Bush v. Gore, 531 U.S. 98 (2000), is 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 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. On December 9, the U.S. Supreme Court granted certiorari and issued the stay. The case was argued before the Court on December 11. On December 12 the Court held, in a 54 per curiam decision, that no constitutional recount could be conducted in the remaining time, which was short because the Florida legislature wanted to take advantage of the federal "safe harbor" for its electors to be free from challenge.
The Court held that the recount violated the Equal Protection Clause of the U.S. Constitution's fourteenth amendment and must end. Seven justices expressed the view that the recount procedures suffered from constitutionally significant equal protection defects requiring correction. In dissent, two of the seven wrote that the matter should be remanded for a constitutionally proper recount. Specifically, the Court held that the Equal Protection Clause was violated by Florida's counties' varying standards for discerning voter intent. The case had also been argued on Article II jurisdictional grounds, which found favor with only three justices.
The majority held that no alternative method could be established within the discretionary December 12 "safe harbor" deadline set by Title 3 of the United States Code (3 U.S.C.), , which the Florida Supreme Court had said the Florida Legislature intended to meet. The Court, holding that not meeting the "safe harbor" deadline would violate the Florida Election Code, rejected an extension of the deadline Justices Stephen Breyer and David Souter proposed to allow Florida to complete the recount using a uniform statewide standard. That deadline arrived two hours after the release of the Court's decision.
The Supreme Court's decision in Bush v. Gore was among the most controversial in U.S. history, as it allowed Florida Secretary of State (and co-chair of Bush's Florida campaign) Katherine Harris's vote certification to stand, giving Bush Florida's 25 electoral votes. Those votes gave Bush, the Republican nominee, 271 electoral votes, one more than the 270 required to win the Electoral College. This meant the defeat of Democratic nominee Al Gore, who received 266 electoral votes. Media organizations later analyzed the ballots and found that, under specified criteria, the original limited recount of undervotes in several large counties would have resulted in a Bush victory, but according to the Florida Ballot Project, a statewide recount would have shown that Gore received the most votes. Florida later retired the punch-card voting machines that produced the ballots disputed in the case.
Background
In the United States, each state conducts its own popular vote election for president and vice president. The voters are actually voting for a slate of electors, each of whom pledges to vote for a particular candidate for each office in the Electoral College. Article II, § 1, cl. 2 of the U.S. Constitution provides that each state legislature decides how electors are chosen. Referring to an earlier Supreme Court case, McPherson v. Blacker, the Court noted that early in U.S. history, most state legislatures directly appointed their slates of electors.
State legislatures later 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. The margin of victory was less than 0.5% of the votes cast, so a statutorily mandatedSee Fla. Stat. § 102.141(4). (This archived version of the Florida statute is dated July 2, 2001, and is from Archive.org.) 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 lawsSee Fla. Stat. § 102.166. (This archived version of the Florida statute is dated July 2, 2001, and is from Archive.org.) 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,See Fla. Stat. § 102.112. (This archived version of the Florida statute is dated April 21, 2001, and is from Archive.org.) 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 November 17, the Florida Supreme Court enjoined Harris from certifying the election while it heard appeals from the various cases in progress. On November 21, it allowed continuation of the manual recounts and delayed certification until November 26.
Stay of the Florida recount
By December 8, 2000, there had been multiple court decisions about the presidential election in Florida.For example, the concurring opinion in Bush v. Gore cited the December 6, 2000, decision in Touchston v. McDermott, 234 F.3d 1130 (11th Cir. 2000). 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. On December 9, 2000, the five conservative justices on the Court granted the stay, with Scalia citing "irreparable harm" that could befall Bush, as the recounts would cast "a needless and unjustified cloud" over the legitimacy of Bush's election. In dissent, Justice John Paul Stevens wrote, "counting every legally cast vote cannot constitute irreparable harm." Oral arguments were scheduled for December 11, 2000. The Court also treated Bush's application for relief as a petition for a writ of certiorari, granted that petition, requested briefing from the parties by 4 p.m. on December 10, and scheduled oral argument for the morning of December 11.
Although opinions are rarely issued in connection with grants of certiorari (a minimum of four of the nine justices must vote in favor of the grant), Scalia filed an opinion concurring in the Court's decision, writing that "a brief response is necessary to [Stevens's] dissent". According to Scalia,
Stevens's dissenting opinion was joined by Justices Souter, Ginsburg, and Breyer. According to Stevens,
Several legal scholars have agreed with the dissenters' argument that Bush failed to carry the "heavy burden" of demonstrating a "likelihood of irreparable harm".
Rapid developments The oral argument in Bush v. Gore occurred on December 11. Theodore Olson, a Washington, D.C., lawyer, delivered Bush's oral argument. Joseph Klock, a Florida-based attorney, represented Katherine Harris. New York lawyer David Boies argued for Gore. During the U.S. Supreme Court's brief deliberation on Bush v. Gore, the Florida Supreme Court provided clarifications of its November 21 decision in Palm Beach County Canvassing Board v. Harris (Harris I), which the U.S. Supreme Court had requested on December 4 after arguments in the case of Bush v. Palm Beach County Canvassing Board. Because of the case's extraordinary nature and urgency, the U.S. Supreme Court issued its opinion in Bush v. Gore on December 12, a day after hearing oral argument.
Relevant law
The Equal Protection Clause of the Fourteenth Amendment is the U.S. constitutional provision on which the decision in Bush v. Gore was based. ("The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution and failing to comply with 3 U. S. C. § 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process clauses.") Article II, § 1, cl. 2 of the Constitution specifies the number of electors per state, and, most relevant to this case, the manner in which those electors are selected, stipulating:
This clause arguably gives power to only one branch of Florida's state government: the state legislature. Alt URL
Section 2 of the Electoral Count Act, now codified in 3 U.S.C. § 5, regulates the "determination of controversy as to appointment of electors" in presidential elections. Of particular relevance to this case was the so-called "safe harbor" provision, which assures Congress's deference to states in their appointments of electors if done by a specified deadline:
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
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