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   » » Wiki: Bush V. Gore
Tag Wiki 'Bush V. Gore'.

Bush v. Gore, , is the decision that effectively resolved the dispute surrounding the . Three days earlier, the Court had preliminarily halted that was occurring. Eight days earlier, the Court unanimously decided the closely related case of , .

In a , 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 (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 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 '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 .

The decision allowed 's previous certification of as the winner of Florida's 25 to stand. Florida's votes gave Bush, the candidate, 271 electoral votes, one more than the required 270 electoral votes to win the Electoral College and defeat candidate , who received 266 electoral votes (a 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.

In the United States, each state conducts its own popular election for President and Vice President. However, the voters are actually voting for a slate of "electors", each of whom pledges to vote for a particular candidate for each office, in the . of the U.S. Constitution provides that each state legislature decides how electors are chosen. Early in U.S. history, most state legislatures the slate of electors for each of their respective states. Today, state legislatures have enacted laws to provide for the selection of electors by popular vote within each state. While laws vary, most states, including Florida, award all electoral votes to the candidate for either office who receives a of the state's popular vote. Any candidate who then receives an absolute majority of all electoral votes nationally (270 since 1963) wins the Presidential or Vice Presidential election.

; Close-up view of 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 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 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 , 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 allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: , , and , 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 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 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 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.

Stay of the Florida recount
By December 8, 2000, there had been multiple court decisions regarding the presidential election in FloridaFor example, the in Bush v. Gore cited the December 6, 2000, decision in Touchston v. McDermott, 234 F.3d 1130 (11th Cir. 2000) and on that date the , by a 4-3 vote, ordered a statewide manual recount. Gore v. Harris, 772 S2d 1243 (December 8, 2000) On December 9, the U.S. Supreme Court voted 5-4 to the Florida recount, because according to Justice Scalia:

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.

Rapid developments
The in Bush v. Gore occurred on December 11. Transcript and audio of oral arguments in Bush v. Gore, via . Retrieved 2008-06-05 , a lawyer and future , delivered Bush's oral argument and lawyer argued for Gore.

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.

Relevant law
The of the , on which the decision in Bush v. Gore was based, Last paragraph in Part I states:

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 "" 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.

According to :

Issues considered by the Court
represented Bush]] The Court had to resolve two different questions to fully resolve the case:
  • Were the recounts, as they were being conducted, constitutional?Id. "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." Last paragraph in Part II
  • If the recounts were unconstitutional, what is the remedy?Id. "The only disagreement is as to the remedy." Last paragraph in Part II

Three days earlier, the five-Justice majority had ordered the recount stopped and the Court had to decide whether to restart it.

Equal Protection Clause
Bush argued that recounts in Florida violated the of the , because there was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. Each county used its own standard to manually recount each vote, and Bush argued that some counties would have more lax standards than other counties. Therefore, two voters could have marked their ballot in an identical manner, but one voter's ballot in one county would be counted while the other voter's ballot in a different county would be rejected, due to the varying standards used for manual recounts. "The Equal Protection Clause prohibits government officials from implementing an electoral system that gives the votes of similarly situated voters different effect based on the happenstance of the county or district in which those voters live." Paragraph 2 in Argument, Part III-A.

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.

This was the most closely decided issue in the case. The arguments presented by counsel did not extensively address what the Court should do, if the Court were to find an Equal Protection violation. However, Gore did argue briefly that the appropriate remedy would be to not cancel all recounts, but rather would be to order a proper recount. “The appropriate remedy for either an Equal Protection Clause or Due Process Clause violation would not be to cancel all recounts, but rather to order that the recounts be undertaken under a uniform standard.” Footnote 28.

Article II
Bush also argued that the Florida Supreme Court's ruling violated of the U.S. Constitution. Essentially, Bush argued that the Florida Supreme Court's interpretation of Florida law was so erroneous that their ruling had the effect of making new law. Since this "new law" had not been directed by the Florida legislature, it violated Article II. However, Bush argued that Article II gives the federal judiciary the power to interpret state election law in presidential elections to ensure that the intent of the state legislature is followed. "By rewriting that statutory scheme—thus arrogating to itself the power to decide the manner in which Florida’s electors are chosen—the Florida Supreme Court substituted its judgment for that of the legislature in violation of Article II. Such a usurpation of constitutionally delegated power defies the Framers’ plan." Paragraph 2 in Argument, Part I

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

In brief, the breakdown of the decisions was:
  • Seven justices (the five Justice majority plus and ) 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."
  • Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (, , , and in support; Breyer, , Souter and opposed). Justices Breyer and Souter wanted to remand the case to the Florida Supreme Court to permit that court to establish uniform standards of what constituted a legal vote and then manually recount all ballots using those standards.
  • Three justices (Rehnquist, Scalia and Thomas) argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. However, four justices (Breyer, Souter, Ginsburg, and Stevens) specifically disputed this in their dissenting opinions, and the remaining two Justices (Kennedy and O'Connor) declined to join Rehnquist's concurrence on the matter.

