BUSH V. GORE

Introduction

In Bush v. Gore 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (U.S. 2000), the U.S Supreme Court ruled that the system devised by the Florida Supreme Court to recount the votes cast in the state during the 2000 U.S. presidential election violated the equal protection clause of the fourteenth amendment to the federal Constitution. Because there was no time to create a system that was fair to both candidates, the Supreme Court effectively stopped the recount process in its tracks, allowing george w. bush of Texas to become the 43rd president of the United States.

Bush v. Gore was more than just a lawsuit or a series of lawsuits about technical areas of Florida election law. Instead, Bush v. Gore represented a 36-day American drama of the highest order, captivating the world's attention as the U.S. judicial system was ensnared by a whirlwind of power politics that saw the Republican presidential candidate clinging to a slim lead that seemed to dwindle by the day, if not by the hour, while the Democratic candidate kept forging ahead, trying to build momentum to eclipse his rival. At the same time, the nation witnessed the Bush and Gore legal teams doing whatever they could to secure what each candidate felt rightly belonged to him. Having lost the nationwide popular vote by approximately 500,000 votes, Bush defeated Gore in Florida by a mere 537 votes to capture that state's 25 electors, enough to win the electoral college and the presidency.

Election Night

As daylight turned to twilight on the East Coast of the United States, it became evident that Florida's 25 electoral votes held the key to victory in the November 7, 2000, U.S. presidential race. Early returns combined with exit polling results indicated that Gore had a commanding lead in the state. By 8:00 p.m. EST, all of the major television networks projected that Gore had defeated Bush to become the nation's next president.

However, the polls had not yet closed in the Florida's panhandle, which is in the Central time zone. A few hours later, the lead swung to Bush, forcing the networks to retract their projections. By 2:15 EST, Bush appeared to have a decisive lead of about 50,000 votes, and all of the major networks were declaring Bush the winner. Gore even called Bush privately to concede. But while Gore was en route to Nashville, Tennessee, to make his public concession speech, Gore's aides informed him that Bush's lead had shrunk to a few thousands votes, at best. Gore immediately withdrew his concession, and the embarrassed networks announced the race was too close to call.

When the votes were finally tallied on November 8, minus the late-arriving overseas ballots, Bush was ahead of Gore by 1,784 votes, or less than .5 percent of the total number of votes tabulated for the U.S. presidency in Florida. Under Florida Election Law, a recount was automatic in these circumstances, unless Gore refused, which he did not. The recount was performed by machine and was designed to correct any errors in the first machine tabulation of the vote. On November 10 the first recount was complete. Bush's lead had dwindled to 327 votes.

The Controversy Begins

Before the results of the first recount were announced, two controversies had arisen. First, all Palm Beach County voters had cast their votes on confusing ballots known as "butterfly ballots", which displayed candidates' names on both sides of the ballot, one pair of candidates' names on top of the other, with arrows pointing toward the middle of the ballot, where voters were required to mark their vote by using a stylus to punch through a small circular or rectangular "chad" (a perforated punchhole used to record votes). The poorly configured ballot had caused hundreds or more of elderly Jewish voters to mistakenly cast their vote for pat buchanan, a right-wing candidate for the reform party, someone whom such voters are demographically unlikely to support.

Second, Gore's legal team had discovered an unusually high number of "undervotes" (ballots that the tabulating machines had not counted as a vote for any presidential candidate) in counties that used punchcard voting. Florida's election law allows both candidates to "protest" an election by requesting a manual recount within seven days of the election, and the county canvassing boards "may" agree to authorize one, Fla. Stat. sections 102.112, 102.166. On November 9 Gore invoked these statutory provisions, asking the canvassing boards of Broward, Miami-Dade, Palm Beach, and Volusia Counties to authorize a manual recount. Gore had carried each of those counties by wide margins and expected to benefit from a manual recount of the ballots in those heavily Democratic counties.

Notwithstanding Republican opposition, all four counties authorized a manual recount of several "sample" precincts. Once the sample precincts had been manually recounted, state law authorized the canvassing boards to order a full recount of all ballots cast in the county if the results from the sample precincts indicated "an error in the vote tabulation which could affect the outcome of the election," Fla. Stat. section 102.166.

