Case

The 2000 Election between Governor George W. Bush and Vice President Al Gore was historically close. On election night, a clear winner was not determined. While Gore was initially reported to be the winner in Florida, Bush was then determined to have gained a lead. Gore conceded the election to Bush but then found out the next morning that fewer than six-hundred votes, or roughly 0.01%, separated him and Bush in Florida. With Florida’s twenty-five electoral votes undetermined, Gore then retracted his concession, sending lawyers to Florida. Florida law mandated that there be a recount if the margin was less than 0.5%. The issue was very controversial because the Governor of Florida, Jeb, was George Bush’s brother. In addition, the Secretary of State in Florida, Katherine Harris, was involved with the Bush campaign in Florida. However, Florida’s Attorney General, Bob Butterworth, led Gore’s Florida campaign.

As time went on, the vote count continued to narrow and the situation became more complicated. Some votes were hanging chads, meaning they were incomplete. Others were pregnant chads, not completely pierced. Still others had multiple votes for one office. Palm Beach County was particularly controversial since their butterfly ballot led to some Gore voters voting for the third party candidate, Pat Buchanan. Florida’s Secretary of State, Harris, eventually tried to certify Florida’s election results that had Bush with a small lead, which led Gore to sue. Florida’s Supreme Court ruled in a 4-3 decision that the recount should continue and that Leon County should tabulate ballots by hand. This led Bush to sue. The Supreme Court of the United States took up the case, under a rushed timeline since federal law mandated that electors must be determined within six days of the electoral college meeting, December 12th. On December 9th, in a 5-4 decision, the Court decided to stop manual recounts in preparation for the oral arguments two days later. Bush claimed that the Florida Supreme Court acted outside of its authority, while Gore claimed that the decision is under state, not federal, jurisdiction. The Supreme Court had to decide if the Florida Supreme Court violated the Constitution in its ruling, and if the assigned recounts violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The outcome of the election relied on the Supreme Court’s decision. 

Decision

The Court’s decision was in two parts. First, in a 7-2 Per Curiam opinion announced the day after arguments were made, Justices Stephen Breyer and David Souter joined the conservative justices and determined that the Florida decision violated the Fourteenth Amendment’s Equal Protection Clause, which states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Court claimed that Bush’s constitutional rights were violated since the standardless manual recount did not have legal precedent, therefore leading to “disparate treatment,” even if fair in theory. 

The Court then decided that a constitutional recount could not be done in time to satisfy federal election law. This vote, however, was 5-4, with the conservative justices in the majority and all liberal justices dissenting. However, the decision was also Per Curiam, meaning the holding was limited only to Bush v. Gore (2000). 

Chief Justice William Rehnquist wrote a concurrence that was joined by Justices Antonin Scalia and Clarence Thomas. In it, he argued that the Florida Supreme Court not only violated the Equal Protection Clause but also created new election law, which is not in its purview. Justice Breyer and Souter argued that a remedy could take place in a timely manner since important constitutional rights were at stake. 

Dissent

Justice Ruth Bader Ginsburg and John Paul Stevens wrote vigorous dissents. They argued that due to federalism, the state court’s decision should be respected by the Supreme Court.  Justice Ginsburg typically ruled in favor of Equal Protection claims, but not in this case. The Justice wrote in her dissent that a system, however flawed, must continue in order to count each vote, no matter how long it takes. She argued that the Court’s belief that a recount is “impractical” is “untested” and “should not decide the Presidency of the United States.” Emblematic of the intensity of the case, Justice Ginsburg’s dissent was remembered for ending with “I dissent” instead of the typical “I respectfully dissent.” 

Impact

The Court’s decision resulted in Florida’s electoral votes being awarded to Governor George Bush. Vice President Gore conceded the presidency to Bush though he noted that he “strongly disagree[d] with the Court’s decision.” While Bush won the electoral college, Gore won the popular vote. Bush went on to be inaugurated and won again in the 2004 election against John Kerry. 

No one knows what would have happened had the Court not stepped in, and the outcome of the 2000 Election is remembered as controversial. The Court’s involvement with the election outcome was unlike Americans had ever seen before. Years later, Justice Sandra Day O’Connor, who ruled in favor of Bush, said that she has some regrets that the Court took up such an immediate issue, and stated that perhaps the Court should not have taken the case.

    Learn More

    1. “Bush v. Gore.” Encyclopedia Britannica, https://www.britannica.com/event/Bush-v-Gore.
    2. “Bush v. Gore.” Oyez, www.oyez.org/cases/2000/00-949.
    3. “On this day, Bush v. Gore settles 2000 presidential race.” Constitution Daily, (12 December 2019) https://constitutioncenter.org/blog/on-this-day-bush-v-gore-anniversary. 
    4. “When Ruth Bader Ginsburg Dissented in Bush v. Gore.” Literary Hub, (1 October 2020) https://lithub.com/when-ruth-bader-ginsburg-dissented-in-bush-v-gore/. 

    Think Further

    1. Do you think that the involvement of people in the Bush or Gore inner circles in Florida had any influence on the outcome of the election? 
    2. Do you agree with both parts of the Court’s decision, only one, or neither?
    3. Did the Florida Supreme Court create new election law as Chief Justice Rehnquist alleged? 

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