports "are equivocal on whether facts existed that would have created a conflict of interest" for Rehnquist. At an election night party, Sandra Day O'Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona. However, both Justices remained on the Court beyond President Bush's first term, until Rehnquist's death in 2005 and O'Connor's retirement in 2006. According to Steven Foster of the Manchester Grammar School:Various ethics experts have asserted that there was no conflict of interest for Justices Clarence Thomas or Antonin Scalia.
The subsequent analysis revealed that black-majority precincts had three times as many rejected ballots as white precincts. "For minorities, the ballot survey found, a recount would not have redressed the inequities because most ballots were beyond retrieving. But a recount could have restored the votes of thousands of older voters whose dimpled and double-voted ballots were indecipherable to machines but would have been clear in a ballot-by-ballot review."Fessenden, Ford. "Ballots Cast by Blacks and Older Voters Were Tossed in Far Greater Numbers", New York Times (November 12, 2001). The ballot review later conducted by a consortium of news organization did not have access to these decisive ballots, which in many cases had disappeared and could not be produced.Fessenden, Ford. "How the Consortium of News Organizations Conducted the Ballot Review", New York Times (November 12, 2001).
Some of the decision's critics argued that the Court's decision was a perversion of the Equal Protection Clause, and contrary to the political question doctrine.Tribe, Laurence H., "The Unbearable Wrongness of Bush v. Gore". George Mason Law & Economics Research Paper No. 03-33; Harvard Law School, Public Law Working Paper No. 72. Available at SSRN: http://ssrn.com/abstract=431080 On the other hand, Geoffrey R. Stone has expressed sympathy with the Court's equal protection reasoning, even though Stone was dismayed by what he saw as the sudden and suspect conversion of Justices Rehnquist, Scalia, and Thomas to that equal protection principle. According to Stone:
The dissent of Justice Stevens was criticized by George Mason University School of Law Professor Nelson Lund. Lund said: "the best known passage, which comes from Justice Stevens' dissent, consists of a rhetorical flourish rather than analysis." In that passage, Stevens had criticized the Court for questioning the impartiality of Florida's judiciary.The dissent by Justice Stevens in Bush v. Gore stated as follows: "What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
Professor Charles Zelden faults the per curiam opinion in the case for, among other things, not declaring that the nation's electoral system required significant reform, and for not condemning administration of elections by part-time boards of elections dominated by partisan and unprofessional officials. Zelden concludes that the Court's failure to spotlight this critical flaw in American electoral democracy made a replay of Bush v. Gore more likely, not less likely, either in Florida or elsewhere. In 2013, retired Justice Sandra Day O'Connor, who had voted with the majority, speculated that perhaps the Court should have declined to hear the case, which "gave the court a less-than-perfect reputation".
Notes and references
Has ''Bush v. Gore'' Become the Case That Must Not Be Named?]", Editorial Observer, [[The New York Times]], August 15, 2006.