2000 election: SCOTUS decision on Bush v Gore

Great Debates
1

In 2000, the supreme court voted 5-4 on a decision that effectively gave George Bush the white house. But I recall the court wasn’t directly voting on Bush vs Gore; they were voting on whether florida law allowed the state’s votes to be recounted past some deadline.

I would have assumed florida’s law would clearly spell out the rules in black and white. The fact that the court split so evenly down party lines implies the decision may have been based more on politics than the merits of the case; but that said, is there anything like precedent for this case, or a relevant section of florida law, or an analysis by an objective law professor which discusses what the ‘correct’ decision for that case was?

Ignoring the politics of the case and whether Bush or Gore would have made a better president, did the 5-4 court decision match the prevailing law at the time? Who was legally right – the 5 or the 4?

2

Actually, it’s a little more complicated than that. The ruling was 7-2. The part that was ruled 5-4 was whether of not there was a proper remedy within FL law and the time limitation.

Cite.

3

Generally speaking, the Supreme Court has deferred to the states in issues of election procedures. Each state sets up its own procedures and those along with the state court rulings on the procedures are usually not overturned by the Supreme Court unless their is a clear intent to violate the Constitution.

However, in the 2000 Bush v. Gore decison, the Supreme Court chose to overrule the decison that had been made in Florida. Unusually while it ruled that Florida’s procedure on this election were unconstituional it stated that its decison was not a precedent and that therefore its decison would not apply to potential future elections. It was these two factors that led some people to believe that the Supreme Court was simply ruling on who it wanted to win the election rather than on any broader constitutional issue.

4

The Supreme Court is always legally right - they’re the final arbitrator of what is or is not legal in the United States. When they say something is legal, it is - because they said so.

5

Sorry, but “it depends.”

Florida law required that every county certify their results to the Florida Secretary of State within seven days of the election. The counts at that point had Bush ahead by several hundred votes (a razor-thin percentage margin). Gore sought a manual recount in Miami-Dade, Broward, Volusia, and Palm Beach counties. The counties began a manual recount, but could not complete it in time.

The Florida Supreme Court ruled that the seven day limit was mandatory as wrtten. But even though the law made no provisions for any extensions, the Florida Supremes ruled that counties could submit amended returns later and the Florida Secretary of State could, in her discretion, accept them. The Florida SoS announed that every county seeking to sumit “amended” returns would need to submit the reasons for their delay. After the reasons were submitted, she refused to accept any of them, sticking to the original seven-day limit, and certified Bush as the winner.

Also at issue was the December 12th “safe harbor” law – if a state submitted its results to Congress by December 12th, then Congress had to accept them. After Deecmber 12th, Congress had some freedom to refuse to accept the state delegates. The best estimate was that the manual recounts would take about a week longer than that deadline.

The final issue was the standards being used to recount the votes. Because it was a manual recount, each punch card was being examined for “the intent of the voter.” In some cases, a card without a hole, or with an incomplete hole, or with two holes, was present and had to be evaluated to determine what the voter meant to do. For example, if there was a partially punched vote for Gore and a fully punched vote for Bush, was that a spoiled vote? What there was only a depressed impression on the card with no hole punched through? What if there were two such impressions?

The Bush team argued that each county was using its’ own standards of judgement to recount those votes (“undervotes” and “overvotes”). They argued that this violated the Equal Protection Clause of the Fourteenth Amendment to the federal constitution, which made it a federal question.

The Supreme Court of the United States agreed with Bush. Seven justices felt there was an equal protection violation; two did not. Of the seven, two felt that the right remedy was to go back and start the recount again, with a clear statewide standard, even if it took longer than December 12th. The other five said that the going past the time wasn’t the right remedy, and that the only constitutional thing to do was accept the Florida SoS’s certification.

So: 7-2 that the Florida Supreme Court’s scheme for recounting ballots was unconstitutional. 5-4 that there was no time to create a new scheme.

It’s absolutely true that any recont scheme would have taken the count past the Deecmber due date. So strictly speaking, the Court’s decision was legally sound.

Opponents argue that there was nothing magic about that due date, and it was more important to get a solid count than to adhere to arbitary deadlines. Their argument was more a “spirit of the law” approach.

So – it depends. Was the spirit of counting each vote, to determine the intention of the voter (even if the card wasn’t correctly punched) worth more than the letter of the law in meeting a deadline that the law clearly defines but could practically have been extended?

You tell me.

6

Damfino. But a good summation.

I find I’m suspicious of the ‘Here’s our decision but it doesn’t set a precedent.’ thing. While I’m a regular SCOTUS watcher I can’t claim to have any special legal knowledge. However, in the business world that I regularly inhabit that wouldn’t pass the ‘giggle test’ when trying to present it as a business plan, if you know what I mean.

At a minimum it seems designed to set off decades worth of protests and cynicism.

7

As an addendum, a consortium of media outlets paid their own money to have the recount finished anyway - and found that under almost all scenarios Bush would have won anyway.

From PBS Newshour, which I hope can be accepted as not a Republican mouthpiece:

8

The ironicalistic thing (to use a comedic Bushism) is that Bush would’ve won under the recount method Gore was pushing for (a few counties only) and Gore would’ve won under the recount method Bush was pushing (the entire state).

