Bush v. Gore, 531 U.S. 98 (2000), was a U.S. Supreme Court case heard on December 11, 2000, which directly influenced the outcome of the 2000 presidential election. In three separate opinions, seven justices found that a ballot recount then being conducted in certain counties in the State of Florida was to be stopped due to the lack of a consistent standard; two justices disagreed. A 5-4 majority further declared in a per curiam opinion that there was insufficient time to establish standards for a new recount that would meet Florida's deadline for certifying electors.

The decision stopped the statewide recount that was occurring in Florida and allowed Florida Secretary of State (and Bush's Florida campaign co-chair) Katherine Harris to certify George W. Bush as the winner of Florida's electoral votes. Florida's 25 electoral votes gave Bush a majority of the electoral college with 272 votes and enabled him to win the Presidency.

The Presidential election in question took place on November 7, 2000. Under the Electoral College system, each state conducts its own popular election for president, and the winner of each state's election receives a number of "electoral votes." The winner of a majority of the electoral college is elected President of the United States. In 2000, 270 electoral votes were required for victory.

On November 8, 2000, the Florida Division of Elections reported that Bush had a margin of victory of 1,784 votes.[1] The margin of victory was less than 0.5% of the votes cast so an automatic machine recount was issued. 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.[2]

Florida's election laws^[1] allow 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. The 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 of the counties conducting manual recounts 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.[3] Prior to the 5pm deadline on November 14, Volusia county completed its manual recount and certified its results. At 5pm, Florida's 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.[4]

Harris issued a set of criteria^[3] 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.[5]

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, in Palm Beach County Canvassing Board v. Harris (Harris I) 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 ("Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . .").

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.[6] 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, or about 0.01%.[7]

BACKGROUND

On November 27, Gore filed suit to contest the certified results of the election. The case was heard by Judge N. Sanders Sauls, who denied the requested relief on December 4. Gore appealed the case to the Florida Supreme Court. On December 8, the Florida Supreme Court issued its opinion in Gore v. Harris (Harris II). The court ordered a manual recount of only undervotes,^[5] to be conducted by the Leon County district court, for ballots from the counties and portion of Miami-Dade county not subject to the previous manual tally. The court further ordered that the results of the November manual recount, which was conducted by the various County canvassing boards, for disputed ballots in three counties and portions of a fourth county, which would have presumeably included some overvotes, be included in the final state tally. Bush appealed the decision to the U.S. Supreme Court on December 9, and the Court issued a 5-4 injunction stopping the 64 of 67 county recount pending a final decision. The split on this was the same as the 5-4 split in the final ruling.

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.

RELEVANT LAW

U.S. Const. amend. XIV, § 1

"No State shall...deny to any person...the equal protection of the laws."

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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...."

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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 ISSUES

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 court, especially the majority, had trouble with the timing: they thought that there was little chance of the recount being finished by the December 12 safe harbor deadline.

Bush was essentially making two distinct claims:

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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 unconstitutional. 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.

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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, Chief Justice Rehnquist, Justice Scalia and Justice Thomas, accepted Bush's argument on this issue.

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The remedy

If the current recount were unconstitutional, the State of Florida would have to fashion the proper remedy. Since oral arguments in the case occurred 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 ensure their electoral votes could not be challenged in Congress. This safe harbor deadline was December 12, the very next day. It is possible that the recount would have been finished by this non-binding deadline if the Supreme Court had not stayed the recount on December 9th.

Consequently, the court had to address whether to allow the redo of the recount that would subsequently be submitted by Florida, 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.

Bush was represented before the Court by Theodore B. Olson, a Washington, D.C. lawyer and future Solicitor General. Gore's oral argument was delivered by attorney David Boies.

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The decision

A 5–4 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. It cited, in particular, the use of differing standards; the combination of full manual recounts for some counties and for selected precincts within Miami-Dade County with partial recounts for other counties and for the rest of Miami-Dade; and the perceived impracticality of the process ordered by the Florida court. 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 steeped 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 some of 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 majority, however, accepted the finding of the Florida Supreme Court that the Florida legislature intended to obtain the benefits of federal statute. This included the December 12 deadline. Thus, sending the case back to the Florida Supreme Court until December 18 could be not appropriate under Florida statute. ([8] 4th & 5th paragraphs from end).

The dissenting opinions were notable for their unusually harsh treatment of the majority. Justice Stevens' dissent scathingly concluded:

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.

The decision was widely criticized for the following sentence in the majority opinion:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

The court's defenders considered this a reasonable precaution against the possibility that the decision might be read overbroadly, arguing that in the short time available it would not be appropriate to attempt to craft language spelling out in greater detail how to apply the holding to other cases. Critics, however, interpreted the sentence as stating that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable. 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

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 v. 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)

Al Gore Concedes the 2000 Election

From www.historyplace.com 

On Tuesday, November 7, 2000, a presidential election was held featuring Democratic candidate, Vice President Al Gore, versus Republican candidate, George W. Bush. After the polls closed, it became apparent that the outcome of the very tight race would hinge on the results in Florida. At 2:16 a.m. early Wednesday morning, TV networks began declaring "Bush wins" based on their own Florida polling data and on each other's predictions. At 2:30 a.m., Al Gore telephoned Bush and offered his congratulations, conceding the election.

However, within the next hour, Gore's political advisors determined that the TV networks had made an error in deciding the super-close Florida results in favor of Bush. An extraordinary event then occurred as Al Gore telephoned Bush once more and this time 'un-conceded.' Following this, the TV networks retracted their earlier statements that Bush had won. Thus, Americans awoke on Wednesday morning without a clear victor in the 2000 presidential election.

Thirty six days of political and legal turmoil followed in which lawyers for Bush and Gore fought each other bitterly in the Florida courts over the subsequent recount, filing dozens of lawsuits. The main issue involved thousands of questionable votes cast by Democratic voters who may have been confused by the balloting method. To vote for the candidate of their choice, each voter needed to puncture a computer punch card at the correct spot, using a small metal hole puncher. Many Democrats later claimed they had been confused by the placement of names on the ballot and had voted for the wrong candidate, punching a hole for conservative fringe candidate, Pat Buchanan, instead of Al Gore. Numerous voters also voted for more than one presidential candidate or failed to make a hole in the punch card and only indented their choice. All of this served to fuel the storm of controversy surrounding the various localized recounts throughout Florida.

By late November, the U.S. Supreme Court had agreed to step in at the request of the Bush legal team. The court then issued two major rulings, both of which amounted to defeats for Gore's legal team. The second and final ruling occurred on Tuesday night, December 12. The five conservative Supreme Court justices sided with Bush while the four liberal justices sided with Gore. The 5 to 4 ruling effectively halted any further recounting and let stand a declaration by Florida's secretary of state that Bush had won Florida by 537 votes, and thus the presidency. On Wednesday evening, Al Gore appeared on national TV to concede, delivering this speech which was widely praised for its gracious and friendly tone.