Bush v. Gore
Bush v. Gore, 531 U.S. 98, was a decision of the United States Supreme Court that settled a recount dispute in Florida's 2000 presidential election. The ruling was issued on December 12, 2000. On December 9, the Court had preliminarily halted the Florida recount that was occurring. Eight days earlier, the Court unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board. The Electoral College was scheduled to meet on December 18, 2000, to decide the election.
In a per curiam decision, the Court ruled that the use of different standards of counting in different counties
violated the Equal Protection Clause, and ruled that no alternative method could be established within the time limit set by Title 3 of the United States Code, , which was December 12. The vote regarding the Equal Protection Clause was 7–2, and regarding the lack of an alternative method was 5–4. 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 Florida Legislature.
The Supreme Court decision allowed the previous vote certification to stand, as made by Florida Secretary of State Katherine Harris, for George W. Bush as the winner of Florida's 25 electoral votes. Florida's votes gave Bush, the Republican candidate, 271 electoral votes, one more than the required 270 to win the Electoral College, and the defeat of Democratic candidate Al Gore, who received 266 electoral votes.
Media organizations subsequently analyzed the ballots and found that the originally proposed county-based recounts would have resulted in a different outcome than a full statewide recount. Florida subsequently changed to new voting machines to avoid punch cards which had allowed dimpled cards or hanging chad.
A number of subsequent articles have characterized the decision as damaging the reputation of the court, increasing the view of judges as partisan, and decreasing Americans' trust in the integrity of elections.
Background
In the United States, each state conducts its own popular vote election for President and Vice President. 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 Electoral College. 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 these laws vary, most states, including Florida, award all electoral votes to the candidate for either office who receives a plurality of the state's popular vote. Any candidate who receives an absolute majority of all electoral votes nationally wins the Presidential or Vice Presidential election.
s parked by the Florida State Capitol during the 2000 Presidential election vote dispute On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote 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 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 legal analyst Jeffrey Toobin, 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 "o one from the Gore campaign ever challenged" the notion that the machine recount had been completed. 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: Volusia, Palm Beach, Broward and Miami-Dade, 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 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. 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 Katherine Harris 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 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 Saturday, November 18, 2000.
However, on November 17, the Florida Supreme Court enjoined Harris from certifying the election while it heard appeals from the various cases in progress. On November 21, it allowed the manual recounts that had been started to continue and delayed certification until November 26.
Stay of the Florida recount
By December 8, 2000, there had been multiple court decisions regarding the presidential election in Florida. On that date the Florida Supreme Court, by a 4–3 vote, ordered a statewide manual recount. On December 9, ruling in response to an emergency request by Bush, the U.S. Supreme Court stayed the recount. The Court also decided to treat Bush's application for relief as a petition for a writ of certiorari,, requested briefing from the parties by 4 pm on December 10 and scheduled oral argument for the morning of December 11.Although opinions are rarely issued in connection with grants of certiorari, Justice Scalia filed an opinion concurring in the Court's decision, noting that "a brief response is necessary to dissent". According to Scalia,
Justice Stevens filed a dissenting opinion, in which Justices Souter, Ginsburg and Breyer joined. According to Stevens,
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.
A number of legal scholars have agreed with the dissenters' argument that Bush failed to carry the "heavy burden" of demonstrating a "likelihood of irreparable harm".
Rapid developments
The oral argument in Bush v. Gore occurred on December 11. Theodore Olson, a Washington, D.C. lawyer and future Solicitor General, delivered Bush's oral argument. New York lawyer David Boies 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, 2000, 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,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.
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.
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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?
Equal Protection Clause
Bush argued that recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment, because Florida did not have a statewide vote recount standard. Each county was on its own to determine whether a given ballot was an acceptable one. Two voters could have marked their ballots in an identical manner, but the ballot in one county would be counted while the ballot in a different county would be rejected, due to the conflicting manual recount standards.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 not be to 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 of the U.S. Constitution. Essentially, Bush argued that the Florida Supreme Court's interpretation of Florida law was so erroneous that its ruling had the effect of making new law. Since this "new law" had not been directed by the Florida legislature, it violated Article II. 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.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.