9

The “here’s our decision but it doesn’t set a precedent” thing is pretty standard. Just not so much in the Supreme Court. Many State Supreme Courts (most notably, California) will issue “unpublished” opinions or will occasionally “de-publish” older opinions. Unpublished opinions look just like published ones except for a notation at the beginning of the case. They’re collected up and printed in thick leatherbound volumes just like published ones. These opinions aren’t overturning the old holding: the courts just don’t want it to be binding precedent.

They do this when a controversy really needs to be decided, but the particular facts of a case might lead to inconsistent precedent.

Many people think that the 2000 election was a good use of an (AFAIK unprecedented) “unpublished” SCOTUS opinion. The world needed a sense of catharsis and finality which was more likely to come from a decision from the highest court in the land than an obscure* State official. Whether the need for finality and clarity outweighs the doctrine that the SCOTUS doesn’t decide political matters – well, that’s a matter for another forum.
*How many State Secretaries of State can you name? I’m embarrassed to say I can’t even name my own!

10

For an entertaining read about the entire process, I recommend “The Accidental President: How 413 Lawyers, 9 Supreme Court Justices, and 5,963,110 Floridians (Give or Take a Few) Landed George W. Bush in the White House” by David Kaplan.

For a polemic about how SCOTUS got it completely wrong, try “The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President” by Vincent Bugliosi and Gerry Spence.

11

I’m sorry but I am missing how it is a “good use” of an unpublished SCOTUS decision.

According to Bricker’s nice summary it looks like they ruled on two items.

  1. Did differing recount standards violate the Equal Protection Clause. They said yes, it did violate that clause.

For this it seems rather straightforward to me. The SCOTUS is saying for such a process there needs to be a consistent set of rules statewide on how to judge each ballot. Why would that not be a precedent anywhere else whatever the screwy messup that got to a recount? You need to have consistent standards, whatever those may be and up to the state to decide, for a manual recount.

  1. Can the recount go past a particular date? They said no.

The law, while perhaps arbitrary, is the law and it is reasonable to have some deadline set. So, get it in by the appointed date. The rule is consistent for everyone. Presumably (although they did not say so but I am guessing) if some extenuating circumstance occurs (say a hurricane in Florida on election day) Congress could pass a resolution (or something) to extend their time. But lacking a specific override from Congress the deadline is it. Why would this not be a precedent? Seems simple and straightforward enough. If the people do not like that arbitrary date they are free to change the law to specify a new arbitrary date.

Bottom line, for me, the whole “this is no precedent” thing sits badly with me. Admittedly it may be my lack of understanding on how the judiciary just does stuff sometimes and there is really nothing to see here but sounds like they did not have the courage of their convictions and for the SCOTUS in particular that is worrisome to me.

12

This is a pretty good collection of essays on the decision: http://www.amazon.com/Badly-Flawed-Election-Debating-Democracy/dp/1565847377

13

Hoping this isn’t too political for GQ, but the worst aspect of the majority opinion (other than of course the outcome) was the basis of the equal protection claim. The majority held that Bush would suffer “irreparable harm” because of the notion that the “legitimacy” of his claim to have been elected would be “clouded.” I read that section of the opinion and my jaw just dropped.

14

Here’s what they said:

Their point was that that the factual circumstances present here were unlikely to be repeated, and the decision was highly fact-dependent. (Example: “Should a county canvassing board count or not count a ‘dimpled chad’ where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree”).

15

Hmm…ok, bear with my lack of legal background here but from what you post is it fair to summarize their decision as follows?

  1. SCOTUS feels the recount system in Florida is fundamentally flawed.

  2. They refuse to allow enough time to fix the issues that plague the system

Result, the SCOTUS believe in “minimum procedures necessary to protect the fundamental right of each voter” (their words), felt the system was flawed and so let those very fundamental rights get trampled by denying any remedy for a recount. Just go back to the heavily disputed original vote and live with it thus depriving Florida voters of the very fundamental rights the SCOTUS is there to protect.

Stinks to me.

16

The question I had back then, and still have is the following: since different states (and perhaps different counties withing states) use different voting mechanisms (punch ballots, optical scan, etc), each with its own error rate, doesn’t that violate the Equal Protection Clause?

That is, people in, say, Iowa have a 4% chance of their vote being recorded erroneously, while in, say, Kansas, they have a 2% chance of their vote being recorded erroneously.

Shouldn’t the Equal Protection Clause imply that all states use the same vote tabulation scheme?

17

The original system may well have been flawed, but it was fairly flawed – that is, the exact same standard was applied across the state to count ballots. If the machine could read it, it counted. That was consistent with the concept of Equal Protection.

The Constitution doesn’t guarantee to an individual voter the right to have his mistakes fixed on a ballot. It just says that all ballots have to be treated the same way.

Furthermore, no one was asking the Court to overhaul the entire Florida system. They were asking the Court to decide if the recount scheme was OK.

Fixing the entire system is really more of a job for the legislature, wouldn’t you say?

18

Not really. Maybe if we had a national popular vote, but the Electoral College system means that all that matters is how your vote is counted within your state. If all Iowans suffer from the same 4% error across the board, and it doesn’t favor one party over another, then it’s consistent with the Equal Protection Clause.

19

Eh? Weren’t there multiple methods in use in the original system? I don’t recall the butterfly ballot, for example, being employed all across the state.

20

But even within a state there are differences between counties in what voting technology is used.

For example, take a look at this site

Why doesn’t that violate the Equal Protection Clause?