None Dare Call It Treason

Bush v. Gore

Bush v. Gore, , was a United States Supreme Court case decided on December 12, 2000. The case effectively resolved the 2000 presidential election in favor of George W. Bush. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board, , and only three days earlier, the United States Supreme Court had preliminarily halted the recount that was occurring in Florida.

In a per curiam decision, by a 7–2 vote, the Court in Bush v. Gore held that the Florida Supreme Court's method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. By a 5–4 vote, the Court held that no alternative method could be established within the time limits set by the State of Florida. Three of the 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 decision allowed Florida Secretary of State Katherine Harris's previous certification of George W. Bush as the winner of Florida's electoral votes to stand. Florida's 25 electoral votes gave Bush, the Republican candidate, 271 electoral votes, defeating Democratic candidate Al Gore, who ended up with 266 electoral votes (with one D.C. elector abstaining). A majority (270) of the electoral votes are needed to win the Presidency or Vice Presidency in the Electoral College. The decision would turn out to be highly controversial.

Background

The Presidential election in question took place November 7, 2000. Under the Electoral College system, each state conducts its own popular election for President and Vice President. The voters are actually voting for a slate of "electors" who are pledged to vote for particular candidates, for each office, in the Electoral College. Generally, though not always, the Presidential and Vice Presidential candidate who wins the popular vote in a state receives that state's electoral votes. A candidate who receives a majority (270) of the electoral votes wins the Presidential or Vice Presidential election.

On November 8, 2000, the Florida Division of Elections reported that Bush had a margin of victory of 1,784 votes. The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated automatic machine recount occurred. 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 allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward and Miami-Dade. The four counties granted the request and 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, after "considering all attendant facts and circumstances," had discretion to include any late amended returns in the statewide certification. Prior to the 5 p.m. deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 p.m. on November 14, Florida Secretary of State Katherine Harris announced that she was in receipt of the certified returns from all 67 counties, while Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.

Harris issued a set of criteria by which she would determine whether to allow late filings, and she required any county seeking to make a late filing to submit to her, by 2 p.m. 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 and litigation ensued.

Rapid developments

By December 8, 2000, there had been multiple court decisions regarding the Florida presidential election, and on that date the Florida Supreme Court, by a 4-3 vote, ordered a statewide manual recount. On December 9, the U.S. Supreme Court stayed the recount, by a 5–4 vote.

The oral argument in Bush v. Gore occurred on December 11. Bush's oral argument was delivered by Theodore B. Olson, a Washington, D.C. lawyer and future Solicitor General. Gore's oral argument was delivered by New York lawyer David Boies.

During the brief period when the U.S. Supreme Court was deliberating Bush v. Gore, the Florida Supreme Court provided clarifications which the U.S. Supreme Court had requested on December 4 in the case of Bush v. Palm Beach County Canvassing Board, . Because of the extraordinary nature and urgency of the case, the U.S. Supreme Court issued its opinion in Bush v. Gore on December 12, just 16 hours after hearing oral argument.

Relevant law

The Equal Protection Clause of the Fourteenth Amendment, which was of central importance in Bush v. Gore, ensures that:

Article II, § 1, cl. 2 specifies the number of electors per state, and, most relevant to this case, specifies the manner in which those electors are selected, stipulating that:

This clause arguably gives power to only one branch of Florida's state government (i.e., the state legislature).

The most important statute in this case was United_States_Code/Title_3/Chapter_1#.C2.A7_5._Determination_of_controversy_as_to_appointment_of_electors, which regulates the "determination of controversy as to appointment of electors" in Presidential elections. Of particular relevance to this case was the so-called "safe harbor" provision, which allows states to appoint their electors without interference from Congress if done by a specified deadline:

Since the electors were set to meet December 18, the "safe harbor" deadline was December 12, just one day after the Court heard oral arguments in this case.

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Issues

The court had to resolve two different questions to fully resolve the case:

Who wins on the merits of the case: Bush or Gore? In other words, are the recounts as they were being conducted, constitutional?
If the recounts are unconstitutional, what is the remedy?

Three days earlier, the five-Justice majority had ordered the recount stopped and the Court had to decide whether to re-start it.

Equal Protection Clause

Bush argued that the recounts in Florida violated the Equal Protection Clause of the Fourteenth Amendment because there was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. Each county used its own standard to manually recount each vote, and Bush argued some counties would have more lax standards than other counties. Therefore, two voters could have marked their ballot in an identical manner, but one voter's ballot in one county would be counted while the other voter's ballot in a different county would be rejected, due to the varying standards used for manual recounts.

