Bush v. Gore

I. Perhaps no event better illustrates the power of the United States Supreme Court than the resolution of the 2000 presidential election. The election between George Bush and Al Gore was the first election, since 1888 (Harrison against Cleveland) where the winner of the popular vote did not win the electoral vote. Election night 2000 was a cliffhanger that went on for weeks. Many people went to bed that night thinking that Al Gore had won, only to discover in the morning that George W. Bush had been declared the winner. In fact, the election was simply too close to call. Several states were up for grabs, but in the end it came down to one: Florida. Florida electors were unable to commit themselves to either Bush or Gore owing to the closeness of the vote.

II. The main issue being disputed was whether or not the state of Florida should recount its votes and extend the deadline for determining a winner. Gore, of course, wanted to recount the votes in Florida to makes sure that everything was done correctly, because the results were so close. Bush, obviously, did not. The Supreme Court of Florida ruled for a vote recount and an extension, but the Supreme Court wanted to step in and stop this. Really, they were answering the questions: Were the recounts, as they were being conducted, constitutional? And if the recounts were unconstitutional, what was the remedy?

III. In Bush v. Palm Beach County Canvassing Board, the Court hoped to end the election crisis by putting a stop to the Florida Supreme Court's decision to extend the time for certifying the vote past the period set by state law. But by the time the Court began hearing arguments in the appeal on December 1, the certification had already occurred. The justices sent the case back down to the Florida Supreme Court, instructing the lower court to rewrite its opinion so that it would not create a conflict between state and federal law.
But the Florida Supreme Court ordered a statewide recount of ballots. Unlike its earlier decision though this one was not unanimous. With the Florida justices split 4-3, the U.S. Supreme Court once again exercised its discretionary appellate review jurisdiction and granted certiorari, or review, to Bush v. Gore.

The day after the Florida Supreme Court had ordered a recount, the U.S. Supreme Court granted a temporary stay (delay) in enforcing the Florida Supreme Court's order. The U.S. Supreme Court justices, too, were divided, 5-4. Days later, the Court explained that it had voted 5-4 to put a stop entirely to the Florida recount. Allowing the recount to go forward, the Court said, would violate the Equal Protection Clause of the Fourteenth Amendment. The U.S. Supreme Court sent the case back down to the Florida Supreme Court, which had no alternative but to dismiss it.

IV. Seven justices (the five Justice majority plus two more) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties. Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts. Justices Breyer and Souter 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. The decision was definitely made a conservative majority. Some critics of the decision like to accuse the Supreme Court of deciding on the president, not the country.


V. Bush argued that recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment, because there was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. Each county used its own standard to manually recount each vote, and Bush argued that some counties would have more lax standards than other counties. For example- 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 used for manual recounts.

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. Gore also 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.

The Supreme Court, in a per curiam opinion, ruled that the Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause of the Fourteenth Amendment. 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, and county to county, even when identical types of ballots and machines were used.

According to the Court, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter'") 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."

The Court ruled 5–4 that no constitutionally valid recount could be completed by a December 12 "safe harbor" deadline. 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, because he was not optimistic about how the Florida justices would react to further arguments.

VI. As Much of a not-George Bush fan as I am, I agree with this Supreme Court Decision. I think overall, the case (like probably every other one in history) was a really sticky situation for the justices to be in. They definitely knew that their decision would in turn decide the president of the United States. Making too many waves with this case would cause too much trouble, and I’m pretty sure the justices did not want to start any kind of reformation on the electoral college system or the vote counting system of the Florida counties. I guess it does kind of seem backwards that the winner of the popular vote is not actually the man who gets elected as president, but again, until someone wants to step up and offer a revamped version of the electoral college, I think we’ll have to stick with this decision…