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 .