Bush v. Gore

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 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, because of the conflicting manual recount standards.[27]

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.[28] Furthermore, he argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render every state election unconstitutional[29] and that each voting mechanism has a different rate of error in counting votes. Voters in a "punch-card" county have a greater chance of having their votes undercounted than voters in an "optical scanner" county. If Bush prevails, 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. But Gore did argue briefly that the appropriate remedy would not be to cancel all recounts, but rather to order a proper recount.[30]

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 enacted 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.[31]

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.[32]

In its per curiam opinion, the Supreme Court ruled that the Florida Supreme Court decision calling for a statewide recount violated the Equal Protection Clause of the Fourteenth Amendment. Kennedy has since been identified as the opinion's primary author. 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."[42] 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.[1] Jack Balkin, writing in Yale Law Journal, considered this 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".[18]

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.[43]

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'"[44]) 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.[45]

Critics later pointed out that the court had denied certiorari on equal protection grounds when Bush first sought Supreme Court review.[1] Law clerks who worked for Kennedy and O'Connor at the time later said they believed the justices settled on equal protection as grounds for their decision, rather than Article II, because they thought it would seem fairer.[1]

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." Souter said bluntly, "The 3 U.S.C. §5 issue is not serious."[39] Breyer's dissent stated, "By halting the manual recount, and thus ensuring that uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect."[38]

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 curiam opinion, Breyer and Souter acknowledged that the counting up until December 9 had not conformed with equal protection requirements. But 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.[46] The actual counting had ended with the December 9 ruling, issued three days before any deadline.[26]

The dissenting opinions strongly criticized the majority for involving the Court in state-level affairs. Stevens's dissent (joined by Breyer and Ginsburg) concluded as follows:[47]

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 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.[48]

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".[48] 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, "the 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.'"[49]

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.[50]

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.[51]

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 states: "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."

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, seemingly in error)[53] and Palm Beach County Canvassing Board v. Harris (November 21, footnote 55),[7] the U.S. Supreme Court asserted that "the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. § 5" and that "any recount seeking to meet the December 12 date will be unconstitutional". This assertion has proven very controversial.

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.[53] 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:[20]

[17] 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 ... [22] 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.

According to Nelson Lund, former law clerk to O'Connor and associate counsel to George H. W. Bush,[54] 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.[55] 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."[56] 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."[57] 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",[57] in addition to the remand of December 4.[21] 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 U.S. Supreme 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 election's actual outcome.[58]

Arguably, the Florida Supreme Court, after having stated on December 11 that December 12 was an "outside deadline",[20] could have clarified its views on the safe-harbor provision or reinterpreted Florida law to state that December 12 was not a final deadline under Florida law, which the U.S. Supreme Court did not forbid the Florida Supreme Court from doing.[59] Lund states that, as a practical matter, the Florida Supreme Court was unlikely to have actually been capable of conducting and completing a new constitutionally valid recount by the December 18 deadline for the meeting of the Electoral College.[60]

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.[61] 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.[61] Abramowicz and Stearns also argue that if the Bush v. Gore decision genuinely allowed the Florida Supreme Court to clarify or reinterpret Florida state law and thus to order a new manual recount, then Souter and Breyer likely would have joined the opinion—which they did not.[61] Laurence Tribe has a similar view on this issue, arguing that "[e]ven assuming the leeway [in regard to the remedy] the Court theoretically left open was real, the window it had failed to slam shut was hardly the sort of opening through which anyone would dare to crawl."[62]

Some critics of the decision argue that the majority seemed to seek refuge from their own logic[63][64] 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."[65] The Court's defenders argued that this was a reasonable precaution against the possibility that the decision might be read too broadly,[66] 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.[67] Regardless of whether the majority intended the decision to be precedential, several federal courts have cited it in election cases,[68][69][70][71][72] as did a lawyer for a Republican congressional candidate during legal arguments coincident with the 2020 United States presidential election.[73]

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).[74]

Various authors have claimed that conservative Republican-appointed justices ruled against Gore in this case for partisan reasons.[75] Harvard University law professor Alan Dershowitz writes:

[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.[75]

Chapman University School of Law professor Ronald Rotunda responded that Democratic-appointed justices of the Florida Supreme Court also ruled against Gore:

[T]hat claim ... 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.[76]

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, 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.[77] 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:

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.[78]

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.[1]

The liberal law clerks noted that Scalia later had begun campaigning for the stay of the Florida court's December 8 recount order before the Court had received Gore's response to Bush's request, and was so incensed at Stevens's dissent in the matter of the stay and grant of certiorari that he requested the release of 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 accusing 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. No justices retired during President Bush's first term.[1]

It has been argued that none of the justices voted in a way that was consistent with their prior jurisprudence,[18][52] though George Mason University law professor Nelson Lund has challenged this conclusion, arguing that, unlike in suspect classification cases, the U.S. Supreme Court has never actually required a showing of intentional discrimination in fundamental rights cases, such as Bush v. Gore.[79][60] The five conservative justices decided to involve the federal judiciary in a matter that could have been left to the states, while also expanding previous U.S. 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 precedents. This bolstered the perception that the justices used their desired result to drive their reasoning. 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 it had been before the case, and that the conservative justices were more likely to join the liberals rather than the other way around.[52]

In 2001, the National Opinion Research Center (NORC) at the University of Chicago, sponsored by a consortium of major United States news organizations, conducted the Florida Ballot Project, a comprehensive review of 175,010 ballots that vote-counting machines had rejected from the entire state, not just the counties that conducted manual recounts.[3] 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.[4] 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.[lower-alpha 1] 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.[lower-alpha 2][80]

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.[lower-alpha 3][5][81] In contrast, the scenarios involving all uncounted ballots statewide considered all votes from Palm Beach County, subjected to various standards of inclusion. The Washington Post qualified the tallies conducted by the NORC consortium 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."[82]

Further 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."[83]

Several 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, an outcome Stevens predicted in his dissent.[84][85][52][86][87][88] 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.[89] 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 possible irreparable injury to Bush.[90] 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).[89] Supporters of the stay, such as Charles Fried, contend that the stay's validity was vindicated by the ultimate decision on the merits and that the only thing the stay prevented was a recount "done in an unconstitutional way".[91]

Some critics argued that the Court's decision was a perversion of the Equal Protection Clause[90] and contrary to the political question doctrine.[92] Scott Lemieux of University of Washington points 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.[88] 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 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.[93]

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.[54][59][94] 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.[64] In 2013, O'Connor, who had voted with the majority, said that the case "gave the court a less-than-perfect reputation". She added, "Maybe the court should have said, 'We're not going to take it, goodbye.' ... And probably the Supreme Court added to the problem at the end of the day."[95]

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.[1] 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.