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Bush v. Gore, , is a landmark United States Supreme Courtmarker case decided on December 12, 2000. The case effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board, , and only three days earlier, had preliminarily halted the recount that was occurring in Floridamarker.

In a per curiam decision, the Court in Bush v. Gore ruled that the Florida Supreme Courtmarker's method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Court also ruled that no alternative method could be established within the time limits set by the State of Florida. Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 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 electoral votes to stand. Florida's 25 electoral votes gave Bush, the Republican candidate, 271 electoral votes, defeating Democratic candidate Al Gore, who ended up with 266 electoral votes (with one D.C.marker elector abstaining). A majority (270) of the electoral votes is needed to win the Presidency or Vice Presidency in the Electoral College.

Background

The Presidential election in question took place November 7, 2000. Under the Electoral College system 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 pledged to vote for a particular candidate for each office, in the Electoral College. Article II, § 1, cl. 2 of the U.S. Constitution provides that each state legislature decides how electors are chosen. Early in U.S. history, most state legislatures directly appointed 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 the laws vary between the states, in most states, including Florida, the candidate for either office who receives the most popular votes (not necessarily a majority) in a state receives all of that state's electoral votes for that office (Maine and Nebraska are notable exceptions to this winner-take-all system). A candidate who receives a majority of the electoral votes (270 since 1961) wins the Presidential or Vice Presidential election.

On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote, 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 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. Florida's election laws allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusiamarker, Palm Beachmarker, Browardmarker and Miami-Dademarker, which happen to be 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, 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. Prior to the 5 p.m. deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 p.m. on November 14, Florida Secretary of State Katherine Harris announced that she was in receipt of 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 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 p.m. 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 26, 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 Florida presidential election and on that date the Florida Supreme Courtmarker, by a 4-3 vote, ordered a statewide manual recount. On December 9, the U.S. Supreme Court stayed the Florida recount, by a 5–4 vote, because, according to Justice Scalia: The dissenters opined: "Counting every legally cast vote cannot constitute irreparable harm... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." 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 oral argument in Bush v. Gore occurred on December 11. Theodore Olson, a Washington, D.C.marker lawyer and future Solicitor General, delivered Bush's oral argument and New Yorkmarker lawyer David Boies argued for Gore.

During the brief period when the U.S. Supreme Court was deliberating 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 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 Equal Protection Clause of the Fourteenth Amendment, on which the decision in Bush v. Gore was based, states:

Article II, § 1, cl. 2 specifies the number of electors per state, and, most relevant to this case, 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).

The most important statute in this case was 3 U.S.C. § 5, which regulates the "determination of controversy as to appointment of electors" 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.

According to :

Issues considered by the Court

The Court had to resolve two different questions to fully resolve the case:
  • Were the recounts, as they were being conducted, constitutional?
  • If the recounts were unconstitutional, what is the remedy?


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

Equal Protection Clause

Bush argued that the recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment, 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 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.

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. 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 unconstitutional 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.

Remedy

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.

Article II

Bush also argued that the Florida Supreme Court's ruling violated Article II, § 1, cl. 2 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 for itself to ensure that the intent of the state legislature is followed.

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.

Vote breakdown and opinions

In brief, the breakdown of the decisions was:
  • Seven justices (the five Justice majority plus Breyer and Souter) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties.
  • Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Kennedy, O'Connor, Rehnquist, Scalia and Thomas in support; Breyer, Ginsburg, Souter and Stevens 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) agreed that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. Justices Kennedy and O'Connor did not reach this issue.


Equal Protection Clause

The Supreme Court ruled 7–2 that the Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause of the Fourteenth Amendment. The Court stated that the Equal Protection clause guarantees 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 suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county.

According to the per curiam opinion, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter'") could not guarantee that each county would count the votes in a constitutionally permissible fashion. The per curiam opinion stated that its applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Remedy

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 'participat[e] fully in the federal electoral process,' as provided in ." The Court therefore effectively ended the election, 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. The four dissenters invoked the principle of fairness. The actual counting had ended with the December 9 injunction issued by the same five-justice majority, three days before any deadline. However, two of those four dissenters (i.e. Justices Breyer and Souter) acknowledged that the counting up until December 9 had not conformed with Equal Protection requirements.

The dissenting opinions were notable for their unusually harsh treatment of the majority. 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. Gore was not optimistic about how the Florida justices would react to further arguments, and in any event "the best Gore could hope for was a slate of disputed electors", as one of his advisers put it. So, Gore dropped the case. 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.

Article II

Chief Justice Rehnquist's concurring opinion, 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.

Commentary

Bush v. Gore prompted many strong reactions from scholars, pundits and others over what the Court had done.

Scholarly analyses of 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 Equal Protection Clause 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.

Michael W. McConnell has written that the U.S Supreme Court "may have reached the right result for the wrong reason." 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: On the other hand, 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." 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." Abner Green 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." 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. The Court in Bush v. Gore did remand the case instead of dismissing it, but the remand did not include another request for clarification.

