BUSH V. GORE

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 repre-
sented a 36-day American drama of the highest
order, captivating the world’s attention as the
U.S. judicial system was ensnared by a whirl-
wind 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 forg-
ing 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 nation-
wide 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. presiden-
tial race. Early returns combined with exit
polling results indicated that Gore had a com-
manding 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 cor-
rect 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 courtordered,
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.