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
deliberating Bush 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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article "Bush v. Gore".
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