Bush v. Gore

Bush v. Gore, 531 U.S. 98 (2000) argued 11 Dec. 2000, decided 12 Dec. 2000, by vote of 5 to 4; Rehnquist for the Court, Scalia and Thomas concurring, Stevens in dissent, Ginsburg and Breyer join, dissenting, souter in dissent; Breyer, Stevens, and Ginsburg join, dissenting; Ginsburg in dissent; stevens, Souter, and Breyer join, dissenting; Breyer in dissent; Stevens, Ginsburg, and Souter join, dissenting. The accusation of partisan decision making on the U.S. Supreme Court was never more intense than in the wake of the decision in Bush v. Gore, when five conservative justices relied on innovative readings of the Constitution in order to resolve the 2000 presidential election dispute in favor of the more conservative candidate.

The outcome of the election between Vice President Al Gore (Democrat) and Texas Governor George W. Bush (Republican) came down to an unbelievably close vote in Florida. Trailing by just a few hundred votes, the Gore campaign requested hand recounts of ballots in four Democratic counties, arguing that manual inspections might lead to the discovery of legal votes that were inadvertently uncounted by the vote‐tabulating machines. The strategy of the Bush campaign was to mobilize all political resources and sympathetic office holders to block all efforts at hand recounts.

Bush v. Gore arose at the end of the recount saga, after the Florida supreme court ruled that state law required a statewide manual recount of all ballots in which a machine failed to register a vote for president. Less than twenty‐four hours later, the five most conservative justices on the U.S. Supreme Court issued an emergency injunction halting this recount, with Justice Scalia explaining that the review of these ballots threatened “irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” The four dissenters, led by Justice Stevens, responded that “counting every legally cast vote cannot constitute irreparable harm.”

Oral arguments were held two days later, and late the following day, on 12 December, the same five justices ruled that no more recounting could take place. They noted that the Florida supreme court did not articulate a more specific standard for determining a legitimate vote than the statutory standard of “clear intent of the voter,” and this made it possible that identical ballots would be treated differently in different parts of the state. This, they said, violated the equal protection clause of the Fourteenth Amendment. They did not explain what this innovative interpretation might mean more generally for vote counting in American elections, or even how it applied to the original vote totals in Florida, where balloting and counting practices varied widely from county to county. Instead, the majority said simply, “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

While under different circumstances it might have been possible to remand the case back to the Florida supreme court so that it might create a more explicit counting standard, the majority announced that it was their belief that Florida intended to resolve all disputes by 12 December so that the state would benefit from a federal law that ensured the state's electoral college votes would not be challenged in the Congress. Because their decision was handed down on the evening of 12 December, the majority invoked this deadline in support of their conclusion that there was no time left to count votes in Florida.

Three members of the majority—Chief Justice Rehnquist and Justices Scalia and Thomas—added a concurring opinion in which they argued that the state's election statutes did not support the remedy of a statewide recount under these circumstances, and thus the Florida supreme court's decision violated Article II of the U.S. Constitution, which gives to the state legislature the exclusive authority to determine the manner by which presidential electors will be chosen.

Each of the four dissenters wrote separately to argue that the U.S. Supreme Court had no business interfering in this presidential election dispute. Two of the dissenters, Justices Breyer and Souter, expressed some sympathy for the equal protection argument, but they stressed that these issues were more properly addressed by the state and (if necessary) the Congress. They argued it would have been best to remand the case to the Florida supreme court as the institution authorized to determine whether Florida should continue counting under a more explicit recount standard. Justices Stevens and Ginsburg emphasized that the Florida supreme court's interpretation of the state statute was completely defensible and that the majority's opinion was inconsistent with the previously expressed views of those justices on equal protection and federalism. The practical effect of this decision was to declare Bush the president‐elect. Gore conceded the election the following day. While the majority insisted that its intervention was an “unsought responsibility,” the most frequently cited language in the Bush v. Gore opinions belonged to Justice Stevens, who lamented that the actual loser of this presidential election was “the Nation's confidence in the judge as an impartial guardian of the rule of law.”

Bibliography

Howard Gillman , The Votes that Counted: How the Courts Decided the 2000 Presidential Election (2001).

Howard Gillman