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. 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
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 (expect 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, which determined the outcome of the 2000 Presidential election. In three separate opinions, a 7-2 majority of justices found that a ballot recount then being conducted in certain counties in the State of Florida was to be stopped due to the lack of a consistent standard. A 5-4 majority further declared in a per curiam opinion that there was insufficient time to establish standards for a new recount that would meet Florida's deadline for certifying electors.^[1]

The decision stopped the statewide recount that was occurring in Florida and allowed Florida Secretary of State Katherine Harris to certify George W. Bush as the winner of Florida's electoral votes. Florida's 25 electoral votes gave Bush a majority of the electoral college with 271 votes and enabled him to win the Presidency.

Contents 1 Background 2 Prior history 3 Case 3.1 Relevant law 3.1.1 U.S. Const. art. II, § 1, cl. 2 3.1.2 3 U.S.C. § 5 3.1.3 U.S. Const. amend. XIV, § 1 3.2 Issues 3.2.1 Equal Protection claim 3.2.2 Article II claim 3.2.3 Remedy 3.3 Court's decision 3.3.1 Per curiam opinion 3.3.2 Rehnquist's concurrence 3.3.3 Stevens' dissent 3.3.4 Souters' dissent 3.3.5 Ginsberg's dissent 3.3.6 Breyer's dissent 4 Public response 5 See also 6 Notes and references 6.1 Criteria for late filing 7 External links

[edit] 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.^[2] The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated^[3] 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.^[4]

Florida's election laws^[5] 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,^[6] 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.^[7] 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.^[8]

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. ^[9]

[edit] Prior history

On November 16, Gore and Palm Beach filed suit to compel Harris to accept the amended returns, and on November 17 appealed the case to the Florida Supreme Court.^[10] On November 17, the Florida Supreme Court issued an injunction preventing Harris from certifying the election, pending a final ruling of the court. On November 21, the Florida Supreme Court, in Palm Beach County Canvassing Board v. Harris (Harris I) ordered Harris to accept the results of any manual recount certified before November 26 at 5 p.m.^[9]

On November 22, Bush appealed the Florida Supreme Court's ruling to the United States Supreme Court. On December 4, the Court rendered its decision in Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000). The Court opinion remanded the case back to the Florida Supreme Court for a clarification as to whether the basis for their ruling was the Florida constitution or Florida statutes. The Court was concerned that if the basis of the ruling was the Florida constitution, which was not written by the Florida legislature, the ruling might be unconstitutional under Art. II, § 1, cl. 2 ("Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . .").

While the Florida Supreme Court appeal was pending, Miami-Dade county canceled its manual recount on the ground that it could not complete the recount by November 26.^[4] Gore sued to compel Miami-Dade to complete the recount but lost. On November 26, Harris certified the Florida Election. She declared Bush the winner of the Florida election with 2,912,790 votes over Gore, who had 2,912,253—a margin of 537 votes, or about 0.01%.^[11] Upon certification officially the electoral college votes were to be given to George Bush (pending settlement of these suits); however statistically neither Bush nor Gore clearly won the state of Florida since by conservative estimates approximately 111,000 votes were not considered, or 1.91% of the 5,825,043 votes officially tallied for Bush and Gore. The implications of a statistical tie gave both parties the political and popular basis of legal challenges in higher courts which normally do not see such cases.

On November 27, Gore filed suit to contest the certified results of the election. The case was heard by Judge N. Sanders Sauls, who denied the requested relief December 4. Gore appealed the case to the Florida Supreme Court. On December 8, the Florida Supreme Court issued its opinion in Gore v. Harris (Harris II). The court ordered a manual recount of only undervotes,^[12] to be conducted by the Leon County district court, for ballots from the counties and portion of Miami-Dade county not subject to the previous manual tally. The court further ordered that the results of the November manual recount (which was conducted by the various County canvassing boards) for disputed ballots in three counties and portions of a fourth county be included in the final state tally.^[13] This presumably would have included some overvotes. Bush appealed the decision to the U.S. Supreme Court on December 9, and the Court, by a 5-4 vote that would mirror the Court's ultimate ruling in the case, issued an injunction stopping the 64 of 67 county recount pending a final decision.

[edit] Case

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.

[edit] Relevant law

[edit] 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,^[14] 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.

[edit] 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"^[15] in Presidential elections. Of relevant note^[14] to this case was the so-called "safe harbor" provision,^[16] 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.^[17]

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.

[edit] U.S. Const. amend. XIV, § 1

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^[18] 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.

[edit] 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?^[19]
• If the recounts are unconstitutional, what is the remedy?^[20]

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.

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.

[edit] 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.^[21]

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.^[22] 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^[23]. 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 to be constitutional.

Seven justices agreed that Bush won on this claim.^[19]

[edit] 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. Ordinarily, when a state's highest court interprets state law, that interpretation is final, and a federal court can't question it. 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.^[24]

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.^[25]

Only three justices, Chief Justice Rehnquist, Justice Scalia, and Justice Thomas, accepted Bush's argument on this issue.