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. 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 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 in order to be constitutional.

Remedy

This turned out to be 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 be to not cancel all recounts, but rather would be to order a proper recount.

Article II

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 their 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, however, that Article II gives the federal judiciary the power to interpret state election law for itself to ensure that the intent of the state legislature is followed.

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 in order to reach its decision.

The Court's decision

In brief, the breakdown of the decisions was:

Seven justices (the five Justice majority plus Breyer and Souter) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties.
Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Kennedy, O'Connor, Rehnquist, Scalia and Thomas in support; Breyer, Ginsburg, Souter and Stevens opposed). Justices Breyer and Souter wanted to remand the case back 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) agreed that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. Justices Kennedy and O'Connor did not opine one way or the other on this issue.

Equal Protection Clause

The Supreme Court ruled 7–2 that the Florida Supreme Court's decision, calling for a statewide recount, violated the Equal Protection Clause of the Fourteenth Amendment. The Court stated that the Equal Protection clause guarantees 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 suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county.

According to the 7–2 per curiam opinion, 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 per curiam opinion stated that its applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

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 ." The Court therefore effectively ended the election, 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. The four dissenters invoked the principle of fairness. The actual counting had ended with the December 9 injunction issued by the same five-justice majority, three days before any deadline. However, two of those four dissenters (i.e. Justices Breyer and Souter) acknowledged that the counting up until December 9 had not conformed with Equal Protection requirements.

The dissenting opinions were notable for their unusually harsh treatment of the majority. 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. Gore was not optimistic about how the Florida justices would react to further arguments, and in any event "the best Gore could hope for was a slate of disputed electors", as one of his advisers put it. So, Gore dropped the case. 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.

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.

Commentary

Bush v. Gore prompted many reactions from scholars, pundits, and others who were either very approving or very disapproving of what the Court had done.

Scholarly analyses of the critical remedial issue

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 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 last assertion by the 5–4 Bush v. Gore majority has proven very controversial.

Michael W. McConnell has written that the U.S Supreme Court "may have reached the right result. 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:

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 in order 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.

On the other hand, according to Nelson Lund, 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. 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. Abner Green 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." 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," in addition to the remand of December 4. The Court in Bush v. Gore did remand the case instead of dismissing it, but the remand did not include another request for clarification.

Scholarly analyses of other aspects of the decision

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. Opponents argued that it was improper for the Court (by the same 5 Justices who joined the per curiam opinion) to grant a stay that preliminarily stopped the recounts based on the possibility of irreparable harm and success on the merits. 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 stayed was a recount "being done in an unconstitutional way.

Some of the decision's critics argued that the Court's decision was a perversion of the Equal Protection Clause, and contrary to the political question doctrine. 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.

The dissent of Justice Stevens was criticized by George Mason University School of Law Professor Nelson Lund. Lund said that "[t]he best known passage, which comes from Justice Stevens' dissent, consists of a rhetorical flourish rather than analysis." Conversely, the majority opinion was criticized by Harvard University law professor Alan Dershowitz, who 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.

Some critics of the decision argue that the majority seemed to seek refuge from their own logic 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." The Court's defenders argued that this was a reasonable precaution against the possibility that the decision might be read over-broadly, 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.

Though all U.S. Supreme Court Justices who ruled in favor of Bush were Republican appointees, three Florida Supreme Court judges who ruled in favor of Bush were Democratic appointees.

There has also been analysis of whether or not several Justices had a conflict of interest that should have forced them to recuse themselves from the decision. Various ethics experts have asserted that there was no conflict of interest for Clarence Thomas or Antonin Scalia. Also, 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.

The Dred Scott comparison

Bill Clinton, who was President of the United States when the decision was made, wrote in his autobiography My Life:

If Gore had been ahead in the vote count and Bush behind, there's not a doubt in my mind that the same Supreme Court would have voted 9 to 0 to [re]count the vote and I would have supported the decision.... Bush v. Gore will go down in history as one of the worst decisions the Supreme Court ever made, along with the Dred Scott case.

The Reverend Jesse Jackson has also compared Bush v. Gore to Dred Scott. However, Congress of Racial Equality chairman Roy Innis responded that “Dred Scott should not be hustled and prostituted by Jesse Jackson,” while former U.S. Senator Alan K. Simpson called the comparison of Bush v. Gore to Dred Scott “hysterical babble”.