Decision
In brief, the breakdown of the decisions was:- Seven justices agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties. The per curiam opinion also identified a problem with the fact that the Florida recount was limited to undervotes; the per curiam implied that a constitutionally valid recount would have included not only Florida's undervotes, but also Florida's overvotes and the ballots that were classified by Florida's voting machines as legal votes. The per curiam expressed concern that the limited scope of Florida's recount would mean that some valid votes would not be counted as legal votes even though they should have been counted as such and that some ballots would be counted as legal votes even though they should not have been counted as such. Justices Breyer and Souter disagreed with the Bush v. Gore majority in regards to this and did not see any problem in Florida's decision to limit its recount to undervotes.
- Five justices agreed that December 12 was the deadline Florida had established for recounts. Justices Souter and Breyer 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 argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. Four justices specifically disputed this in their dissenting opinions, and the remaining two Justices declined to join Rehnquist's concurrence on the matter.
Equal Protection Clause
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.
According to the Court, the statewide standard 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." However, the Court did not state what those complexities were, nor did it explain why the absence of a constitutionally acceptable standard for counting votes, which was the basis for the Court's ruling, would not have invalidated the entire presidential election in Florida.
Critics would later point out that the court had denied certiorari on equal protection grounds when Bush first sought Supreme Court review. Law clerks who worked for Kennedy and O'Connor at the time would later state their belief that the justices settled on equal protection as grounds for their decision, rather than Article II, because they thought it would seem more fair.
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 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 had dissented from the Court's earlier decision, by the same five-justice majority, to grant Bush's emergency request to stop the recount and grant certiorari. In their dissents from the Court's December 12 per curiam opinion, 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 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. The actual counting had ended with the December 9 ruling, issued 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 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.
However, Gore dropped the case, reportedly 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." In addition, Gore campaign chairman Bill Daley argued that fighting on was futile because even if the Florida Supreme Court defied the U.S. Supreme Court and ordered a new recount, "he GOP would take them straight back to Washington, where the Supreme Court would repeat: 'You ain't going to count, okay? So quit bothering us.'"
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 who nevertheless expressed deference to the U.S. Supreme Court's view on this issue and who also argued that, in any case, the Florida Supreme Court would be unable to craft a remedy which would satisfy all of the U.S. Supreme Court's equal protection, due process, and other concerns.
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.In his concurring opinion, Rehnquist also mentioned that he and Justices Scalia and Thomas all join the Supreme Court's per curiam opinion in the Bush v. Gore case and agree with the legal analysis that was presented there.
Scholarly analyses
Bush v. Gore prompted many strong reactions from scholars, pundits and others regarding the Court's decision, with a majority of publications in law reviews being critical. An analysis in the Georgetown Law Journal found that, 78 scholarly articles were published about the case between 2001 and 2004, with 35 criticizing the decision, and 11 defending it.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 assertion in Bush v. Gore has proven very controversial.Michael W. McConnell has written that the U.S Supreme Court's decision on December 12 "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:
However, according to Nelson Lund, a former official of the first Bush administration, 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 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." 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. Louise Weinberg argues that, even giving the Court the benefit of the doubt that it acted appropriately in intervening in Florida state law, its actions should be deemed unconstitutional because its intervention was not coupled with any kind of remedy aimed at determining the actual outcome of the election.
Limitation to present circumstances
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. 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
There have been claims that the majority opinion emerged from conservative Republican Justices ruling against Gore for partisan reasons. Harvard University law professor Alan Dershowitz wrote:Chapman University School of Law professor Ronald Rotunda has responded as follows:
There has also been analysis of whether several Justices had a conflict of interest that should have forced them to recuse themselves from the decision. 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 Arizona. 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, although George W. Bush was still president during O'Connor's retirement. According to Steven Foster of the Manchester Grammar School:
Pessimism about the ability of the justices to remain impartial was not limited to those outside the court. Law clerks for the court at the time would later recall that Stevens, Breyer, Ginsburg and Souter had begun drafting their dissent before oral arguments began. They also noted Justice Scalia had begun campaigning for the stay of the recount before the court had received Gore's response to Bush's request and later recalled that he was so incensed at Stevens' dissent, that he requested the release of the opinions be delayed so that he could amend his opinion to include a response to Stevens. Kennedy is also reported to have sent out a memo which accused the dissenters of "trashing the court". Later, court personnel, as well as Ron Klain, speculated that there was an unspoken understanding that the judges on the winning side would not retire until after the next election, as a way of preserving some sense of fairness. Indeed, no Supreme Court Justices retired during President Bush's first term.
