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Bush v. Palm Beach County Canvassing Board, 531 US 70 (2000)

Bush v. Gore, 531 US 98 (2000)

The US Supreme Court decision regarding Florida vote recounts preempted the decision of the electorate and presumptively awarded the Presidency to Republican George W. Bush over his Democratic opponent, Al Gore.

The Presidential election was held on November 7, 2000. Support for Republican candidate George W. Bush and Democratic candidate Al Gore was nearly even, and the national Presidential election hinged on the popular vote in Florida. When the Secretary of State, Katherine Harris, received the preliminary election results, Bush lead Gore by 1,784 votes, a margin of less than .5%.

When elections are that close, it triggers a mandatory machine recount of all votes. By the completion of the recount on November 8, Bush's lead had declined to 327 votes. Gore exercised his option to request a hand recount, which he did for the four Florida counties that were expected to vote Democrat.

Bush challenged the selective recount, as well as the inconsistent means of determining the intent of voters who had used punch-card machines to register their votes, because the card was not always cleanly perforated, leaving some with indentations and others with partially detached bits of the ballot (the infamous "hanging chads"). The Democratic election workers tasked with completing the count by hand were accused by their Republic observers of applying arbitrary standards in their analysis of the voters' intent. Although the results were supposed to be certified by November 20, the delays caused by debates over how the vote was to be conducted, combined with temporary stays from the courts, made it unlikely the counties would be able to meet the deadline.

The Florida Supreme Court decided the deadline should be extended until November 26, 2000, and that the votes discarded due to dubious challenges were to be included in the manual recount tally. The outcome of this decision may well have favored Gore.

Bush appealed the Florida Supreme Court decision to the US Supreme Court, claiming the lack of clear and consistent rules for validating a ballot violated his 14th Amendment Equal Protection rights; the Florida Supreme Court's intervention violated Article II of the Constitution, which confers decision-making power on the State legislature (of which his brother, Jeb, was Governor); and the recount could not be completed in accordance with 3 USC 5 "Safe Harbor" provisions, which set the outside deadline for declaring a winner at December 12, 2000.

On December 9, The Supreme Court stayed the recount pending its decision in the case. Oral arguments were scheduled for December 11, just one day before the December 12 deadline.

In a Per Curiam (unsigned by any justice) decision released later on December 11, the Court expressed "considerable uncertainty" that the recount could be completed by the "Safe Harbor" deadline, which may not have been the case but for their injunction against counting ballots while the case was at bar.

Justice Scalia justified the stay of the recount in this way:

"It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether "[c]ounting every legally cast vote ca[n] constitute irreparable harm." One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast vote[s]." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

While seven of the nine justices agreed that the method of the Florida recount presented 14th Amendment constitutional issues, the Court could not agree on a remedy.

As a result, the Supreme Court effectively awarded the election to George W. Bush, by a 5-4 vote. The majority comprised all the conservative justices: Chief Justice Rehnquist, Justice O'Connor, Justice Thomas, Justice Scalia, and Justice Kennedy. The dissenting opinion comprised all the progressive justices: Justice Stevens, Justice Breyer, Justice Souter, and Justice Ginsburg.

The outcome of the 2000 election is still hotly contested between political parties, and continues to be a source of bitterness for many members of the Democratic party. Harvard Law Professor Alan Dershowitz's comments summarize many Democrats' opinion:

"[T]he 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."

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Q: Which US President took office because of a Supreme Court decision in 2000?
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