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20 Years Ago Today; SCOTUS rules on Bush v Gore, stopping the FL recount
https://en.wikipedia.org/wiki/Bush_v._Gore
Bush v. Gore, 531 U.S. 98 (2000), was a decision of the United States Supreme Court that settled a recount dispute in Florida's 2000 presidential election. The ruling was issued on December 13, 2000. On December 9, the Court had preliminarily halted the Florida recount that was occurring. Eight days earlier, the Court unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board. The Electoral College was scheduled to meet on December 18, 2000, to decide the election.
In a per curiam decision, the Court ruled that the use of different standards of counting in different counties violated the Equal Protection Clause, and ruled that no alternative method could be established within the time limit set by Title 3 of the United States Code (3 U.S.C.), § 5 ("Determination of controversy as to appointment of electors" ), which was December 12.] The vote regarding the Equal Protection Clause was 7–2, and regarding the lack of an alternative method was 5–4. Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature.
The Supreme Court decision allowed the previous vote certification to stand, as made by Florida Secretary of State Katherine Harris, for George W. Bush as the winner of Florida's 25 electoral votes. Florida's votes gave Bush, the Republican candidate, 271 electoral votes, one more than the required 270 to win the Electoral College, and the defeat of Democratic candidate Al Gore, who received 266 electoral votes (a "faithless elector" from the District of Columbia abstained).
Media organizations subsequently analyzed the ballots and found that the originally proposed county-based recounts would have resulted in a different outcome (Bush victory) than a full statewide recount (Gore victory). Florida subsequently changed to new voting machines to avoid punch cards which had allowed dimpled cards or hanging chad.
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.
Decision
In brief, the breakdown of the decisions was:
Seven justices (the five Justice majority plus Souter and Breyer) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties. The per curiam opinion (representing the views of Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas) also identified a problem with the fact that the Florida recount was limited to undervotes; the per curiam implied that a constitutionally valid recount would have included not only Florida's undervotes, but also Florida's overvotes and the ballots that were classified by Florida's voting machines as legal votes.[38] The per curiam expressed concern that the limited scope of Florida's recount would mean that some valid votes (among the overvotes) would not be counted as legal votes even though they should have been counted as such and that some ballots would be counted as legal votes even though they should not have been counted as such (as in, if a voter marks two choices on a ballot but a voting machine only reads one of these marks and thus treats this ballot as a valid vote instead of treating it as an invalid ballot like it is supposed to do). Justices Breyer and Souter disagreed with the Bush v. Gore majority in regards to this (in spite of their agreement with the Bush v. Gore majority that different standards for counting ballots in different counties was unconstitutional) and did not see any problem in Florida's decision to limit its recount to undervotes.
Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Rehnquist,[40] O'Connor, Scalia, Kennedy, and Thomas in support; Stevens, Souter, Ginsburg, and Breyer opposed). Justices Souter and Breyer wanted to remand the case to the Florida Supreme Court to permit that court to establish uniform standards of what constituted a legal vote and then manually recount all ballots using those standards.
Three justices (Rehnquist, Scalia and Thomas) argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. Four justices (Stevens, Souter, Ginsburg and Breyer) specifically disputed this in their dissenting opinions, and the remaining two Justices (O'Connor and Kennedy) declined to join Rehnquist's concurrence on the matter.
Equal Protection Clause
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 Protections 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".
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.
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'" ) 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."
Critics would later point out that the court had rejected certiorari on Equal Protections grounds when Bush first went to federal court. Law clerks who worked for Kennedy and O'Connor at the time would later state their belief that the judges settled on the Equal Protections as grounds for their decision, rather than Article II, because they thought it would seem more fair.
Remedy
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 (Justices Stevens, Ginsburg, Souter and Breyer) dissented as to stopping the recount. Two of these, 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 back 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. The actual counting had ended with the December 9 injunction issued by the same five-justice majority, three days before any deadline.
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:
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.
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." 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.'"
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.
Article II
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.