It has been argued that none of the justices ended up voting in a way that was consistent with their prior legal jurisprudence--though this conclusion has been challenged by George Mason University law professor Nelson Lund. The five conservative justices decided to involve the federal judiciary in a matter that could have been left to the states, while also expanding the previous US Supreme Court interpretations of the Equal Protection Clause. Meanwhile, the liberal justices all supported leaving the matter in the hands of a state and also sometimes advocated in favor of a narrower reading of existing Equal Protection Clause SCOTUS precedents. This increased the perceptions that the judges used their desired results to drive their reasoning, instead of using legal reasoning to arrive at a result. David Cole of Georgetown Law argued that, as a way of trying to rehabilitate the court's image after Bush v Gore, the court became more likely to reach a liberal decision in the four years after Bush v Gore than they had been before the case, and that the conservative justices were more likely to join the liberals rather than the other way around.
Recount by media organizations
In 2001, a consortium of news organizations, assisted by professional statisticians from NORC at the University of Chicago, examined numerous hypothetical ways of recounting all the Florida ballots. The study was conducted over a period of 10 months. The consortium examined 175,010 ballots that vote-counting machines had rejected. In each alternative way of recounting the rejected ballots, the number of additional votes for Gore 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.Likewise, 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. On the other hand, the study also found that if the official vote-counting standards had not rejected ballots containing overvotes a statewide tally would have resulted in Gore emerging as the victor by 60 to 171 votes. These tallies conducted by the NORC consortium are caveated with the statement: "But no study of this type can accurately recreate Election Day 2000 or predict what might have emerged from individual battles over more than 6 million votes in Florida's 67 counties."
Florida also received an additional 2,411 overseas ballots after the 7 PM deadline on election day. Florida officials rejected these overseas ballots, mostly from members of the United States Armed Forces. By rejecting those ballots, Florida provided Gore a 202-vote lead in the state. The United States District Court for the Northern District of Florida on December 8, 2000, overturned these rejections and ordered that all federal write-in ballots previously rejected be counted. The effect of these additional overseas ballots provided Bush with a 537-vote lead in the state. The ruling also noted:
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."
The ballot review later conducted by a consortium of news organizations did not have access to these decisive ballots, which in many cases had disappeared and could not be produced.
Critiques
A number of subsequent articles have characterized the decision as damaging the reputation of the court, increasing the view of judges as partisan, and decreasing Americans' trust in the integrity of elections.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 to grant a stay that preliminarily stopped the recounts based on Bush's likelihood of success on the merits and the possible of irreparable injury to Bush. Although stay orders normally do not include justification, Scalia concurred to express some brief reasoning to justify it, saying that one potential irreparable harm was that an invalid recount might undermine the legitimacy of Bush's election. 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 prevented 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. Scott Lemieux of University of Washington pointed out that if recounting votes without a uniform statewide standard were truly a violation of the Equal Protection Clause, this should have meant that the initial count, which also lacked a uniform standard, was itself unconstitutional. 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:
The dissent of Justice Stevens was criticized by George Mason University School of Law Professor and former Associate White House Counsel to the George H. W. Bush administration Nelson Lund. Lund said: "he 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.
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".
A subsequent article in Vanity Fair quoted a number of the court's clerks at the time who were critical of the decision. They noted that, despite the per curiam decision's declaration that the case was taken "reluctantly", Justice Kennedy had been rather enthusiastic about taking the case all along. They felt at the time, as had many legal scholars, that the case was unlikely to go to the Supreme Court at all. In fact some of the justices were so certain that the case would never come before them that they had already left for vacations.
Public reaction
Editorials in the country's leading newspapers were overwhelmingly critical of the decision. A review by The Georgetown Law Journal found that the nation's top newspapers, by circulation, had published eighteen editorials criticizing the decision, compared with just six praising it. They similarly published twenty-six op-eds criticizing the decision, compared to just eight defending the decision.Polls showed a range of reactions, with 37%-65% of respondents believing that personal politics influenced the decision of the justices, depending on the poll. A Princeton Survey poll recorded 46% of respondents saying that the decision made them more likely to suspect the partisan bias of the judges in general. An NBC News/Wall Street Journal poll showed that 53% of respondents believed that the decision to stop the recount was based mostly on politics.
An article in Slate listed the case as the first in a series of events that eroded American trust in the results of elections, noting that the number of lawsuits brought over election issues has more than doubled since Bush v. Gore.