Presidents and the Law: Bush v. Gore
The outcome of the Presidential Election of 2000 remained uncertain for over a month after election day. It wasn't until December 12, 2000 that the Supreme Court of the United States released its decision in the landmark case of Bush v. Gore. The practical result of the case was that Florida's 25 electoral votes were awarded to Republican candidate George W. Bush, who then became the 43rd President of the United States.
The 2000 Presidential election took place on November 7, 2000. The election results were too close to call because it was uncertain which candidate had received the most votes in the state of Florida. The following day, on November 8, 2000, the Florida Division of Elections reported that Bush had won 48.8% of the vote in Florida, by a margin of victory of 1,784 votes. This margin was less than 0.5% of the votes cast, so state law required that an automatic machine recount had to occur. On November 10, with the machine recount finished in all but one county, Bush's margin of victory had decreased to 327. Florida's election laws allowed a candidate to request a county to conduct a manual recount. Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward and Miami-Dade, all counties that traditionally voted Democratic. Gore did not request any recounts in counties that traditionally vote Republican.
The four counties began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, and several of the counties conducting manual recounts did not believe they could meet this deadline. On November 14, the statutory deadline, the Florida Circuit Court ruled that the seven-day deadline was mandatory, but that the counties could amend their returns at a later date. The court also ruled that the Secretary of State, after "considering all attendant facts and circumstances," had discretion to include any late amended returns in the statewide certification. Before the 5 pm deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 pm on November 14, Florida Secretary of State Katherine Harris announced that she had received the certified returns from all 67 counties, even though Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.
Harris required any county seeking to make a late filing to submit to her, by 2 pm the following day, a written statement of the facts and circumstances justifying the late filing. Four counties submitted statements, and after reviewing the submissions Harris determined that none justified an extension of the filing deadline. She further announced that after she received the certified returns of the overseas absentee ballots from each county, she would certify the results of the presidential election on Sunday, November 26, 2000. On that date, she certified Bush the winner. The Democratic Party was unhappy with this result and litigation ensued.
On December 8, 2000, the Florida Supreme Court, by a 4-3 vote, ordered a statewide manual recount. The next day, December 9, the U.S. Supreme Court voted 5 to 4 to stay the Florida recount. Justice Scalia stated in his reasons for staying the recount:
"It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether 'counting every legally cast vote can constitute irreparable harm.' One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, 'legally cast votes.' The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."
The dissenters wrote:
"Counting every legally cast vote cannot constitute irreparable harm... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."
The four dissenting justices argued that stopping the recount was an "unwise" violation of "three venerable rules of judicial restraint", namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when "another branch of the Federal Government" has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue.
The oral argument in Bush v. Gore took place on December 11. A large number of protesters for both sides gathered in front of the Supreme Court building. Theodore Olson, a Washington, D.C. lawyer and future Solicitor General, delivered Bush's oral argument and New York lawyer David Boies argued for Gore. The Court had to resolve two different questions to fully resolve the case:
1. Were the recounts, as they were being conducted, constitutional?
2. If the recounts were unconstitutional, what is the remedy?
The court issued its decision the following day. Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Justices Kennedy, O'Connor, Rehnquist, Scalia and Thomas in support; Justices Breyer, Ginsburg, Souter and Stevens opposed). Justices Breyer and Souter 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. However, four justices (Breyer, Souter, Ginsburg, and Stevens) specifically disputed this in their dissenting opinions, and the remaining two Justices (Kennedy and O'Connor) declined to join Rehnquist's concurrence on the matter.
The practical result was that the result as certified by Kathleen Harris was upheld. Bush had won Florida and had been elected President of the United States.
Despite dissatisfaction with the decision, the final result likely matched the will of the voters of the state of Florida. In 2001, a group of news organizations, assisted by professional statisticians, 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. Under some methods, Al Gore would have emerged the winner; in others, George W. Bush. But in each one, the margin of victory 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. The study concluded that 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 winner by 493 votes.
The 2000 Presidential election took place on November 7, 2000. The election results were too close to call because it was uncertain which candidate had received the most votes in the state of Florida. The following day, on November 8, 2000, the Florida Division of Elections reported that Bush had won 48.8% of the vote in Florida, by a margin of victory of 1,784 votes. This margin was less than 0.5% of the votes cast, so state law required that an automatic machine recount had to occur. On November 10, with the machine recount finished in all but one county, Bush's margin of victory had decreased to 327. Florida's election laws allowed a candidate to request a county to conduct a manual recount. Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward and Miami-Dade, all counties that traditionally voted Democratic. Gore did not request any recounts in counties that traditionally vote Republican.
The four counties began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election, and several of the counties conducting manual recounts did not believe they could meet this deadline. On November 14, the statutory deadline, the Florida Circuit Court ruled that the seven-day deadline was mandatory, but that the counties could amend their returns at a later date. The court also ruled that the Secretary of State, after "considering all attendant facts and circumstances," had discretion to include any late amended returns in the statewide certification. Before the 5 pm deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 pm on November 14, Florida Secretary of State Katherine Harris announced that she had received the certified returns from all 67 counties, even though Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.
Harris required any county seeking to make a late filing to submit to her, by 2 pm the following day, a written statement of the facts and circumstances justifying the late filing. Four counties submitted statements, and after reviewing the submissions Harris determined that none justified an extension of the filing deadline. She further announced that after she received the certified returns of the overseas absentee ballots from each county, she would certify the results of the presidential election on Sunday, November 26, 2000. On that date, she certified Bush the winner. The Democratic Party was unhappy with this result and litigation ensued.
On December 8, 2000, the Florida Supreme Court, by a 4-3 vote, ordered a statewide manual recount. The next day, December 9, the U.S. Supreme Court voted 5 to 4 to stay the Florida recount. Justice Scalia stated in his reasons for staying the recount:
"It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether 'counting every legally cast vote can constitute irreparable harm.' One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, 'legally cast votes.' The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."
The dissenters wrote:
"Counting every legally cast vote cannot constitute irreparable harm... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."
The four dissenting justices argued that stopping the recount was an "unwise" violation of "three venerable rules of judicial restraint", namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when "another branch of the Federal Government" has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue.
The oral argument in Bush v. Gore took place on December 11. A large number of protesters for both sides gathered in front of the Supreme Court building. Theodore Olson, a Washington, D.C. lawyer and future Solicitor General, delivered Bush's oral argument and New York lawyer David Boies argued for Gore. The Court had to resolve two different questions to fully resolve the case:
1. Were the recounts, as they were being conducted, constitutional?
2. If the recounts were unconstitutional, what is the remedy?
The court issued its decision the following day. Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Justices Kennedy, O'Connor, Rehnquist, Scalia and Thomas in support; Justices Breyer, Ginsburg, Souter and Stevens opposed). Justices Breyer and Souter 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. However, four justices (Breyer, Souter, Ginsburg, and Stevens) specifically disputed this in their dissenting opinions, and the remaining two Justices (Kennedy and O'Connor) declined to join Rehnquist's concurrence on the matter.
The practical result was that the result as certified by Kathleen Harris was upheld. Bush had won Florida and had been elected President of the United States.
Despite dissatisfaction with the decision, the final result likely matched the will of the voters of the state of Florida. In 2001, a group of news organizations, assisted by professional statisticians, 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. Under some methods, Al Gore would have emerged the winner; in others, George W. Bush. But in each one, the margin of victory 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. The study concluded that 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 winner by 493 votes.