Bush v. Gore

Bush v. Gore, 531 U.S. 98 (2000), was a controversial U.S. Supreme Court case heard on December 11, 2000. The decision directly affected the result of the 2000 presidential election because it stopped the statewide recount that was occurring in Florida and allowed Florida to certify George W. Bush the winner for the State of Florida. With Florida's 25 electoral votes, Bush had enough electoral votes to win the Presidency.

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 merits of Bush's claims

Bush was essentially making two distinct claims:

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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 unconsitutional. 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

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 accepted Bush's argument on this issue.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

The remedy

If the current recount were unconstitutional, the Court 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Consequently, the court had to address whether to redo the recount under a new statewide standard, 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.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~