The Law School Authority

Bush v. Gore Case Brief

Summary of Bush v. Gore

George W. Bush, et al. v. Albert Gore, Jr., et al. (531 U.S. 98, 121 S. Ct. 525), commonly known as Bush v. Gore, was a controversial U.S. Supreme Court case heard on December 11, 2000. The case decided the outcome of the 2000 presidential election between Texas Governor George W. Bush and Vice President Al Gore.

In a 7-2 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 ruling in effect awarded Bush the presidency.

Background: The election in question took place on November 7, 2000. Under the Electoral College system, each state votes for the president separately: a victor is then declared in each state, and the victor in the state wins 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, Gore led Bush 266 – 246 in the electoral vote. 270 votes were required for victory: Florida, with 25 electoral votes, did not have an official victor because the result was within the margin of error for machine counting; Bush had the lead following the machine count, by a very small margin.

Gore sought a manual recount of votes in several Florida counties. This was supported by Florida Attorney General Bob Butterworth, a Democrat and chairman of the Florida Gore campaign, and opposed by Florida Secretary of State Katherine Harris, a Republican and co-chair of the Florida Bush campaign. On November 14, while the Palm Beach County Canvassing Board was recounting its ballots by hand, Harris officially certified the election for Bush.

Gore and Palm Beach filed suit against Bush and Harris in the Florida Supreme Court (Palm Beach County Canvassing Board v. Harris), and won a judgment on November 21 stating that Harris had abused her discretion and that the recount should go forward.

On November 22, Bush appealed to the United States Supreme Court in Bush v. Palm Beach County Canvassing Board, stating that the decision was in violation of a federal statute requiring electors to be finalized at a given point before the Electoral College met. The two parties delivered oral arguments to the Court on December 1. On December 4, the Court temporarily nullified the decision of the Florida state supreme court pending clarification of the legal basis for their rulings, and remanded the case to Florida.

The Gore team subsequently filed four more suits on other legal issues: all four were struck down by lower courts, but the Florida Supreme Court reversed the decision in the last case, Gore v. Harris, on December 9, stating that Harris could not halt the recount of potential undervotes in the targeted counties. The Bush team filed for certiorari to the U.S. Supreme Court on the basis that the Florida court’s opinion was contrary to the U.S. Constitution.

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 deliberatingBush v. Gore, and the two cases were then combined.

The parties’ claims: Bush, represented by Theodore Olson, charged that the recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because the votes were being counted unevenly, with standards varying from county to county and recounts in counties where he could have been likely to have gained votes not even being conducted, Bush argued, the decision went against the language in the Constitution stating “nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”

Gore, represented by David Boies, responded that the Florida Supreme Court had done everything it could do to ensure equal treatment of both parties, and that requiring all ballots to be treated in the same fashion would require a uniform federal standard for counting votes, something that had never been established. Gore also claimed that ending the recounts was not an equitable way to settle the dispute: instead, the Court needed to establish a standard by which the votes should be counted, and then let the ballots be counted by that standard.

The decision: A 7-2 majority ruled that the Florida recount was being conducted unconstitutionally, and the majority opinion noted significant problems in the uneven way the votes were being recounted. Furthermore, a narrower 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 court cited differing vote-counting standards from county to county and the lack of a single judicial officer to oversee the recount, both of which violated the equal protection clause of the United States Constitution. The court also ruled that under the Electoral College system, “The individual citizen has no federal constitutional right to vote for electors for the President of the United States.”

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)


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