The problem was that Florida law required all counties in the state to submit their final counts by November 14, again minus the overseas votes, which could be submitted until November 18. Only Volusia County met the November 14 deadline, and Florida secretary of state Katherine Harris, the state's highest election official, refused to extend the deadline so the manual recount could be completed in the other three counties. In making her decision, Harris was accused of being influenced by Republican Florida governor Jeb Bush, brother of presidential candidate George W. Bush, even though Harris was a prominent member of the state republican party who had been elected to office and not appointed by the governor. On November 18 Harris announced that the overseas votes had increased Bush's lead from 327 to 930 votes.

The Broward, Palm Beach, and Miami-Dade canvassing boards sued Harris to extend the deadline on which they had to submit their final counts, and though they lost in trial court, the Florida Supreme Court overruled the trial court and extended the deadline to November 26. The state high court authorized the canvassing boards to order countywide manual recounts if they concluded that the results from their sample precincts revealed "an error in the vote tabulation which could affect the outcome of the election." Republicans had argued that "an error in vote tabulation" meant a machine error in tabulating the vote. But the Florida Supreme Court ruled that this phrase also included voter error in failing to fully dislodge the chad from the ballot, such that the chad was left "hanging" by one corner, "swinging" by two corners, attached by three corners (a "tri-chad"), or otherwise "dimpled" or "pregnant" (dimpled and pregnant chads referred to bulging, indented, or marked chads that remain attached to the ballot by all four corners).

On remand all three canvassing boards concluded that "an error in vote tabulation" had occurred and ordered countywide manual recounts of hundreds of thousands of votes across several hundred precincts. Only Broward County completed its recount by the newly extended deadline, and the Florida Supreme Court refused to extend the deadline further for Palm Beach and Miami-Dade Counties. With Bush holding a lead of 537 votes after factoring in the manually recounted ballots from Broward County, Katherine Harris certified Bush the winner on November 27. Gore then sued Harris to contest the certification, again losing in the trial court but prevailing on appeal, where the Florida Supreme Court ruled that Harris had to include in her certified totals the untimely recounted votes from Palm Beach and Miami-Dade Counties, which whittled down Bush's lead to 154 votes. The court also ordered a manual recount for all the 60,000 undervotes cast in the state but failed to specify the criteria by which those votes would be counted as having been made for Bush or Gore. The canvassing boards of each county were free to determine their own criteria.

The U.S. Supreme Court Steps In

Meanwhile, Bush had asked the U.S. Supreme Court to review the Florida Supreme Court's decision extending the deadline by which the counties had to submit their final counts. On December 4 the U.S. Supreme Court vacated the state supreme court's decision, remanding the case so the Florida high court could clarify the grounds of its decision. The U.S. Supreme Court expressed concerns that the Florida Supreme Court had usurped the state legislature's authority to determine the manner in which a state's presidential electors are appointed for the electoral college, an authority conferred by Article II of the federal Constitution. Five days later the U.S. Supreme Court, again at Bush's request, stayed the Florida State Supreme Court's decision ordering a statewide hand recount of the undervote, pending further review of that decision by the nation's high court.

After further review, the U.S. Supreme Court announced its decision on December 12, 2000. The Court reversed the Florida Supreme Court's decision ordering a statewide hand recount, declaring that the order violated Florida voters' right to equal protection of the laws guaranteed by the Fourteenth Amendment. "When a court orders a statewide remedy," the Supreme Court said in a per curiam opinion, "there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." The Court said that these requirements were missing from the process by which the court-ordered manual recount was being conducted.

The Florida Supreme Court had provided the canvassing boards with no uniform standards to evaluate the ballots cast by Florida voters. To the contrary, the U.S. Supreme Court observed, "standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another." For example, the Court noted that Palm Beach County changed its standards three times during the manual recounting process, fluctuating from more strict standards that precluded counting pregnant chads to more relaxed standards that allowed hanging, swinging, or trichads to be counted. Broward County, by contrast, used a more forgiving standard throughout its entire recount process and uncovered almost three times as many new votes as Palm Beach County, a result "markedly disproportionate" to the difference in population between the counties," the Court said.

