Bush v. Gore

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Bush v. Gore
Supreme Court of the United States
Argued December 11, 2000 Decided December 12, 2000
Full case name: George W. Bush and Richard Cheney, Petitioners v. Albert Gore, Jr., et al. Docket #: 00-949 Citations: 531 U.S. 98; 121 S. Ct. 525; 148 L. Ed. 2d 388; 2000 U.S. LEXIS 8430; 69 U.S.L.W. 4029; 2000 Cal. Daily Op. Service 9879; 2000 Colo. J. C.A.R. 6606; 14 Fla. L. Weekly Fed. S 26 Prior history: On writ of certiorari to the Florida Supreme Court Argument: Link to Oral Argument
Holding
In the circumstances of this case, any manual recount of votes seeking to meet the December 12 “safe harbor” deadline would be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
Court membership
Chief Justice: William Rehnquist Associate Justices: John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer
Case opinions
Per curiam. Concurrence by: Rehnquist Joined by: Scalia, Thomas Dissent by: Stevens Joined by: Ginsburg, Breyer Dissent by: Souter Joined by: Breyer; Stevens, Ginsburg (all but part C) Dissent by: Ginsburg Joined by: Stevens; Souter, Breyer (part I) Dissent by: Breyer Joined by: Stevens, Ginsburg (except part I-A-1); Souter (part I)
Laws applied
U.S. Const. art. II, amend. XIV; 3 U.S.C. § 5

Bush v. Gore, 531 U.S. 98 (2000), was a United States Supreme Court case heard on December 11, 2000. In a per curiam opinion, by a vote of 7-2, the Court held that the Florida Supreme Court's scheme for recounting ballots was unconstitutional, and by a vote of 5-4, the Court held that no alternative scheme could be established within the time limits established by Florida Legislature.^[1]. The per curiam opinion was argued on the basis of Equal Protection.^[2]

The decision stopped the recount that was occurring in Florida and 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 College votes, defeating Democrat Al Gore. 270 electoral college votes were needed by either candidate to win.

Background

See also: United States Electoral College and 2000 U.S. presidential election

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 the winner of each state's election receives a number of electoral votes. The winner of a majority of the electoral college is elected President of the United States. In 2000, 270 electoral votes were required for victory.

On November 8, 2000, the Florida Division of Elections reported that Bush had a margin of victory of 1,784 votes.^[3] The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated^[4] automatic machine recount was issued. The recount resulted in a much smaller margin of victory for Bush — on November 10, with the machine recount finished in all but one county, Bush's margin of victory had decreased to 327.^[5] Florida's election laws^[6] 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. 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,^[7] 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 7-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.^[8] Prior to the 5 p.m. deadline on November 14, Volusia county completed its manual recount and certified its results. At 5 p.m., 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.^[9]

Harris issued a set of criteria (see the full 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 Saturday, November 18, 2000.^[10] She did just that, certifying victory for Bush.

Case

Theodore Olson represented Bush

David Boies represented Gore

The oral arguments in Bush v. Gore were brought before the court on December 11 by lawyers representing both sides. Bush was represented before the Court by Theodore B. Olson, a Washington, D.C. lawyer and future Solicitor General. Gore's oral argument was delivered by attorney David Boies. Due to the nature of the case, the U.S. Supreme Court gave its opinion just 16 hours after hearing arguments. The Florida Supreme Court provided the requested clarifications on Bush v. Palm Beach County Canvassing Board while the U.S. Supreme Court was deliberating Bush v. Gore; the two cases were subsequently combined.

Jurisdiction

"Final judgments or decrees rendered by the highest court of a State in which a decision could be had" may be appealed to the Supreme Court under 28 U.S.C. § 1257. In general, the Supreme Court will not hear a case when the state court has remanded the case for further proceedings. There are exceptions to this rule under Cox Broadcasting Corp. v. Cohn, but they are relatively rare. Since the Florida Supreme Court remanded the case, it is somewhat surprising that the Supreme Court heard Bush v. Gore at all. Even more controversially, the opinion in Bush v. Gore did not discuss this rule or point to one of the exceptions under Cox Broadcasting.

Relevant law

U.S. Const. art. II, § 1, cl. 2

Main article: Article Two of the United States Constitution

Article Two defines the executive branch of the federal government; Section 1 specifies the roles of President and Vice President and the method of their election. Clause 2 specified the number of electors per state, and, most relevant to this case,^[11] the manner in which they are selected:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...

The determination to be made was whether the Florida Supreme Court had violated the intent of the Florida Legislature.

