Bush v. Gore, 531 U.S. 98 (2000), was a landmark decision of the United States Supreme Court on December 12, 2000, that settled a recount dispute in Florida's 2000 presidential election between George W. Bush and Al Gore. On December 8, 2000, the Florida Supreme Court had ordered a statewide recount of all undervotes, over 61,000 ballots that the vote tabulation machines had missed. The Bush campaign immediately asked the U.S. Supreme Court to stay the decision and halt the recount. The U.S. Supreme Court granted certiorari and, in a 5–4 per curiam decision on December 12, 2000, ruled, strictly on equal protection grounds, that the recount be stopped. Specifically, it held that Florida's counties' varying standards for discerning voter intent violated the Fourteenth Amendment's Equal Protection Clause of the U.S. Constitution. The case had also been argued on Article II jurisdictional grounds, which found favor only with justices Antonin Scalia, Clarence Thomas, and William Rehnquist. The Court, holding that not meeting the "safe harbor" deadline would violate the Florida Election Code, rejected an extension of the deadline proposed by justices Stephen Breyer and David Souter to allow the Florida court to complete the recount using a uniform statewide standard.
In the 21st century, state legislatures have enacted laws to provide for the selection of electors by popular vote within each state. While these laws vary, most states, including Florida, award all electoral votes to the candidate for either office who receives a plurality of the state's popular vote. Any candidate who receives an absolute majority of all electoral votes nationally (270 since 1963) wins the presidential or vice-presidential election.
On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote in Florida, a margin of victory of 1,784 votes. automatic machine recount occurred. On November 10, with the machine recount apparently finished in all but one county, Bush's margin of victory had decreased to 327 votes.
According to legal analyst Jeffrey Toobin, later analysis showed that 18 counties—accounting for a quarter of all votes cast in Florida—did not carry out the legally mandated machine recount, but "No one from the Gore campaign ever challenged this view" that the machine recount had been completed. Florida's election laws 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—that generally vote Democratic and would be expected to find more votes for Gore. Gore did not request any recounts in counties that generally vote Republican. The four counties granted the request and began manual recounts. Florida law also required all counties to certify their election returns to the Florida secretary of state within seven days of the election, 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 seven-day deadline was mandatory but that the counties could amend their returns at a later date. The court also ruled that the secretary of state, after "considering all attendant facts and circumstances", had discretion to include any late amended returns in the statewide certification. Before the 5 p.m. deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 p.m. on November 14, Florida secretary of state Katherine Harris announced that she had received the certified returns from all 67 counties, while Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.
Harris issued a set of criteria 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, including the three that missed the deadline, submitted statements, and after reviewing the submissions, Harris determined that none justified an extension of the 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 November 18. On that date, the Florida Supreme Court, by a 4–3 vote, ordered a statewide manual recount of undervotes. Bush then filed an emergency request to the U.S. Supreme Court asking to stay the recount. Justice Antonin Scalia, contending that all the manual recounts being performed in Florida's counties were illegitimate, urged his colleagues to grant the stay immediately.
thumb|right|Florida Supreme Court
Stevens's dissenting opinion was joined by justices Souter, Ginsburg, and Breyer. According to Stevens,
Since the electors were set to meet December 18, the discretional "safe harbor" deadline was December 12, just one day after the Court heard oral arguments in this case. According to :
Issues considered by the Court
thumb|upright|[[Theodore Olson represented Bush.]]
The Court had to resolve two different questions to fully resolve the case:
- Were the recounts, as they were being conducted, constitutional?
- If the recounts were unconstitutional, what was the appropriate remedy?
Three days earlier, the five-Justice majority had ordered the recount stopped, and the Court had to decide whether to restart it.
Equal Protection Clause
Bush argued that recounts in Florida violated the Equal Protection Clause because Florida did not have a statewide vote recount standard. Each county determined on its own whether a given ballot was valid. Two voters in different counties could have marked their ballots in an identical manner, but the ballot in one county would be counted while the ballot in the other county would be rejected, because of the conflicting manual recount standards.
thumb|upright|[[David Boies represented Gore.]]