The equal protection problems arising from the absence of uniform standards in evaluating a chad's status primarily affected the undervotes, or those ballots in which the vote tabulating machines detected that no vote for the presidency had been cast. But the Court said there was also an equal protection problem with the overvotes, or those votes in which the ballot reflected more than one vote for the presidency. Voters who marked their ballot in a way that was not readable by the machine (the undervotes) stood to have their votes counted through the manual recount process, while those who marked two candidates in a way that was discernable by the machine would not have had their votes counted, even if a manual examination of the ballot would reveal the voter's intent, because the Florida Supreme Court excluded the overvote from the statewide recount it had ordered.

While seven justices agreed that the court-ordered, statewide recount violated the Equal Protection Clause, only five justices agreed on the remedy. Chief Justice william rehnquist and Associate Justices sandra day o'connor, antonin scalia, clarence thomas, and anthony kennedy noted that Florida law required the state to select its electors for the electoral college by December 12, which was the day the Court announced its decision in Bush v. Gore. Rehnquist, O'Connor, Scalia, Thomas, and Kennedy concluded that it was thus impossible to complete a statewide recount by day's end. For all intents and purposes, then, a majority of the Court ruled that the 2000 U.S. presidential election was over and George W. Bush had won.

Justices john paul stevens, david souter, stephen breyer, and ruth bader ginsburg dissented, with Stevens, Breyer, and Ginsburg each writing their own dissenting opinion. The December 12 deadline chosen by the majority was misleading, the dissenting justices asserted, since under federal law the electors had until December 18 to deliver their votes to Congress and until December 28 before Congress could request the electors to deliver their votes had they not already done so. "By halting the Florida recount in the interest of finality," Justice Stevens wrote, "the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines." In addition, Breyer stated: "An appropriate remedy would be to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida … and to do so in accordance with a single uniform standard."

The Legacy of Bush v. Gore

On January 6, 2001, Congress met to count the electoral college votes. Bush was declared the winner by a 271-266 margin, with one of Gore's electors abstaining in protest over the District of Columbia not having statehood. Fourteen days later George W. Bush was inaugurated as the 43rd president of the United States.

Following the inauguration, several news services set out to determine who "really" won the 2000 presidential race, attempting to conduct their own manual recounts of the ballots cast in the four contested counties. Most of the news agencies reported that Gore would not have picked up enough additional undervotes to have won the election. However, the Palm Beach Post reported that its examination of approximately 19,000 overvotes cast on the Palm Beach County "butterfly ballot" indicated that Gore lost as many as 6,600 votes.

In early 2003 it was probably too early to fully assess the legacy of Bush v. Gore. Immediately after the U.S Supreme Court announced its decision stopping the recounts and effectively ending the election, liberal commentators condemned the five unelected conservative justices for having "hijacked" U.S. democracy by judicial fiat. Earlier Florida Supreme Court decisions in the Bush v. Gore saga had been assailed by conservative commentators on similar grounds.

Even more temperate Americans were forced to confront the fact that the personal politics of court members may have influenced the outcome of a high-stakes legal controversy: five politically conservative justices on the U.S. Supreme Court issued a decision in favor of the Republican Party's presidential candidate, which overturned a decision made by the predominantly liberal judges on the Florida Supreme Court in favor of the Democratic Party's presidential candidate, demonstrating that the judiciary's ability to remain independent of partisan politics is compromised when the subject matter of the "legal" controversy involves a cutthroat political battle for the nation's highest office.

further readings

Bugliosi, Vincent. 2001 Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President. New York: Thunder's Mouth Press.

Dershowitz, Alan M. 2001. Supreme Injustice: How the High Court Hijacked Election 2000. New York: Oxford Univ. Press.

Gillman, Howard. 2001. The Votes That Counted: How the Court Decided the 2000 Presidential Election. Chicago: Univ. of Chicago Press.

Posner, Richard A. 2001. Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. Princeton, N.J.: Princeton Univ. Press.

