Bush v. Gore

Bush argued that recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment, because Florida did not have a statewide vote recount standard. Each county was on its own to determine whether a given ballot was an acceptable one. Two voters could have marked their ballots in an identical manner, but the ballot in one county would be counted while the ballot in a different county would be rejected, due to the conflicting manual recount standards.[31]

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.[32] 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 unconstitutional[33] 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.

David Boies represented Gore

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 were to find an equal protection violation. However, Gore did argue briefly that the appropriate remedy would not be to cancel all recounts, but rather would be to order a proper recount.[34]

Bush also argued that the Florida Supreme Court's ruling violated Article II, § 1, cl. 2 of the U.S. Constitution. Essentially, Bush argued 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 directed by the Florida legislature, it violated Article II. Bush argued that 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.[35]

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.[36]

The Supreme Court, in a per curiam opinion, ruled that the Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause of the Fourteenth Amendment. This ruling was by a 7–2 vote, though per curiam opinions are usually issued only for unanimous votes. Kennedy has since been identified as the primary author of the opinion. In addition to writing the opinion, Kennedy also decided to include Souter, Breyer and Stevens in the majority without consulting them, initially intending the per curiam opinion to have the vote count listed as 8-1 for the Equal Protections Clause issue (though not the remedy), rather than 7-2. Stevens demanded his name be removed from the majority, which Kennedy agreed to only after Stevens pulled his name from Breyer's dissent. Breyer also objected in private, but he was left as part of the majority. Later interviews by Vanity Fair indicated that Breyer and Souter were trying to appeal to Kennedy to join them on the remedy, rather than actually agreeing that an equal protection violation had occurred.[43] Jack Balkin, writing in Yale Law Journal, considered this to be a cheap trick to construct the illusion of a larger majority, likening it to "saying that two doctors agree that a patient is sick, but one wants to use leeches, and the other wants to prescribe antibiotics".[21]

The Court held that the Equal Protection Clause guarantees to individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment". Even if the recount was fair in theory, it was unfair in practice. The record, as weighed by the Florida Supreme Court, suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.[44]

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'"[45]) 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." However, the Court did not state what those complexities were, 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.[46]

Critics would later point out that the court had denied certiorari on equal protection grounds when Bush first sought Supreme Court review.[43] Law clerks who worked for Kennedy and O'Connor at the time would later state their belief that the justices settled on equal protection as grounds for their decision, rather than Article II, because they thought it would seem more fair.

The Court ruled 5–4 that no constitutionally valid recount could be completed by a December 12 "safe harbor" deadline. The Court asserted that "the Supreme Court of Florida has said that the legislature intended the State's electors to 'participat[e] fully in the federal electoral process,' as provided in 3 U.S.C. § 5." The Court therefore effectively ended the proposed recount, because "the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. §5."

Four justices (Stevens, Ginsburg, Souter and Breyer) had dissented from the Court's earlier (December 9) decision, by the same five-justice majority, to grant Bush's emergency request to stop the recount and grant certiorari. In their dissents from the Court's December 12 per curium opinion, Breyer and Souter acknowledged that the counting up until December 9 had not conformed with equal protection requirements. However, Souter and Breyer favored remanding the case to the Florida Supreme Court for the purpose of crafting specific guidelines for how to count disputed ballots, in contrast to the majority's decision to halt the recount altogether.[47] The actual counting had ended with the December 9 ruling, issued three days before any deadline.[30]

The dissenting opinions strongly criticized the five-justice majority for involving the Court in state-level affairs. Justice Stevens' dissent (joined by Justices Breyer and Ginsburg) concluded as follows:[48]

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

The per curiam opinion in Bush v. Gore 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.[49]

However, Gore dropped the case, 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."[49] In addition, Gore campaign chairman Bill Daley argued that fighting on was futile because even if the Florida Supreme Court defied the U.S. Supreme Court and ordered a new recount, "[t]he GOP would take them straight back to Washington, where the [U.S.] Supreme Court would repeat: 'You ain't going to count, okay? So quit bothering us.'"[50]

On remand, the Florida Supreme Court issued an opinion on December 22, 2000, that did not dispute whether December 12 was the deadline for recounts under state law, although 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 who also argued that, in any case, the Florida Supreme Court would (in his opinion) be unable to craft a remedy which would satisfy all of the U.S. Supreme Court's equal protection, due process, and other concerns.[51]

Chief Justice Rehnquist's concurring opinion, joined by Justices 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 had been made by the dissenting justices of the Florida Supreme Court.