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, he argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render every state's election unconstitutional and that each voting mechanism has a different rate of error in counting votes. Voters in a "punch-card" county were more likely to have their votes undercounted than voters in an "optical scanner" county. If Bush prevailed, Gore argued, every state would have to have one statewide method of recording votes to be constitutional. This was the most closely decided issue in the case. The arguments presented by counsel did not extensively address what the Court should do if the Court found an equal protection violation, but Gore did argue briefly that the appropriate remedy would not be to cancel all recounts, but rather to order a proper recount.
Article II
Bush argued that the Florida Supreme Court's ruling violated Article II, § 1, cl. 2 of the U.S. Constitution. Essentially, he contended that the Florida Supreme Court's interpretation of Florida law was so erroneous that its ruling had the effect of making new law. Since this "new law" had not been enacted by the Florida legislature, it violated Article II. According to Bush, Article II gives the federal judiciary the power to interpret state election law in presidential elections to ensure that the intent of the state legislature is followed. Gore argued that Article 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 to reach its decision.
Decision
In brief, the breakdown of the decision was:
- Five justices agreed that there was an Equal Protection Clause violation in using differing standards of determining a valid vote in different counties, causing an "unequal evaluation of ballots in various respects". The per curiam opinion (representing the views of Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas) specifically cited that:
- Palm Beach County changed standards for counting dimpled chads several times during the counting process;
- Broward County used less restrictive standards than Palm Beach County;
- Miami-Dade County's recount of rejected ballots did not include all precincts;
- The Florida Supreme Court did not specify who would recount the ballots.
- The per curiam opinion also identified an inconsistency with the fact that the Florida statewide recount of rejected ballots was limited to undervotes. The opinion implied that a constitutionally valid recount would include Florida's overvotes, not just its undervotes. The opinion expressed concern that the limited scope of Florida's recount would mean that, unlike some undervotes found to be reclaimable, valid votes among the overvotes would not be reclaimed. Furthermore, if a machine had incorrectly read an overvote as a valid vote for one of two marked candidates instead of rejecting it, Florida would wrongly count what should be an invalid vote.
- Breyer and Souter disagreed with the majority, pointing out that Bush presented no evidence in any court of uncounted legal overvotes and did not see any problem in Florida's decision to limit its recount to undervotes. The dissents of Breyer and Souter were full dissents. Unlike the five-justice majority, each identified an equal protection concern that did not rise to the level of a constitutional violation and proposed a remedy different from the majority's remedy. A dissenting opinion does not create precedent, nor does it become a part of case law. Under the American legal system, dissenting court opinions are not considered valid holdings and are not included in the court's ruling. Nothing in Breyer's or Souter's dissents can be construed as part of any decision by the Court.
- In dissenting, Ginsburg wrote that, for better or worse, disparities were a part of all elections and that if an equal-protection argument applied in any way, it surely applied more to black voters.
- Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts in keeping with 3 U.S.C. §5 (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas in support; Stevens, Souter, Ginsburg, and Breyer opposed). Souter, joined by Breyer, Ginsburg and Stevens, wrote, "But no State is required to conform to §5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of §5 is simply loss of what has been called its 'safe harbor.' And even that determination is to be made, if made anywhere, in the Congress."
- Three justices (Rehnquist, Scalia, and Thomas) argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. Four (Stevens, Souter, Ginsburg, and Breyer) specifically disputed this in their dissenting opinions, and the remaining two (O'Connor and Kennedy) declined to join Rehnquist's concurrence on the matter. In addition to writing the opinion, he included Souter, Breyer and Stevens as agreeing that there were equal protection "problems" without consulting them. Stevens demanded his name be removed from the draft opinion, which Kennedy agreed to only after Stevens pulled his name from Breyer's dissent. Breyer also objected in private. The New York Times reported that Kennedy's opinion "later caused some confusion by its reference to 'seven justices of the court' who 'agree that there are constitutional problems with the recount.' That was true, but it was also beside the point." Later interviews by Vanity Fair indicated that Breyer and Souter were trying to appeal to Kennedy to join them on the remedy, rather than agreeing that an equal protection violation had occurred.