[edit] Remedy

If the current recount was unconstitutional, the State of Florida would have to fashion the proper remedy. The court had already ordered the recount to stop December 9. Because oral arguments in the case occurred on December 11, there was a limited amount of time available to conduct a recount. By law, the Electoral College was scheduled to meet and cast their votes on December 18, just seven days away. A further complication was the fact that 3 U.S.C. § 5 established a safe harbor for states. A state had to select its electors at least six days prior to the date the Electoral College would meet in order to ensure their electoral votes could not be challenged in Congress. This safe harbor deadline was December 12, the very next day.

Consequently, the court had to address whether to allow the redo of the recount that would subsequently be submitted by Florida, but miss the deadline established by 3 U.S.C. § 5; or stop all recounts and go with the certified results of November 26.

[edit] Court's decision

Positions on the Claims

Claim	Supported	Opposed
Florida Supreme Court acted contrary to the intent of the Florida legislature	Rehnquist, Scalia, Thomas	Breyer, Ginsburg, Kennedy, O’Connor, Souter, Stevens
	Rejected per curiam
Use of different standards of ballot counting violates the Equal Protection Clause	Breyer, Kennedy, O’Connor, Rehnquist, Scalia, Souter, Thomas	Ginsburg, Stevens
	Held per curiam
Only constitutional remedy is to cease all recounts	Kennedy, O’Connor, Rehnquist, Scalia, Thomas	Breyer, Ginsburg, Souter, Stevens
	Held per curiam

A 7–2 majority ruled that the Florida recount was unconstitutional, noting significant problems in the uneven way the votes were being recounted. The majority opinion cited, in particular, the use of differing standards; the combination of full manual recounts for some counties and for selected precincts within Miami-Dade County with partial recounts for other counties and for the rest of Miami-Dade; and the perceived impracticality of the process ordered by the Florida court. Furthermore, a 5-4 majority ruled that no constitutionally-valid recount could be completed by the December 12 deadline set in statute, effectively ending the recounts. 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.'"^[26]) 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.

The minority dissents noted some of these issues and others including the principle of fairness, and the conflicting laws which could be interpreted as invalidating the December 12 deadline. 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. The majority, however, accepted the finding of the Florida Supreme Court that the Florida legislature intended to obtain the benefits of federal statute. This included the December 12 deadline. Thus, sending the case back to the Florida Supreme Court until December 18 could be not appropriate under Florida statute.^[27]

In brief the breakdown of the decisions were:

• The remedy of ceasing all recounts was approved by 5 to 4. (Kennedy, O'Connor, Rehnquist,^[28] Scalia and Thomas in support^[1]; Breyer,^[29] Ginsburg, Souter^[30] and Stevens opposed)
• The finding that using different standards of counting in different areas without a single overseer violated equal protection was approved by 7 to 2. (Breyer, Kennedy, O'Connor, Rehnquist, Scalia, Souter and Thomas in support; Ginsburg and Stevens opposed)
• The view that the Florida Supreme Court acted contrary to the intent of the Florida legislature was rejected by 6 to 3. (Rehnquist, Scalia and Thomas in support; Breyer, Ginsburg, Kennedy, O'Connor, Souter and Stevens opposed)

[edit] Per curiam opinion

[edit] Rehnquist's concurrence

[edit] Stevens' dissent

[edit] Souters' dissent

[edit] Ginsberg's dissent

[edit] Breyer's dissent

[edit] Public response

The case was steeped in controversy as the majority versus minority opinion on the remedy was split along the lines of the more conservative justices voting in favor of Bush and the more liberal justices voting in favor of Gore. Additionally, part of the reason recounts could not be completed was due to various stoppages ordered by the various branches and levels of the judiciary. Opponents argued^[31] 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"^[32] to Bush by "casting a cloud upon what he claims to be the legitimacy of his election."^[32] 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). Critics also argued that Court's decision itself was a perversion of the Equal Protection Clause that it claimed to defend^[31] and contrary to the political question doctrine.^[33]

The dissenting opinions were notable for their unusually harsh treatment of the majority. Justice Ginsberg concluded her dissenting opinion with "I dissent"^[34] rather than the traditional "I respectfully dissent" which was widely viewed as a rebuke of the decision. Justice Stevens' dissent scathingly concluded^[35]:

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.

This widely quoted excerpt from Justice Stevens' dissent was criticized by the decision's defenders as lacking substantal legal insight and relying instead on rhetoric.^[36] The decision was widely criticized^[37] for 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.^[38]

The court's defenders considered this a reasonable precaution against the possibility that the decision might be read overbroadly,^[39] 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.^[40] It was seen by many as a departure from the stare decisis principle.

[edit] See also

• List of United States Supreme Court cases

[edit] Notes and references

[edit] 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).^[2]

[edit] External links

• Mark Levine: "The 'Gore Exception'"
• 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.

	Preceding:	Gore v. Harris (Harris II)
	Subsequent:	George W. Bush's first term as President of the United States