In his concurring opinion, Rehnquist also mentioned that he and Justices Scalia and Thomas all join the Supreme Court's per curiam opinion in the Bush v. Gore case and agree with the legal analysis that was presented there.

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, asserting that "the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S. C. §5." This assertion in Bush v. Gore has proven very controversial.

Michael W. McConnell has written that the U.S Supreme Court's decision on December 12 "may have reached the right result for the wrong reason."[52] McConnell points to the Florida Supreme Court's December 11 opinion, which characterized December 12 as an "outside deadline." Here is the pertinent excerpt from the December 11 opinion of the Florida Supreme Court:[23]

What is a reasonable time required for completion will, in part, depend on whether the election is for a statewide office, for a federal office or for presidential electors. In the case of the presidential election, the determination of reasonableness must be circumscribed by the provisions of 3 U.S.C. § 5, which sets December 12, 2000, as the date for final determination of any state's dispute concerning its electors for that determination to be given conclusive effect in Congress ... As always, it is necessary to read all provisions of the elections code in pari materia. In this case, that comprehensive reading required that there be time for an elections contest pursuant to section 102.168, which all parties had agreed was a necessary component of the statutory scheme and to accommodate the outside deadline set forth in 3 U.S.C. § 5 of December 12, 2000.

However, according to Nelson Lund, a former official of the first Bush administration,[53] one might argue that the Florida Supreme Court was discussing the "protest provisions of the Florida Election Code, whereas the issues in Bush v. Gore arose under the contest provisions."[54] Likewise, Peter Berkowitz has written that, "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."[55] Abner Greene has pointed to evidence that "the Florida Supreme Court thought all manual recounts – whether protest or contest – must be completed no later than December 12."[56] Nevertheless, Greene concluded that, "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,"[56] in addition to the remand of December 4.[1] The Court in Bush v. Gore did remand the case instead of dismissing it, but the remand did not include another request for clarification. Louise Weinberg argues that, even giving the Court the benefit of the doubt that it acted appropriately in intervening in Florida state law, its actions should be deemed unconstitutional because its intervention was not coupled with any kind of remedy aimed at determining the actual outcome of the election.[57]

Some critics of the decision argue that the majority seemed to seek refuge from their own logic[58][59] 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."[60] The Court's defenders argued that this was a reasonable precaution against the possibility that the decision might be read over-broadly,[61] arguing that in the short time available it would not be appropriate to attempt to craft language spelling out in greater detail how to apply the holding to other cases. Critics, however, 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.[62] Regardless of whether the majority intended the decision to be precedential, it has been cited by several federal courts in election cases.[63][64][65][66][67]

There have been claims that the majority opinion emerged from conservative Republican Justices ruling against Gore for partisan reasons.[68] Harvard University law professor Alan Dershowitz wrote:

[T]he decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.[68]

Chapman University School of Law professor Ronald Rotunda has responded as follows:

Not only is that claim inconsistent with the position of Justices Breyer and Souter, it is inconsistent with the position of three of the Florida justices who dissented. No Justice on the Florida Supreme Court was a Republican appointee, but three of them concluded that the recount that Vice President Gore wanted was unconstitutional. Three of the seven Florida Supreme Court justices also found an Equal Protection violation when the manual ballot-counters used different procedures to examine identical ballots and count them differently.[69]