BUSH V. GORE

BUSH V. GORE, 121 S. Ct. 525 (2000), the Supreme Court decision that ended the 2000 presidential election by ruling that no further recounting of the votes in Florida could occur. The 5 to 4 decision, issued at 10:00 p.m. on 12 December 2000 in the form of an unsigned per curiam opinion, left George W. Bush the certified winner of Florida's twenty-five electoral votes. Those electoral votes in turn provided the Texas governor's margin of 271 to 266 over Vice President Al Gore when the electoral college met six days later.

Destined to be one of the most disputed Supreme Court decisions in history, Bush v. Gore was the culmination of a thirty-four-day postelection period that began on the morning after the 7 November election with the simultaneous realization that the outcome in Florida would decide the presidency and that the result there was a statistical dead heat. Bush, the Republican candidate, apparently was ahead by fewer than two thousand votes out of nearly 6 million votes cast.

The Arguments

Amid reports of voter confusion and uncounted ballots, the strategy for both camps quickly became clear. For Gore, the Democratic candidate, it was imperative to seek recounts, and Florida's complex election law appeared to offer tools accomplishing this. For Bush the goal was to freeze in place his evanescent lead, and the Florida law's tight deadline for certifying the vote by one week after the election offered the prospect of accomplishing this. Teams of lawyers for both sides quickly assembled. Ultimately some two dozen lawsuits were filed in state and federal courts, raising a variety of claims. Two cases reached the U.S. Supreme Court, both brought by Bush as appeals of rulings by the Florida Supreme Court. Although the first case, Bush v. Palm Beach County Canvassing Board, 121 S. Ct. 471 (2000), decided by a unanimous per curiam opinion on 4 December, appeared to end inconclusively by instructing the state court to clarify its actions, it occupied a significant position in the legal trajectory that produced Bush v. Gore.

To bring Bush v. Palm Beach County Canvassing Board to the Supreme Court, the Bush team had first to persuade the justices that the case raised federal questions. The Florida Supreme Court had ruled on 21 November that the secretary of state should continue to accept returns from counties conducting recounts until 5:00 p.m. on 26 November, twelve days after the statutory deadline.

In their petition for certiorari filed at the Supreme Court the next day, the Bush lawyers asserted that the ruling raised three federal questions: that the "arbitrary, standardless, and selective manual recounts" violated the constitutional guarantees of equal protection and due process; that the extension of the deadline violated an 1887 federal law, the Electoral Count Act, 3 U.S.C. Sec. 5; and that the Florida Supreme Court had supplanted the state legislature's special role, set out in Article II of the Constitution, to determine the method for choosing electors.

Two days later, on 24 November, the U.S. Supreme Court accepted the case, limited to the latter two questions. The statute provided that a state's electors chosen according to procedures in effect before election day, with any disputes resolved by six days before the date for the meeting of the electoral college, would not be subject to challenge in Congress. The Bush lawyers argued that by extending the certification deadline, the state court had set new rules, thereby denying Florida's eventual electors the law's protection. The argument under Article II, which provides that states shall appoint electors "in such manner as the legislature there of may direct," was that the state court's interpretation of Florida law had infringed upon the legislature's unique constitutional role.

The Gore lawyers strongly disputed both these arguments, but in Bush v. Palm Beach County Canvassing Board, the Supreme Court did not resolve the debate. Rather, the unsigned opinion vacated the Florida court's decision on the ground that "there is considerable uncertainty as to the precise grounds for the decision" and instructed the state court to clarify whether and how it had taken the federal provisions into account.

The Final Word

No immediate response was forthcoming from the Florida justices, who instead turned almost immediately to a separate case, Gore's challenge under the state election law's "contest" provision to the certified election result that had left Bush 537 votes ahead. On 8 December, by a 4 to 3 vote, the Florida Supreme Court ordered a statewide manual recount of the thousands of "undervotes," ballots that when counted by machine had shown no vote for president. Reprising his earlier arguments, Bush appealed immediately to the U.S. Supreme Court, which the next afternoon issued an emergency stay of the recounts that had just begun and set the appeal for argument on 11 December.

