Caseflicks

Supreme Court of the United States • 2000

Bush v. Gore

531 U.S. 98 | 121 S. Ct. 525 | 148 L. Ed. 2d 388 | 2000 U.S. LEXIS 8430

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Takeaway

In short, this case held that Florida’s nonuniform recount procedures violated equal protection and, because a lawful replacement recount could not be completed by the safe-harbor date, ended the recount and effectively decided Florida’s electoral vote for Bush.

Background

After the November 7, 2000 presidential election, Florida’s initial machine count showed George W. Bush ahead of Albert Gore by 1,784 votes. An automatic machine recount reduced Bush’s margin. Gore then pursued manual recounts in several counties under Florida’s election-protest procedures, focusing largely on punch-card ballots that machines had recorded as presidential “undervotes.”

Florida’s Elections Canvassing Commission certified Bush as the winner of Florida’s 25 electoral votes on November 26. Gore brought an election contest in state circuit court, alleging that enough legal votes had been rejected to place the result in doubt. The circuit court denied relief, but the Florida Supreme Court ordered the inclusion of vote gains identified in Palm Beach and Miami-Dade Counties, directed a hand count of approximately 9,000 Miami-Dade undervotes, and authorized manual recounts of undervotes in other counties that had not conducted them.

Bush sought emergency relief in the U.S. Supreme Court. On December 9, the Court stayed the Florida recount order, granted certiorari, and heard argument on December 11. The case was decided the next day, the federal “safe harbor” date referenced in 3 U.S.C. § 5.

Issues

Issue #1

Whether Florida’s court-ordered manual recount procedures violated the Equal Protection Clause of the Fourteenth Amendment.

Holding

Yes. The recount procedures lacked constitutionally adequate, uniform standards for determining which ballots counted as legal votes and therefore subjected similarly situated voters to arbitrary and disparate treatment.

Reasoning

Once a state legislature chooses popular election as the method for appointing presidential electors, the right to vote as the legislature has prescribed is fundamental. Equal protection protects not only access to the ballot, but also the equal weight and equal treatment of votes when they are counted.

Florida’s general instruction to determine the “intent of the voter” was an acceptable starting principle, but it did not supply workable, uniform rules for interpreting recurring physical ballot conditions. The Court concluded that specific standards were both practicable and necessary when officials were evaluating marks, perforations, and chads on ballots rather than making individualized credibility judgments.

The record showed that local officials used different standards for equivalent ballots. For example, Palm Beach County changed its treatment of attached and dimpled chads during the recount, and evidence indicated that different Miami-Dade canvassing-board members applied different standards. Thus, identical ballot marks could be accepted in one setting and rejected in another.

The unequal treatment extended beyond differing standards for individual chads. Some counties manually recounted all ballots, including overvotes, while the statewide remedy focused on undervotes; the Florida Supreme Court also required inclusion of totals produced under varying county standards and permitted inclusion of a partial Miami-Dade count. These features created unequal opportunities for voters to have machine-rejected ballots reconsidered.

The Court limited its ruling to the unusual setting before it: a statewide recount ordered by a state court that possessed authority to ensure uniformity. It did not hold that local jurisdictions may never use different voting systems or election procedures.

Issue #2

What remedy was appropriate for the equal-protection violation in light of the presidential-election timetable.

Holding

The Florida Supreme Court’s recount order had to be reversed because no constitutionally valid recount could be completed by December 12, 2000, the date Florida had indicated it wished to meet for the federal safe harbor under 3 U.S.C. § 5.

Reasoning

A constitutionally adequate recount would require substantial additional work: statewide rules for identifying legal votes, procedures for implementing those rules, an opportunity to raise and resolve ballot disputes, and judicial review. The Court also noted practical difficulties in identifying and processing undervotes and, potentially, overvotes.

The Florida Supreme Court had said that the Florida Legislature intended Florida’s electoral selection to receive the benefits of the federal safe harbor. Because December 12 had arrived and a constitutional recount procedure was not in place, the Court concluded that a recount designed to meet that deadline could not proceed lawfully.

Accordingly, the Court reversed the Florida Supreme Court’s judgment and directed that its mandate issue immediately. The practical result was that Florida’s certified vote count, showing Bush ahead, remained controlling.

Issue #3

Whether the Florida Supreme Court’s interpretation of Florida election law violated Article II by departing from the state legislature’s prescribed manner of appointing presidential electors.

Holding

The per curiam opinion did not decide this question; it resolved the case on equal-protection grounds. Three Justices, however, would have reversed on this additional ground.

Reasoning

The Court identified Article II and 3 U.S.C. § 5 as questions presented, but expressly found an Equal Protection Clause violation and rested its judgment on that ground. The separate concurrence of the Chief Justice, joined by Justices Scalia and Thomas, supplied the alternative Article II analysis.

Because the Article II theory did not command a majority of the Court, it was not the controlling basis of the judgment. Its later significance lies chiefly in the competing accounts of the relationship between state legislatures, state courts, and federal review in presidential-elector disputes.