According to the Court, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter) could not guarantee that each county would count the votes in a constitutionally permissible fashion. The Court stated that the per curiam opinion's applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." But the Court did not identify those complexities, nor did it explain (or apparently consider) why the absence of a constitutionally acceptable standard for counting votes, which was the basis for the Court's ruling, would not have invalidated the entire presidential election in Florida. Critics later observed that the court had denied certiorari on equal protection grounds when Bush first sought Supreme Court review. The actual counting had ended with the December 9 ruling, issued three days before any deadline.
The per curiam opinion did not technically dismiss the case and instead "remanded for further proceedings not inconsistent with this opinion." Gore's attorneys therefore understood that they could fight on and could petition the Florida Supreme Court to repudiate the notion that December 12 was final under Florida law. Despite this, Gore dropped the case—and conceded the election to Bush shortly afterward—reportedly because he was not optimistic about how the Florida justices would react to further arguments and, as one of his advisers put it, "the best Gore could hope for was a slate of disputed electors".
On remand, the Florida Supreme Court issued an opinion on December 22 that did not dispute whether December 12 was the deadline for recounts under state law. This was disputed in a concurring opinion by Florida Supreme Court Justice Leander Shaw, who nevertheless expressed deference to the U.S. Supreme Court's view on this issue and also argued that, in any case, the Florida Supreme Court would (in his opinion) be unable to craft a remedy that would satisfy all the U.S. Supreme Court's equal protection, due process, and other concerns.
Article II
Rehnquist's concurring opinion, joined by Scalia and Thomas, began by emphasizing that this was an unusual case in which the Constitution requires federal courts to assess whether a state supreme court has properly interpreted the will of the state legislature. Usually, federal courts do not make that type of assessment, and indeed the per curiam opinion in this case did not do so. After addressing this aspect of the case, Rehnquist examined and agreed with arguments that the dissenting justices of the Florida Supreme Court had made. Rehnquist also mentioned that he, Scalia, and Thomas joined the Supreme Court's per curiam opinion and agreed with the legal analysis presented there. The ruling also says that "the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. ... The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors."
Scholarly analyses
Bush v. Gore prompted many strong reactions from scholars, pundits and others, with a majority of publications in law reviews being critical. A Georgetown Law Journal analysis found that 78 scholarly articles were published about the case between 2001 and 2004, with 35 criticizing the decision and 11 defending it.
Critical remedial issue
The most closely decided aspect of the case was the key question of what remedy the Court should order, in view of an Equal Protection Clause violation. Gore had argued for a new recount that would pass constitutional muster, but the Court instead chose to end the election. Citing two Florida Supreme Court opinions, Gore v. Harris (December 8)
Finding that reasoning unpersuasive, Michael W. McConnell writes that the two Florida court opinions the Supreme Court cited supply no authoritative pronouncement of an absolute deadline. As better support for December 12 as the deadline under state law, McConnell points to two footnotes in the Florida Supreme Court's December 11 response on remand in Palm Beach County Canvassing Board v. Harris (Harris I), which he says must not have come to the justices' attention. Footnotes 17 and 22 called the safe harbor date of December 12 an "outside deadline". Therefore, he writes, although these passages may not justify the U.S. Supreme Court's decision, since the Court did not rely on them, "the Court may have reached the right result for the wrong reason". These footnotes state:
According to Nelson Lund, former law clerk to O'Connor and associate counsel to George H. W. Bush, a dissenter might argue that the Florida Supreme Court on remand in Harris I was discussing the "protest provisions of the Florida Election Code, whereas the issues in Bush v. Gore arose under the contest provisions". In retort to himself, Lund writes that the Florida court's decision in the contest case did not mention any alternative possible deadlines. Peter Berkowitz writes, "Perhaps it would have been more generous for the Court to have asked the Florida court on remand whether 'outside deadline' referred to contest-period as well as protest-period recounts." Abner Greene points to evidence that "the Florida Supreme Court thought all manual recounts—whether protest or contest—must be completed no later than December 12." Nevertheless, Greene concludes "lack of clarity about the Florida Supreme Court's views on the safe-harbor provision should have resulted in a remand to that court for clarification",
Arguably, the Florida Supreme Court, after having stated on December 11 that December 12 was an "outside deadline",
Michael Abramowicz and Maxwell Stearns argue that if the Florida Supreme Court had clarified or reinterpreted Florida state law on remand, then the U.S. Supreme Court might have struck down the Florida Supreme Court's action as a violation of Article II of the Constitution. Abramowicz and Stearns point out that while Kennedy and O'Connor did not join Rehnquist's Article II concurrence, they did not explicitly oppose it either, and thus kept the door open to nullifying a future ruling of the Florida Supreme Court on Article II grounds.
