Bush v. Gore 
Author: Lindsey

Facts

The winner of the 2000 presidential elections hinged on the electoral votes in Florida.  Gore trailed by less than 1,000 votes.  Gore sought recounts in some democratic counties in Florida.   

Procedural History

The Florida SC ordered a manual recount of all “undervotes” in all counties.  The Florida SC said the election officials should attempt to discern “the will of the voter”.  The deadline was set for December 12.  Bush appealed to the SC to stay the Florida SC ruling on the grounds that attempting to discern “the will of the voter” violates the EPC.   

Issue

Does the “intent of the voter” standard violate the EPC? 

Holding

Yes, the “intent of the voter” standard violates the EPC because it doesn’t ensure equal protection to all voters.  

Reasoning

The right to vote is a fundamental right.  The right to have all votes weighed equally is also a fundamental right.   

The “intent of the voter” standard doesn’t insure non-arbitrary treatment of voters necessary to secure the fundamental right.  The standard used to accept or reject contested ballots varies from county to county and even within a single county.  The state court should have set standards to ensure uniformity in its application. 

Further, there is disparate treatment because “overvotes” (voting for more than one candidate) don’t get scrutiny to discern the “intent of the voter” like “undervotes” do.   

Judgment

Reverse the judgment of the Florida SC in ordering the recount to proceed.  Since the deadline is today and there’s no proper mechanism in place for ensuring a fair recount, Gore loses.   

Stevens dissent: 

• “Intent of the voter” standard is similar to the “beyond a reasonable doubt’ standard in its ambiguity. 
• Yes, it is a problem that different counties may apply the standard in different ways, but this problem is eliminated because an impartial magistrate ultimately adjudicates all objections. 
  • Further, if different standards over different counties were constitutionally objectionable, then why is it okay that the state leaves it up to each county to pick what voting machine it uses, despite the large differences in accuracy?