Equal Protection Clause
The Supreme Court, in a opinion, ruled that the Florida Supreme Court's decision, calling for a statewide recount, violated the of the . This ruling was by a 7-2 vote, but (as discussed more fully in the next subsection below) two of the seven disagreed with the Court's remedy for the Equal Protection violation. The Court held that the Equal Protection Clause guarantees to individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment". Even if the recount was fair in theory, it was unfair in practice. The record, as weighed by the Florida Supreme Court, suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.Justices Breyer and Souter stated:
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."

The Court ruled 5–4 that no constitutionally valid recount could be completed by a December 12 "safe harbor" deadline. The Court asserted that "the Supreme Court of Florida has said that the legislature intended the State's electors to 'participate fully in the federal electoral process,' as provided in ." The Court therefore effectively ended the proposed recount, because "the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S. C. §5."

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.

Article II
Chief Justice Rehnquist's , joined by Justices Scalia and Thomas, began by emphasizing that this was an unusual case in which the Constitution requires federal courts to assess whether a state supreme court has properly interpreted the will of the state legislature. Usually, federal courts do not make that type of assessment, and indeed the per curiam opinion in this case did not do so. After addressing this aspect of the case, Rehnquist examined and agreed with arguments that had been made by the dissenting justices of the Florida Supreme Court.

Scholarly analyses
Bush v. Gore prompted many strong reactions from scholars, pundits, and others over the Court's decision.

The critical remedial issue
The most closely decided aspect of the case was the key question of what remedy the Court should order, in view of an violation. Gore had argued for a new recount that would pass constitutional muster, but the Court instead chose to end the election, asserting that “the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S. C. §5.” This last assertion by the 5–4 Bush v. Gore majority has proven very controversial.

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, 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.

Limitation to present circumstances
Some critics of the decision argue that the majority seemed to seek refuge from their own logicCharles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis of American Democracy (Lawrence: University Press of Kansas, 2008) ISBN 0-7006-1593-8 in the following sentence in the majority opinion: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." (6th paragraph from end of Part II-B)  The Court's defenders argued that this was a reasonable precaution against the possibility that the decision might be read over-broadly, arguing that in the short time available it would not be appropriate to attempt to craft language spelling out in greater detail how to apply the holding to other cases. Critics, however, interpreted the sentence as stating that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable.  Regardless of whether the majority intended the decision to be precedential, it has been cited by several federal courts in election cases.

Accusation of partisanship or conflict of interest
It has been claimed that only conservative Republican Justices ruled against Gore in this case and did so for partisan reasons. Law professor has responded as follows:

The majority opinion was criticized by law professor , who wrote:

There has also been analysis of whether several Justices had a that should have forced them to themselves from the decision. On several occasions, 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, 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 . 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 :Various ethics experts have asserted that there was no conflict of interest for Justices Clarence Thomas or Antonin Scalia.

Recount by media organizations
In 2001, a of news organizations, assisted by professional (NORC), examined numerous ways of recounting all the Florida . The study was conducted over a period of 10 months. The consortium examined 175,010 ballots that vote-counting machines had rejected. In each one, the margin of victory was smaller than the 537-vote lead that state election officials ultimately awarded Bush. 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. If Florida's 67 counties had carried out the hand recount of disputed ballots ordered by the Florida Supreme Court on December 8, applying the standards that election officials said they would have used, Bush would have emerged the victor by 493 votes. Examining the Vote: the Overview", (November 12, 2001).

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", (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", (November 12, 2001).

Other issues
Part of the reason recounts could not be completed was the various stoppages ordered by the various branches and levels of the judiciary, most notably the Supreme Court itself. Second last paragraph of Scalia's concurrence. Opponents argued that it was improper for the Court (by the same five Justices who joined the per curiam opinion) to grant a that preliminarily stopped the recounts based on the possibility of and success on the . Supporters of the stay – such as — contend that the validity of the stay was vindicated by the ultimate decision on the merits and that the only thing that the stay prevented was a recount "being done in an unconstitutional way."Fried, Charles. Reaction to a Reasonable Decision" fried&source=web&ots=DidOh5Cd3H&sig=GItDGCmBc5Ilx6PBv5VNoNRGkzE&hl=en "An Unreasonable Reaction to a Reasonable Decision" in Bush V. Gore: The Question of Legitimacy, page 12 (Yale University Press, Bruce Ackerman ed. 2002): “The outrage against the stay by 673 law professors is, to say the least, overwrought. If the decision on the merits was justified, the stay becomes irrelevant. Yes, it did shut down the counting three and a half days earlier, but by hypothesis that counting was being done in an unconstitutional way.”

Some of the decision's critics argued that the Court's decision was a perversion of the Equal Protection Clause, and contrary to the 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: On the other hand, 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 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".

See also

Notes and references

External links
Has ''Bush v. Gore'' Become the Case That Must Not Be Named?]", Editorial Observer, [[The New York Times]], August 15, 2006.

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