Bush v. Gore, 531 U.S. 98; 121 S. Ct. 525; 148 L. Ed. 2d 388 (2000)

Facts—After the initial vote count in the Florida presidential election of 2000, electors pledged to Republican candidates George Bush and Dick Cheney led Democrats Al Gore and Joe Lieberman by a mere 1,784 votes out of more than 4.8 million cast. Because the margin was so close, state law tripped an automatic machine recount, which further reduced Bush’s lead. Gore sought manual recounts in selected Florida districts where he thought there may be “undervotes” because of “hanging chads,” caused when voting machines did not completely punch through computer cards, leaving open the possibility that counting machines did not record all votes (these were sometimes designated as “undervotes”). The Florida Supreme Court subsequently waived a statutorily imposed deadline of November 14, which the Florida Secretary of State Kathryn Harris attempted to enforce, with the state court initially extending the date to November 26, after which the secretary of state declared Bush and Cheney to be the winners. Gore contested this certification, and the Florida Supreme Court accepted this challenge with respect to Miami-Dade County, ordered that vote counting there be continued, and awarded Gore votes that had been submitted in Palm Beach and Miami Counties after November 26. Because the 2000 presidential electoral vote was so close, the decision in Florida would determine the outcome for the entire nation. This is the second time that the U.S. Supreme Court dealt with this issue; it had previously vacated a November 21 Florida Supreme Court order backing hand counts in selected counties and remanded the case to that court for further consideration.

Question—Did the recounts ordered by the Florida Supreme Court violate the equal protection clause of the Fourteenth Amendment?


ReasonsPer Curiam (7–2 on equal protection issue; 5–4 on the issue of stopping the recounts). There is no fundamental right to vote for presidential electors absent state investiture of such action in the people, but once such a right is vested, the right is regarded as fundamental and “equal weight” and “equal dignity” need to be accorded to each vote. Voting rights can be effectively denied by “debasement or dilution” as well as by outright denial. Although Florida’s desire to ascertain “the intent of the voter” is “unobjectionable as an abstract proposition,” the Florida Court did not set forth “specific standards to ensure its equal application.” Different standards were being used to count votes by hand not only among different counties but even within them. For Florida to reach the “safe harbor” prescribed by congressional law (the time before which such votes were considered presumptively valid), the selection of electors must be certified by December 12. This was the date of the U.S. Supreme Court’s decision, and further remedies were therefore impossible. Extending the deadlines still further would violate Florida law. The Court majority noted that “when contending parties invoke the process of courts . . . it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”

J. Rehnquist (joined by J. Scalia and J. Thomas) argued that while in ordinary cases, “comity and respect for federalism” would compel deference to state court decisions, this case involved the election of a U.S. president. Article II, Section 2, clause 2 provided for appointment of state electors according to state legislative direction. The legislature had vested the secretary of state with the power to certify an election. Although the U.S. Supreme Court generally defers to state court interpretations of its laws, here respect for the state legislature required federal intervention. State law distinguished between election protests and electoral contests. The Florida Supreme Court’s interpretation of a “legal vote” departed from the legislative scheme for recognizing only ballots that were clearly marked. The court-ordered recount could not be properly carried out and judicially reviewed as ordered by the Florida Supreme Court so that order must be invalidated.

J. Stevens’s (joined by J. Ginsburg and J. Breyer) dissent argued that precedents dictated acceptance of the opinions of state supreme courts in regard to interpretations of state law. The majority opinion elevated the interest in finality over the interest in seeing that all votes were counted. That decision undermined “the Nation’s confidence in the judge as the impartial guardian of the rule of law.”

J. Souter (with J. Breyer and partial votes of J. Stevens and J. Ginsburg) also dissented. The U.S. Supreme Court should not have issued a stay of the Florida Supreme Court’s decision. Although the federal rule sets a “safe harbor” date for a state’s certification of votes, it did not require a state to meet it. The Florida Supreme Court had not changed state legislative provisions for voting because those laws also provided for ascertaining voter intent. The Florida court’s interpretation of occasions for recounts, while not mandated by state law, was a permissible interpretation of that law. The case should have been remanded to that court with instructions to establish “uniform standards” for counting votes.

J. Ginsburg (with J. Stevens and partial agreement by J. Souter and J. Breyer). If she were interpreting Florida law independently, she might side with the chief justice, but the U.S. Supreme Court had no such obligation to oversee a state supreme court’s interpretation of state law. “The Chief Justice contradicts the basic principle that a State may organize itself as it sees fit.” Ginsburg did not find a violation of the equal protection clause, and she rejected the court’s concern with the December 12th deadline. In a much noted move, Ginsburg left off the traditional “respectfully” in her statement, “I dissent.”

J. Breyer (with partial agreement of J. Stevens, J. Ginsburg, and J. Souter) argued that “The Court was wrong to take this case. It was wrong to grant a stay.” Whatever the equal protection concerns, the majority was unwarranted in halting the vote count. The court had no business turning that “presumption that legislatures would want to take advantage of [Sec.] 5’s ‘safe harbor’ provision into a mandate that trumps other statutory provisions and overrides the intent that the legislature did express.” The decision in this case was political rather than legal and should be decided by the political branches and according to the guidelines Congress established after the presidential election of 1876. Judicial intervention risked “a self-inflicted wound.”

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