3 U.S.C. § 5

Section 5 of Title 3 of the United States Code regulates the "determination of controversy as to appointment of electors"^[12] in Presidential elections. Of relevant note^[11] to this case was the so-called "safe harbor" provision,^[13] which allows states to appoint their electors without interference from Congress if done by a specified deadline:

If any State shall have provided...for its final determination of...the appointment of all or any of the electors of such State...at least six days before the time fixed for the meeting of the electors, such determination...shall be conclusive.^[14]

Since the electors were set to meet December 18, the "safe harbor" deadline was December 12, just one day after the case was argued before the Court.

U.S. Const. amend. XIV, § 1

First page of the Fourteenth Amendment, whose Equal Protection Clause was used in determining Bush v. Gore

Main article: Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment consists of the Due Process Clause and Equal Protection Clause among many other provisions of importance after the Civil War. Of importance to this case^[15] were only the Due Process Clause, and the Equal Protection Clause which ensures that:

No State shall...deny to any person within its jurisdiction the equal protection of the laws.

The case brought into question whether the standard of counting legal votes in Florida and subsequent recounts met the requirements of this clause.

Issues

The court had to resolve two different questions to fully resolve the case.

• Who wins on the merits of the case: Bush or Gore? In other words, are the recounts as they are currently being conducted, constitutional?^[16]
• If the recounts are unconstitutional, what is the remedy?^[17]

The court, especially the majority, had trouble with the timing: they thought that there was little chance of the recount being finished by the December 12 safe harbor deadline, even though the 5 person majority ordered the recount stopped three days earlier. ^[18]

Bush essentially made two distinct claims, one relying on the Equal Protection clause, and the other based on Article II. Gore disputed each of these claims.

Equal Protection claim

Bush argued that the recounts in Florida violated the Equal Protection Clause of the 14th Amendment because there was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. Because each county used its own standard to count each vote, Bush argued, some counties would have more liberal 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.^[19]

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.^[20] 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^[21]. This is because every state uses different methods of recording votes in different counties (e.g., optical scanners, punch-cards, etc.), 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 in order to be constitutional.

Article II claim

Bush also argued that the Florida Supreme Court's ruling violated Art. II, § 1, cl. 2 of the U.S. Constitution, which requires each state to appoint electors "in such Manner as the Legislature thereof may direct." 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 Art. II. Bush argued, however, that Art. 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.^[22]

Gore argued that Art. 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 in order to reach its decision.^[23]

The Court's decision

The majority ruled 5-4 first that the recounts must be stopped, and then after sufficient time had elapsed, that no constitutionally-valid recount could timely be completed by the December 12 deadline. The opinion stated that the state-wide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter.'"^[24]) could not guarantee that each county would count the votes the same way, and held that this violated the Equal Protection Clause of the United States Constitution.

Four justices dissented -- two appointed by Democrats and two by Republicans. The four dissenters argued with what they saw as problems with the ruling, including that the principle of fairness, and the conflicting laws could be interpreted as invalidating the December 12 deadline.^{[citation needed]} It appears the minority would have wished to allow the recount to continue up until the college of electors were mandated to meet on December 18.^{[citation needed]} Yet, the actual counting had ended with the December 9th injunction issued by the same five justice majority, three days before any deadline. ^[18]

In brief the breakdown of the decisions were:

• The remedy of ceasing all recounts was approved by five to four. (Kennedy, O'Connor, Rehnquist,^[25] Scalia and Thomas in support^[2]; Breyer,^[26] Ginsburg, Souter^[27] and Stevens opposed)
• Seven justices (the five Justice majority and Breyer and Souter in dissent) initially agreed upon review that there might be Equal Protection issues in using different standards of counting in different counties. Although seven ended up determining there was indeed an Equal Protection violation, especially due to the fact that different standards are always used to count votes in a presidential election, only five agreed the recounts should stop. Two wanted to remand the case back to the Florida Supreme Court to permit the court to establish uniform standards of what constitutes a legal vote and then manually recount all ballots using those standards.
• The view that the Florida Supreme Court acted contrary to the intent of the Florida legislature was rejected by six of the nine justices. (Rehnquist, Scalia and Thomas in support; Breyer, Ginsburg, Kennedy, O'Connor, Souter and Stevens opposed)

Conclusion

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 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that (not unlike the differing voting machines and systems utilized in the various counties and states in the United States) different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court, but this time only by the five vs. four majority, held that no constitutional recount could be fashioned in the time remaining. The per curiam opinion then limited its holding to the present case so as not to prevent itself from fashioning a contrary result^[28] in a future case.