There has also been analysis of whether several Justices had a conflict of interest that should have forced them to recuse themselves from the decision. On several occasions, William 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 Rehnquist. At an election night party, Sandra Day O'Connor became upset when the media initially announced that Gore had won Florida, her husband explaining that they would have to wait another four years before retiring to Arizona.[70] However, both Justices remained on the Court beyond President Bush's first term, until Rehnquist's death in 2005 and O'Connor's retirement in 2006, although George W. Bush was still president during O'Connor's retirement. According to Steven Foster of the Manchester Grammar School:

On the eve of the election Sandra Day O'Connor had made a public statement that a Gore victory would be a personal disaster for her. Clarence Thomas's wife was so intimately involved in the Bush campaign that she was helping to draw up a list of Bush appointees more or less at the same time as her husband was adjudicating on whether the same man would become the next President. Finally, Antonin Scalia's son was working for the firm appointed by Bush to argue his case before the Supreme Court, the head of which was subsequently appointed as Solicitor-General.[71]

Pessimism about the ability of the justices to remain impartial was not limited to those outside the court. Law clerks for the court at the time would later recall that Stevens, Breyer, Ginsburg and Souter had begun drafting their dissent before oral arguments began.[43] They also noted Justice Scalia had begun campaigning for the stay of the recount before the court had received Gore's response to Bush's request and later recalled that he was so incensed at Stevens' dissent, that he requested the release of the opinions be delayed so that he could amend his opinion to include a response to Stevens. Kennedy is also reported to have sent out a memo which accused the dissenters of "trashing the court". Later, court personnel, as well as Ron Klain, speculated that there was an unspoken understanding that the judges on the winning side would not retire until after the next election, as a way of preserving some sense of fairness. Indeed, no Supreme Court Justices retired during President Bush's first term.

It has been argued that none of the justices ended up voting in a way that was consistent with their prior legal jurisprudence[21][6]--though this conclusion has been challenged by George Mason University law professor Nelson Lund.[72] The five conservative justices decided to involve the federal judiciary in a matter that could have been left to the states, while also expanding the previous US Supreme Court interpretations of the Equal Protection Clause. Meanwhile, the liberal justices all supported leaving the matter in the hands of a state and also sometimes advocated in favor of a narrower reading of existing Equal Protection Clause SCOTUS precedents. This increased the perceptions that the judges used their desired results to drive their reasoning, instead of using legal reasoning to arrive at a result. David Cole of Georgetown Law argued that, as a way of trying to rehabilitate the court's image after Bush v Gore, the court became more likely to reach a liberal decision in the four years after Bush v Gore than they had been before the case, and that the conservative justices were more likely to join the liberals rather than the other way around.[6]

In 2001, a consortium of news organizations, assisted by professional statisticians (NORC), examined numerous hypothetical ways of recounting all the Florida ballots. The study was conducted over a period of 10 months. The consortium examined 175,010 ballots that vote-counting machines had rejected. In each alternative way of recounting the rejected ballots, the number of additional votes for Gore was smaller than the 537-vote lead that state election officials ultimately awarded Bush. Under the strategy that Al Gore pursued at the beginning of the Florida recount — filing suit to force hand recounts in four predominantly Democratic counties — Bush would have kept his lead, according to the ballot review conducted by the consortium.

Likewise, if Florida's 67 counties had carried out the hand recount of disputed ballots ordered by the Florida Supreme Court on December 8, applying the standards that election officials said they would have used, Bush would have emerged the victor by 493 votes. On the other hand, the study also found that if the official vote-counting standards had not rejected ballots containing overvotes (where a voter selects more than one candidate in a race where each voter may only choose one candidate) a statewide tally would have resulted in Gore emerging as the victor by 60 to 171 votes. These tallies conducted by the NORC consortium are caveated with the statement: "But no study of this type can accurately recreate Election Day 2000 or predict what might have emerged from individual battles over more than 6 million votes in Florida's 67 counties."[73][74]