Limitation "to present circumstances"
Some critics of the decision argue that the majority seemed to seek refuge from their own logic in 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 argued that this was a reasonable precaution against the possibility that the decision might be read too broadly, arguing that in the short time available it would be inappropriate to attempt to craft language spelling out in greater detail how to apply the holding to other cases. But critics 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. Regardless of whether the majority intended the decision to be precedential, several federal courts have cited it in election cases, as did a lawyer for a Republican congressional candidate during legal arguments coincident with the 2020 United States presidential election.
Accusation of partisanship or conflict of interest
According to legal analyst Jeffrey Toobin, "Bush v. Gore broke David Souter's heart. The day the music died, he called it. It was so political, so transparently political, that it scarred Souter's belief in the Supreme Court as an institution" (italics in original). Various authors argued that conservative Republican-appointed justices ruled against Gore in this case for partisan reasons.
Chapman University School of Law professor Ronald Rotunda responded that Democratic-appointed justices of the Florida Supreme Court also ruled against Gore:
There has been further analysis of whether several justices had a conflict of interest that should have forced them to recuse themselves from the decision. On several occasions, Rehnquist had expressed interest in retiring under a Republican administration; one study found that press reports "are equivocal on whether facts existed that would have created a conflict of interest" for him. At an election night party, O'Connor became upset when it was reported that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona. Both justices remained on the Court until Bush's second term, with Rehnquist dying in 2005 and O'Connor retiring in 2006. According to Steven Foster of the Manchester Grammar School:
The day after Thanksgiving, when the conservative justices agreed to hear Bush's appeal in the case of Bush v. Palm Beach County Canvassing Board (excluding Bush's equal protection claim), the opposing justices were convinced that the majority intended to reverse the Florida Supreme Court and shut down the recount. They began drafting a dissent before this case was argued before them, a dissent that was temporarily shelved upon the Court's unanimous remand to the Florida court. The project's goal was to determine the reliability and accuracy of the systems used in the voting process, including how different systems correlated with voter mistakes. The study was conducted over a period of 10 months. Based on the review, the media group concluded that if the disputes over the validity of all the ballots in question had been consistently resolved and any uniform standard applied, the electoral result would have been reversed and Gore would have won by 60 to 171 votes. On the other hand, under scenarios involving review of limited sets of ballots uncounted by machines, Bush would have kept his lead. In one such scenario—Gore's request for recounts in four predominantly Democratic counties—Bush would have won by 225 votes. In another scenario (if the remaining 64 Florida counties had carried out the hand recount of disputed ballots the Florida Supreme Court ordered on December 8, applying the various standards that county election officials said they would have used), Bush would have emerged the victor by 493 votes.
The scenarios involving limited sets of ballots included the completed uncertified recount by Palm Beach County, which nevertheless had excluded a set-aside cache of dimpled ballots with clear indications of intent, an uncounted net gain of 682 votes for Gore.
Stevens's criticism of the Court in his dissent for questioning the impartiality of Florida's judiciary was itself criticized by Lund, a former law clerk for O'Connor. Professor Charles Zelden faults the per curiam opinion in the case for, among other things, not declaring that the nation's electoral system required significant reform, and for not condemning administration of elections by part-time boards of elections dominated by partisan and unprofessional officials. Zelden concludes that the Court's failure to spotlight this critical flaw in American electoral democracy made a replay of Bush v. Gore more likely, not less likely, either in Florida or elsewhere.
A Vanity Fair article quotes several of the court's clerks at the time who were critical of the decision. They note that, despite the per curiam opinion's declaration that the case was taken "reluctantly", Kennedy had been rather enthusiastic about taking the case all along.