Criticism

It has been suggested that some of the information in this article's "Criticism" or "Controversy" section(s) be merged into other sections to achieve a more neutral presentation. (Discuss)

Part of the reason recounts could not be completed was that various stoppages ordered by the various branches and levels of the judiciary, most notably the Court itself. Opponents argued^[29] that it was improper for the court (by the same 5–4 majority) to grant an injunction stopping the recounts pending the outcome of the ruling based on the possibility of "irreparable harm"^[30] to Bush by "casting a cloud upon what he claims to be the legitimacy of his election."^[30] Injunctions for irreparable harm cannot usually be granted if doing so would do equal or greater harm to another party (in this case, Al Gore). Apparently, the majority saw less irreparable harm in denying Gore the recount. Critics also argued that Court's decision itself was a perversion of the Equal Protection Clause that it claimed to defend^[29] and contrary to the political question doctrine.^[31]

The dissenting opinions were notable for their unusually harsh treatment of the majority. Justice Stevens' dissent concluded:^[32]

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.

I respectfully dissent.

Justice Stevens' dissent was harshly criticized by the decision's defenders as lacking substantial legal insight and relying instead on rhetoric.^[33] The decision itself was criticized by Harvard University law professor Alan Dershowitz, asserting in Supreme Injustice: How the High Court Hijacked Election 2000 that "the decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath." Some critics argue the majority themselves seemed to seek refuge from their own logic in ^[34] 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.^[35]

The court's defenders argued that this was a reasonable precaution against the possibility that the decision might be read over-broadly,^[36] 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.^[37] It was seen by many as a departure from the stare decisis principle of paramount importance in the history of the Supreme Court and the American Legal system.

See also

• List of United States Supreme Court cases
• Electoral Commission (United States)
• List of United States Supreme Court cases, volume 531
• Gore v. Harris (Harris II)
• George W. Bush's first term as President of the United States

Notes and references

Criteria for late filing

The actual criteria issued by the Secretary:

Facts & Circumstances Warranting Waiver of Statutory Deadline

1. Where there is proof of voter fraud that affects the outcome of the election. In re Protest of Election Returns, 707 So. 2d 1170, 1172 (Fla. 3d DCA 1998); Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 (Fla. 4th DCA 1992).
2. Where there has been a substantial noncompliance with statutory election procedures, and reasonable doubt exists as to whether the certified results expressed the will of the voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998).
3. Where election officials have made a good faith effort to comply with the statutory deadline and are prevented from timely complying with their duties as a result of an act of God, or extenuating circumstances beyond their control, by way of example, an electrical power outage, a malfunction of the transmitting equipment, or a mechanical malfunction of the voting tabulation system. McDermott v. Harris, No. 00-2700 (Fla. 2d Cir. Ct. Nov. 14, 2000).

Facts & Circumstances Not Warranting Waiver of Statutory Deadline

1. Where there has been substantial compliance with statutory election procedures and the contested results relate to voter error, and there exists a reasonable expectation that the certified results expressed the will of the voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998).
2. Where there exists a ballot that may be confusing because of the alignment and location of the candidates’ names, but is otherwise in substantial compliance with the election laws. Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. 2d DCA 1974) (“[M]ere confusion does not amount to an impediment to the voters’ free choice if reasonable time and study will sort it out.”).
3. Where there is nothing “more than a mere possibility that the outcome of the election would have been effected.” Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (Fla. 4th DCA 1992).

—Katherine Harris, Letter from Katherine Harris to Palm Beach County Canvassing Board (Nov. 15, 2000).

See also Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220, 1226 n.5 (2000).^[3]

External links

• Mark Levine: "The 'Gore Exception': A Layman's Guide to the United States Supreme Court Decision in Bush v. Gore"
• Faulty Fourteenth Amendment Jurisprudence Doomed Al Gore Chances in 2000
• Peter Berkowitz & Benjamin Wittes: "The Professors and Bush v. Gore"
• Peter Berkowitz & Benjamin Wittes: "The Lawfulness of the Election Decision"
• Vincent Bugliosi: "None Dare Call It Treason"
• Adam Cohen: "Has Bush v. Gore Become the Case That Must Not Be Named?", Editorial Observer, The New York Times, August 15, 2006.
• Mark Levine: "Constitutional Law and Federal Procedure for Congressional Challenge To Presidential Electors" (brief to Congress challenging 2000 Florida Electors featured in the movie Fahrenheit 911)

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