Florida also received an additional 2,411 overseas ballots after the 7 PM deadline on election day. Florida officials rejected these overseas ballots, mostly from members of the United States Armed Forces. By rejecting those ballots, Florida provided Gore a 202-vote lead in the state. The United States District Court for the Northern District of Florida on December 8, 2000, overturned these rejections and ordered that all federal write-in ballots previously rejected be counted. The effect of these additional overseas ballots provided Bush with a 537-vote lead in the state. The ruling also noted:[75]

Service personnel give up many things when they enter the military, including the free exercise of some civil rights enjoyed by civilians at home. The sacrifice should not go beyond the surrender of rights that are incompatible with military duties. These men and women of our Armed Forces should be able to expect as much and no less, because of their induction into military service, than those of us who remain at home pursuing normal activities. It certainly would appear unnecessary that our soldiers and sailors and merchant marines must make a special effort to retain the right to vote.

The subsequent analysis revealed that black-majority precincts had three times as many rejected ballots as white precincts. "For minorities, the ballot survey found, a recount would not have redressed the inequities because most ballots were beyond retrieving. But a recount could have restored the votes of thousands of older voters whose dimpled and double-voted ballots were indecipherable to machines but would have been clear in a ballot-by-ballot review."[76] The ballot review later conducted by a consortium of news organizations did not have access to these decisive ballots, which in many cases had disappeared and could not be produced.[77]

A number of subsequent articles have characterized the decision as damaging the reputation of the court, increasing the view of judges as partisan, and decreasing Americans' trust in the integrity of elections.[4][5][6][7][8][9]

Part of the reason recounts could not be completed was the various stoppages ordered by the various branches and levels of the judiciary, most notably the Supreme Court itself.[78] Opponents argued that it was improper for the Court (by the same five Justices who joined the per curiam opinion) to grant a stay that preliminarily stopped the recounts based on Bush's likelihood of success on the merits and the possible of irreparable injury to Bush.[79] Although stay orders normally do not include justification, Scalia concurred to express some brief reasoning to justify it, saying that one potential irreparable harm was that an invalid recount might undermine the legitimacy of Bush's election (presumably if, for example, it were to find that Gore should have won).[78] Supporters of the stay, such as Charles Fried, contend that the validity of the stay was vindicated by the ultimate decision on the merits and that the only thing that the stay prevented was a recount "being done in an unconstitutional way."[80]

Some of the decision's critics argued that the Court's decision was a perversion of the Equal Protection Clause,[79] and contrary to the political question doctrine.[81] Scott Lemieux of University of Washington pointed out that if recounting votes without a uniform statewide standard were truly a violation of the Equal Protection Clause, this should have meant that the initial count, which also lacked a uniform standard, was itself unconstitutional.[9] On the other hand, Geoffrey R. Stone has expressed sympathy with the Court's equal protection reasoning, even though Stone was dismayed by what he saw as the sudden and suspect conversion of Justices Rehnquist, Scalia and Thomas to that equal protection principle. According to Stone:

No one familiar with the jurisprudence of Justices Rehnquist, Scalia, and Thomas could possibly have imagined that they would vote to invalidate the Florida recount process on the basis of their own well-developed and oft-invoked approach to the Equal Protection Clause.[82]

The dissent of Justice Stevens was criticized by George Mason University School of Law Professor and former Associate White House Counsel to the George H. W. Bush administration[53] Nelson Lund.[83] Lund said: "[t]he best known passage, which comes from Justice Stevens' dissent, consists of a rhetorical flourish rather than analysis." In that passage, Stevens had criticized the Court for questioning the impartiality of Florida's judiciary.[84]

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.[59] In 2013, retired Justice Sandra Day O'Connor, who had voted with the majority, speculated that perhaps the Court should have declined to hear the case, which "gave the court a less-than-perfect reputation".[85]

A subsequent article in Vanity Fair quoted a number of the court's clerks at the time who were critical of the decision. They noted that, despite the per curiam decision's declaration that the case was taken "reluctantly", Justice Kennedy had been rather enthusiastic about taking the case all along.[43] They felt at the time, as had many legal scholars, that the case was unlikely to go to the Supreme Court at all. In fact some of the justices were so certain that the case would never come before them that they had already left for vacations.