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Bush v. Gore
Bush v. Gore, 531 U.S. 98 (2000), was a controversial U.S. Supreme Court case heard on December 11, 2000. The decision directly impacted the result of the 2000 presidential election because it stopped the statewide recount that was occurring in Florida and allowed Florida to certify George W. Bush the winner for the State of Florida. With Florida's 25 electoral votes, Bush had enough electoral votes to win the Prisidency.
In a 7-2 per curiam opinion, the court ordered that a ballot recount then being conducted in certain counties in Florida was to be stopped due to lacking a consistent standard. The court further declared, in a 5-4 vote, that there was insufficient time to establish standards for a new recount that would meet Florida's deadline for certifying electors.
The election in question took place on November 7, 2000. Under the Electoral College system, each state conducts its own individual election for president. The winner of each state's election receives a number of "electoral votes" equal to the state's number of representatives in the House of Representatives and the Senate. At the end of the nationwide ballot count, and recounts in Oregon and New Mexico, Gore led Bush 267–246 in the electoral vote. 270 votes were required for victory. It was uncertain who would win Florida's 25 electoral votes because the election in that state was so close. On November 8, 2000, the Florida Division of Elections reported that Bush had received 2,909,135 votes, and Gore had received 2,907,351, a margin of victory for Bush of 1,784 votes. Because the margin of victory was less than 0.5% of the votes cast, an automatic machine recount occurred. 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.
Florida election law allows 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. All 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,2 and several counties 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. Prior to the 5pm deadline on November 14, Volusia county completed it's manual recount and certified its results. At 5pm, 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.
Harris issued a set of criteria3 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.
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.4 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 ordered Harris to accept the results of any manual recount certified before November 26 at 5pm.
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.
While the 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. 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.
On November 27, Gore filed suit to contest the certified results of the election, and appealed the case to the Florida Supreme Court on November 29. On December 8, the Florida Supreme Court ordered manual recounts in all Florida counties where undervotes5 had not been subject to manual tabulation. Bush appealed the decision to the U.S. Supreme Court on December 9, and the Court issued an injunction stopping the statewide recount pending a final decision.
The oral arguments in Bush v. Gore were brought before the court on December 11 by lawyers representing both sides. 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.
U.S. Const. amend. XIV, § 1
"No State shall...deny to any person...the equal protection of the laws."
U.S. Const. art. II, § 1, cl. 2
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...."
3 U.S.C. § 5
"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."
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?
- If the recounts are unconstitutional, what is the remedy?
The merits of Bush's claims
Bush was essentially making two distinct claims:
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. His argument was that since each county used its own standard to count each vote, 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.
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 unconsitutional. 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.
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.
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.
Only three justices accepted Bush's argument on this issue.
If the current recount is unconstitutional, the Court had to fashion the proper remedy. Since oral arguments in the case occured 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 prevent their electoral votes from being challenged in Congress. This safe harbor deadline was December 12, the very next day.
Consequently, the court had to address whether to redo the recount under a new statewide standard, but miss the deadline established by 3 U.S.C. § 5; or stop all recounts and go with the certified results of November 26.
Five justices decided to stop all recounts.
A 7–2 majority ruled that the Florida recount was unconstitutional. The majority opinion, which represented the opinions of five justices, noted significant problems in the uneven way the votes were being recounted. Furthermore, this 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 ("if the voter's intent is clear, the vote should be counted") 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 case was shrouded 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 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" to "George Bush's reputation as the legitimate winner". 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).
The minority dissents noted 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 dissenting opinion written by Justice Stevens concluded with what many consider to be a scathing indictment:
- 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.
Also notable was the dissent of Justice Ginsburg, which after a rather scathing opinion concluded with I dissent rather than the standard I respectfully dissent, a rare breach of convention observers took to highlight the stark and bitter division within the court regarding this case.
The decision was widely criticized for a special provision in the majority opinion, stating that the case did not set precedent in any way, and could not be used to justify any future court decision. It was seen by many as a departure from the stare decisis principle.
In brief the breakdown of the decisions were:
- The remedy of ceasing all recounts was approved by 5 to 4. (Kennedy, O'Connor, Rehnquist, Scalia, and Thomas in support; Breyer, Ginsburg, Souter 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)
==Endnotes==See Fla. Stat. § 102.166.
Note 2: See Fla. Stat. § 102.112.
Note 3: 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. 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).
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), available at here.
Note 4: The way that the case arrived in the Florida Supreme court was actually more complicated. Gore initially filed in the Florida Circuit Court and lost. He then appealed to the First District Court of Appeals, which certified the matter to the Florida Supreme Court under a provision of the Florida constitution. See Fla. Const. art. V, § 3(b)(5); Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220, 1227 (2000).
Note 5: An undervote is a vote that was intended to be cast, but was not counted because the machine could not read any vote on the ballot. This is in contrast to an overvote, which was not counted because the voter cast a vote for more than one candidate.
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