For the first time the division within the Court was clear. Four justices, John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer publicly dissented from the stayin an opinion by Stevens, which prompted Antonin Scalia to defend the action on the ground that "the counting of votes that are of questionable legality" would cast a cloud on what Bush "claims to be the legitimacy of his election."

The divide proved unbridgeable. Five members of the court, Scalia along with Chief Justice William H. Rehnquist and Justices Clarence Thomas, Sandra Day O'Connor, and Anthony M. Kennedy, joined the unsigned opinion that was apparently written by Kennedy and O'Connor. It held that in the absence of standards for determining when a ballot validly indicated the intent of the voter, the recount as ordered by the Florida Supreme Court violated the constitutional guarantees of equal protection and due process by making it likely that similarly marked ballots would be accepted in some counties but rejected in others. As if in recognition of the unsettling nature of this conclusion in a country where no uniform rule governs the counting of ballots in the more than three thousand counties, the majority limited the holding to "present circumstances," effectively denying Bush v. Gore precedential value for other cases. A concurring opinion by Rehnquist, joined by Scalia and Thomas, argued that the recount also violated Article II and the Electoral Count Act.

Among the four dissenters, Stevens and Ginsburg said the recount raised no constitutional concern. Souter and Breyer said they were willing to accept the conclusion that the terms of the Florida recount violated due process or equal protection, although both justices emphatically insisted that the Court should never have accepted the appeal in the first place. Their acceptance of the majority's analysis was therefore highly conditional. In any event, they said the answer to any constitutional problem with the recount was to remand the case to the Florida Supreme Court for continued counting under uniform standards up to the 18 December date for the meeting of the electoral college if Florida so chose. However, the majority replied that no time existed for further counting because, it asserted, the Florida Supreme Court had indicated the state's desire to take advantage of the Electoral Count Act's "safe harbor," which would expire under the terms of that statute in two hours. The 2000 election was over. Gore conceded to Bush the next day.

BIBLIOGRAPHY

Ackerman, Bruce, ed. Bush v. Gore: The Question of Legitimacy. New Haven: Yale University Press, 2002. Academic essays on the decision, mostly critical.

Balkin, Jack M. "Bush v. Gore and the Boundary between Law and Politics." Yale Law Journal 110 (June 2001): 1407–1458. A strongly reasoned protest from an academic dissenter.

Correspondents of the New York Times. 36 Days: The Complete Chronicle of the 2000 Presidential Election Crisis. New York: Times Books, 2001. A collection of news articles and commentary as they appeared in the newspaper.

Dionne, E. J., Jr., and William Kristol, eds. "Bush v. Gore": The Court Cases and the Commentary. Washington, D.C.: Brookings Institution Press, 2001. A useful documentary collection.

Gillman, Howard. The Votes That Counted: How the Court Decided the 2000 Presidential Election. Chicago: University of Chicago Press, 2001. Strong analysis and criticism.

Greene, Abner. Understanding the 2000 Election: A Guide to the Legal Battles That Decided the Presidency. New York: New York University Press, 2001. A usefully linear and neutral account of the litigation.

Kaplan, David A. The Accidental President: How 413 Lawyers, 9 Supreme Court Justices, and 5,963,110 (Give or Take a Few) Floridians Landed George W. Bush in the White House. New York: William Morrow, 2001.

Political Staff of the Washington Post. Deadlock: The Inside Story of America's Closest Election. New York: Public Affairs Press, 2001. A journalistic reconstruction.

Posner, Richard A. Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. Princeton, N.J.: Princeton University Press, 2001. A leading federal judge defends the Supreme Court's role.

Rakove, Jack N., ed. The Unfinished Election of 2000. New York: Basic Books, 2001. Essays by law professors on the decision.

Sunstein, Cass R., and Richard A. Epstein, eds. The Vote: Bush, Gore, and the Supreme Court. Chicago: University of Chicago Press, 2001. Essays by law professors.

Toobin, Jeffrey. Too Close to Call: The Thirty-Six–Day Battle to Decide the 2000 Election. New York: Random House, 2001.

LindaGreenhouse

See alsoElection Laws ; Elections, Contested ; Elections, Presidential: 2000 ; Electoral College .