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Bush v. Gore

Published on 25th March 2017

Bush v. Gore 531 U.S. 98 (2000)

Facts: The US presidential election of 2000 between Texas Governor George Bush and sitting Vice President Al Gore was too close to call. In the end, it came down to the allocation of Florida’s 25 electoral votes. The initial count put Bush ahead by 1,780 votes but, upon recounting, the gap narrowed to 250 votes with absentee ballots yet to come in. The discrepancy of undercounted ballots leaned heavily toward Democratic counties, calling into question the entire counting process. Gore then asked for manual recounts in select counties, but Florida law stipulated that the Secretary of State, Katherine Harris, had to certify results within 7 days. Harris declared Bush the winner on November 18, prompting Gore to sue, and the Florida Supreme Court extended the deadline for recounts. Bush appealed to the U.S. Supreme Court, which ruled to stay the recount, but the Florida Supreme Court responded by ordering a new statewide manual recount, with the express mission to “determine voter intent” on undercounted ballots. Bush contested this in the United States Supreme Court.

Question: Did the Florida Supreme Court, in ordering the manual recount, exceed its authority of statutory interpretation and in so doing violate Article II section 1 clause 2 of the Constitution? Did it violate the Equal Protection clause of Amendment XIV by not regulating equal standards for that recount?

Holding: The Court ruled per curiam that, without universal and enforceable standards, the statewide manual recount violated the Equal Protection clause. It also ruled 5-4 that December 12 had to be the deadline for certification (which was the date of the opinion.)

Rationale: The Court acknowledged that the present issue was grave due to its ability to decide a presidential election. Florida has an Article II right to operate its own elections, but many ballots were unclear. The Court ruled that to order a recount of these undercounted ballots with a vague mission to establish voter intent would violate the Equal Protection clause as there were no specific standards. Some counters consider a simple dimple to be voter intent, but others may determine their standard based on if light can go through the hole made by the stylus. The Florida Court had not provided adequately for fair safeguards of voters and thus, the recount was unconstitutional. There is no remedy either, for Florida law specifically dictates a final certification date of December 12. There is simply no time. The ruling of the Florida Supreme Court is reversed.

In a concurrence, Justice Rehnquist wrote that Article II was violated as well because it is the sole province of state legislatures to determine election procedure, not state courts. Justice Stevens dissented, arguing that the courts of Florida have the right of judicial review and that to simply reject the court’s decision is to express a stunning lack of faith in the capacity of state judges. Justices Souter, Ginsburg, and Breyer also dissented, each arguing against simple assumptions about timeline. There was no harm in remanding, extending the deadline to December 18 and at least giving the recount a chance to succeed.

The implications of this case were ideologically severe far more than they were legally open-ended. It placed the Supreme Court directly in the public eye and raised serious questions about judicial politicization. The vote was evenly split down ideological lines to effectively elect a new president, opening the door to philosophical questions on the role of the court. 

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