Concurrences

Chief Justice Rehnquist

Reasoning

Chief Justice Rehnquist, joined by Justices Scalia and Thomas, agreed that the judgment should be reversed but maintained that Article II independently required reversal. In a presidential election, Article II gives the state “Legislature” authority to direct the manner of appointing electors; therefore, federal courts may examine whether a state court has departed so far from the legislature’s scheme that it has effectively made new law.

The concurrence accepted that state courts normally receive deference when interpreting state law. But it treated presidential elections as exceptional because Article II assigns a particular constitutional function to the state legislature. In its view, the Supreme Court had to conduct an independent, though deferential, examination of Florida law to determine whether the Florida Supreme Court had displaced the legislature’s choices.

Applying that approach, the concurrence concluded that the Florida court altered Florida’s statutory framework. It criticized the extension of certification deadlines, the de novo treatment of canvassing-board decisions, the inclusion of late recount totals, and the conclusion that ballots not properly read by machines were nonetheless “legal votes.”

The concurrence also reasoned that the Florida Supreme Court’s remedy could not be “appropriate” under Florida’s contest statute because it jeopardized Florida’s ability to obtain the federal safe harbor by December 12. In its view, an open-ended recount and the inevitable ensuing appeals could not be completed in time.

Dissents

Justice Stevens

Reasoning

Justice Stevens argued that Article II does not free state legislatures from the state constitutions and judicial-review systems that define their authority. Florida’s Supreme Court was the authoritative interpreter of Florida election law, and nothing in Article II or 3 U.S.C. § 5 authorized the U.S. Supreme Court to substitute its own view of state law.

He rejected the majority’s equal-protection analysis, reasoning that an “intent of the voter” standard is a familiar and sufficiently usable legal standard. Any differences among local recount practices could be addressed through review by the impartial circuit judge supervising the recount.

Even if a constitutional defect existed, Stevens maintained that stopping the recount was perverse. Florida law treated ballots revealing voter intent as legal votes, and the proper remedy would have been a remand for more specific and uniform procedures rather than an order that left potentially valid votes uncounted.

Stevens also stressed that the federal safe-harbor provision did not prohibit Florida from continuing to determine its electors after December 12. He concluded that the decision’s gravest cost was damage to public confidence in judicial neutrality and the rule of law.

Justice Souter

Reasoning

Justice Souter concluded that neither 3 U.S.C. § 5 nor Article II justified federal intervention. Section 5 merely offers a state a safe harbor in Congress’s later counting of electoral votes; it does not require a state to meet that deadline or give this Court authority to enforce it.

He regarded the Florida Supreme Court’s interpretation of its contest statute as reasonable. The statutory terms “legal vote,” “rejection,” and votes sufficient to “place in doubt” an election’s result required interpretation, and the state court’s readings did not exceed the ordinary bounds of judicial construction.

Unlike Justice Stevens, Souter found a substantial equal-protection concern in the use of different standards for identical kinds of punch-card ballots. He agreed that no legitimate state interest justified counting an identically marked ballot in one county but not another.

Souter would have remanded to Florida’s courts with instructions to establish uniform standards for comparable ballots. He rejected the majority’s assumption that Florida could not attempt a lawful recount before the electors met on December 18, particularly because the relevant statewide undervote total was far smaller than the total number of all machine-rejected ballots.

Justice Ginsburg

Reasoning

Justice Ginsburg emphasized the ordinary federalism rule that a state’s highest court is the final judicial arbiter of state law. In her view, disagreement with the Florida Supreme Court’s interpretation of the election code did not justify characterizing that court as having legislated in violation of Article II.

She argued that the rare precedents allowing this Court to scrutinize a state court’s characterization of state law involved extraordinary circumstances, such as state-court efforts to evade federal treaty rights or civil-rights protections. Florida’s effort to count legal votes did not resemble those cases.

Ginsburg also rejected the equal-protection ruling. Although the recount could have been improved, she did not believe it would be less fair than the certified result produced by voting systems with materially different error rates across counties.

Finally, she maintained that the December 12 date was not dispositive. The safe harbor is optional, electoral votes are cast later, and Congress retains authority under the Electoral Count Act to evaluate electoral votes. The Court’s conclusion that a constitutional recount was impractical was, in her words, an untested prediction that should not decide the presidency.

Justice Breyer

Reasoning

Justice Breyer agreed that the lack of a uniform subsidiary standard for evaluating disputed punch-card ballots raised a serious equal-protection concern in these exceptional circumstances. He did not agree, however, that the problems concerning overvotes or differing county recount scopes were established on the record as constitutional violations.

He would have adopted a narrower remedy: remand to permit Florida’s courts to require a statewide recount of undercounted ballots under one uniform standard. Halting the recount entirely, he argued, was disproportionate because it ensured that ballots potentially containing legal votes would never be counted.

Breyer disputed the majority’s conclusion that time had run out. There was no adequate record showing that a recount could not be completed before the electors met on December 18, and the Florida courts were better positioned than the U.S. Supreme Court to decide the practical and state-law questions involved.

He also rejected the Article II and safe-harbor theories advanced by the concurrence. The Constitution and Electoral Count Act assign Congress the principal role in resolving unresolved disputes over electoral votes, and judicial restraint was especially important because a sharply divided Court’s intervention risked harming its institutional legitimacy.