Scholarly analyses of other aspects of the decision

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. Opponents argued that it was improper for the Court (by the same 5 Justices who joined the per curiam opinion) to grant a stay that preliminarily stopped the recounts based on the possibility of irreparable harm and success on the merits. Supporters of the stay — such as Charles Fried — contend that the validity of the stay was vindicated by the ultimate decision on the merits and that the only thing that the stay stayed was a recount "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 political question doctrine. 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, "No one familiar with the jurisprudence of Justices Rehnquist, Scalia and Thomas could possibly have imagined that they would vote to invalidate the Florida recount process on the basis of their own well-developed and oft-invoked approach to the Equal Protection Clause."

The dissent of Justice Stevens was criticized by George Mason University School of Lawmarker Professor Nelson Lund. Lund said that "[t]he best known passage, which comes from Justice Stevens' dissent, consists of a rhetorical flourish rather than analysis." Conversely, the majority opinion was criticized by Harvard Universitymarker law professor Alan Dershowitz, who wrote: Some critics of the decision argue that the majority seemed to seek refuge from their own logic 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." 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.

It has been claimed that only conservative Republican Justices ruled against Gore in this case and did so due to their party affiliation. Law professor Ronald Rotunda has responded as follows: There has also been analysis of whether or not several Justices had a conflict of interest that should have forced them to recuse themselves from the decision. Various ethics experts have asserted that there was no conflict of interest for Clarence Thomas or Antonin Scalia. Also, 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 Arizonamarker.

In Bush v. Gore: Exposing the Hidden Crisis of American Democracy, Charles L. Zelden, a Nova Southeastern University professor, faults the per curiam opinion in the case for two errors, one of commission and one of omission. The error of commission was the opinion's restriction of the equal-protection analysis to the facts of the specific case; had the Justices been willing to give their analysis more general applicability, it would have worked a valuable revolution in elections law, by requiring uniform statewide standards and perhaps ultimately even a uniform national standard for registering voters, casting votes, and counting votes; the sin of omission was the opinion's lack of a clear declaration that the nation's electoral system was broken and required significant and pervasive reform. Zelden claimed the electoral dispute that spawned this case was the result of the American tendency to leave the administration of elections to part-time boards of elections dominated by partisan officials and lacking professionalism; had the case not arisen in Florida, it could have occurred in any other state in the Union. Zelden concluded, 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.

The Dred Scott comparison

Bill Clinton, who was President of the United States when the decision was made, wrote in his autobiography My Life: The Reverend Jesse Jackson also compared Bush v. Gore to Dred Scott. However, Congress of Racial Equality chairman Roy Innis responded that “Dred Scott should not be hustled and prostituted by Jesse Jackson,” while former U.S. Senator Alan K. Simpson (R-WY) called the comparison of Bush v. Gore to Dred Scott “hysterical babble”.

See also



Notes and references

  1. See Fla. Stat. § 102.141(4). (This archived version of the Florida statute is dated July 2, 2001 and is from Archive.org.)
  2. See Fla. Stat. § 102.166. (This archived version of the Florida statute is dated July 2, 2001 and is from Archive.org.)
  3. See Fla. Stat. § 102.112. (This archived version of the Florida statute is dated April 21, 2001 and is from Archive.org.)
  4. 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.
  5. For example, the concurring opinion in Bush v. Gore cited the December 6, 2000, decision in Touchston v. McDermott, 234 F.3d 1130 (11th Cir. 2000)
  6. Gore v. Harris, 772 S2d 1243 (December 8, 2000)
  7. Bush v. Gore/Certiorari/Dissent. (2009, April 13). In Wikisource, The Free Library. Retrieved 10:46, May 1, 2009, from http://en.wikisource.org/w/index.php?title=Bush_v._Gore/Certiorari/Dissent&oldid=1055472
  8. Transcript and audio of oral arguments in Bush v. Gore, via Oyez.org. Retrieved 2008-06-05
  9. Last paragraph in Part I
  10. Last paragraph in Part I.
  11. The quote is the title of Section 5, Title 3.
  12. 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
  13. Id. "The only disagreement is as to the remedy." Last paragraph in Part II
  14. "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.
  15. "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
  16. Id. "...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
  17. “[T]he 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.
  18. "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
  19. "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
  20. Id. 5th paragraph in Part I
  21. Political Staff of the Washington Post, Deadlock: The Inside Story of America's Closest Election, pages 230-234 (Public Affairs 2001). Via Google Books.
  22. 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.
  23. McConnell, Michael. “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.
  24. Palm Beach County Canvassing Board v. Harris, 772 S2d 1273 (Fla December 11, 2000).
  25. Lund, Nelson. “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).
  26. Berkowitz, Peter and Wittes, Benjamin. “The Lawfulness of the Election Decision: A Reply to Professor Tribe”, Villanova Law Review, Vol. 49, No. 3, 2004.
  27. ”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.
  28. Bush v. Palm Beach County Canvassing, 531 U.S. 70 (December 4, 2000)
  29. 2nd last paragraph of Scalia's concurrence.
  30. Fried, Charles. "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.”
  31. 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
  32. (6th paragraph from end of Part II-B)
  33. Charles L. Zelden, Bush v. Gore: Exposing the Hidden Crisis of American Democracy (Lawrence: University Press of Kansas, 2008) ISBN 0700615938
  34. Cannon, Carl. " After All the Acrimony, the Election Ends on Grace Notes", National Journal (2000-12-16)


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