Bush v. Gore, 531 U.S. 98 (2000), was a decision of the United States Supreme Court that settled a recount dispute in Florida's 2000 presidential election. The ruling was issued on December 13, 2000. On December 9, the Court had preliminarily halted the Florida recount that was occurring. Eight days earlier, the Court unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board. The Electoral College was scheduled to meet on December 18, 2000, to decide the election.
In a per curiam decision, the Court ruled that the use of different standards of counting in different counties violated the Equal Protection Clause, and ruled that no alternative method could be established within the time limit set by Title 3 of the United States Code (3 U.S.C.), § 5 ("Determination of controversy as to appointment of electors" ), which was December 12.] The vote regarding the Equal Protection Clause was 7–2, and regarding the lack of an alternative method was 5–4. Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature.
The Supreme Court decision allowed the previous vote certification to stand, as made by Florida Secretary of State Katherine Harris, for George W. Bush as the winner of Florida's 25 electoral votes. Florida's votes gave Bush, the Republican candidate, 271 electoral votes, one more than the required 270 to win the Electoral College, and the defeat of Democratic candidate Al Gore, who received 266 electoral votes (a "faithless elector" from the District of Columbia abstained).
Media organizations subsequently analyzed the ballots and found that the originally proposed county-based recounts would have resulted in a different outcome (Bush victory) than a full statewide recount (Gore victory). Florida subsequently changed to new voting machines to avoid punch cards which had allowed dimpled cards or hanging chad.
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.
Decision
In brief, the breakdown of the decisions was:
Seven justices (the five Justice majority plus Souter and Breyer) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties. The per curiam opinion (representing the views of Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas) also identified a problem with the fact that the Florida recount was limited to undervotes; the per curiam implied that a constitutionally valid recount would have included not only Florida's undervotes, but also Florida's overvotes and the ballots that were classified by Florida's voting machines as legal votes.[38] The per curiam expressed concern that the limited scope of Florida's recount would mean that some valid votes (among the overvotes) would not be counted as legal votes even though they should have been counted as such and that some ballots would be counted as legal votes even though they should not have been counted as such (as in, if a voter marks two choices on a ballot but a voting machine only reads one of these marks and thus treats this ballot as a valid vote instead of treating it as an invalid ballot like it is supposed to do). Justices Breyer and Souter disagreed with the Bush v. Gore majority in regards to this (in spite of their agreement with the Bush v. Gore majority that different standards for counting ballots in different counties was unconstitutional) and did not see any problem in Florida's decision to limit its recount to undervotes.
Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Rehnquist,[40] O'Connor, Scalia, Kennedy, and Thomas in support; Stevens, Souter, Ginsburg, and Breyer opposed). Justices Souter and Breyer wanted to remand the case to the Florida Supreme Court to permit that court to establish uniform standards of what constituted a legal vote and then manually recount all ballots using those standards.
Three justices (Rehnquist, Scalia and Thomas) argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. Four justices (Stevens, Souter, Ginsburg and Breyer) specifically disputed this in their dissenting opinions, and the remaining two Justices (O'Connor and Kennedy) declined to join Rehnquist's concurrence on the matter.
Equal Protection Clause
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 Protections 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".
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.
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'" ) 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."
Critics would later point out that the court had rejected certiorari on Equal Protections grounds when Bush first went to federal court. Law clerks who worked for Kennedy and O'Connor at the time would later state their belief that the judges settled on the Equal Protections as grounds for their decision, rather than Article II, because they thought it would seem more fair.
Remedy
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 (Justices Stevens, Ginsburg, Souter and Breyer) dissented as to stopping the recount. Two of these, 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 back 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. The actual counting had ended with the December 9 injunction issued by the same five-justice majority, three days before any deadline.
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:
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.
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." 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.'"
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.
Article II
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.
Vice President Gore's concession speech after the ruling - I sobbed during it:
7 replies
= new reply since forum marked as read
= new reply since forum marked as read
Of democracy, in my opinion. I had never been so depressed or outraged by something...went to protest in DC on his miserable "inauguration" day, found DU, and came up with my DU name: Delaware + Rage = Delarage
