As the thread title indicates, what I’m asking is what the underlying constitutional principle guiding the majority decision in the 2000 case of Bush v. Gore was. I’m not looking to resurrect the debates on what its validity may or may not have been – but in any discussion of the case that I’ve read, the writer gets bogged down in undervotes, overvotes, pregnant chads, time limits for certifying results, etc., and does not make clear the basic principle.
Effectively, I’m asking, “If you were writing headnotes for 2000-term SCOTUS decisions, what would be the accurate summary, in one paragraph, of the decision in Bush v. Gore?”
I see this as a GQ with a more-or-less factual answer, not as a debate on the case – though different constitutional scholars might read the case slightly differently. So I’m asking it here, with a request not to get into whether or not the majority was right, politically motivated, etc. – “just the facts, ma’am!”
As far as I can tell, the majority opinion ruled that because there weren’t statewide standards for recounts (every county board applied their own standards as to which ballots would be allowed), there was an equal protection problem. You and I might have submitted identical ballots, but because our counties had different ballot review standards during the recount, my vote was counted and yours wasn’t. So, the law isn’t being applied uniformally Since there wasn’t time to establish a statewide standard on acceptable ballots and recount them using the new standard, after the Supremes made their decision, Florida had to rely on the original totals, which applied the same standard throughout the state.
I don’t beleive this to be the case. THere was somehting in Fl law that allows the Fl legslature to select their electors in the event of problems with the vote.
Seems to me that a thorough partial recount would amount to a partially thorough recount, which is what Captain Amazing was talking about and Minty Green stamped with approval.
Separation of powers. The Executive, legislative, and judicial branches are independent of each other. I think that the point was the primacy of the state legislature in setting the rules regarding federal elections. The US Constitution states that the legislature of the state alone determines the method of selection. The Florida state supreme court issued orders to stop the certification, and gave guidelines that overruled what had been the law, as written by the Florida state legislature. Since the US Constitution is the final say, the US Supreme Court ruled that the Florida supreme court could not re-write the law, at least for federal elections. The subsequent attempts at a partial re-count may have been rejected for any of the reasons posted above, but the real issue was the ability of the state legislature to determine the election rules and methods without any interference from the judicial (or for that matter, executive) branches.
No justification for the decision was adopted by the majority. As I recall, the Scalia-Thomas duo provided one written opinion, Rehnquist concurred for somewhat distinct reasons, and O’Conner and Kennedy were silent.
I think it’s fair to say that the decision cannot be used as precedent for anything.
It’s what YPOD said. Basically, they ruled that the Florida Supreme Court had no authority to change the state’s election laws, and they ordered everybody to follow the laws as they were written.
The part about stopping any further recounts is bit more questionable. I suspect that it arose from a mindset of “dammit, we are not gonna let this drag on for weeks!”
No, it is emphatically, NOT what YPOD said. The “separation of powers” argument was accepted by only three justices–Rhenquist, Scalia, and Thomas. In other words, that argument lost decisively. The winning argument, as reflected in the per curiam majority opinion, is the one identified by Captain Amazing and me: Equal Protection.
Per curiam majority: O’Connor, Kennedy, Rhenquist, Scalia, Thomas (Equal Protection)
Concurrence: Rhenquist, Scalia, Thomas (separation of powers)
Dissent #1: Stevens, Ginsburg, Breyer (Equal Protection may eventually have merit, but for now it’s just speculation)
Dissent #2: Souter and Breyer, joined in part by Stevens and Ginsburg (federalism–it’s a matter of Florida law, not federal law)
Dissent #3: Ginsburg and Stevens, joined in part by Souter and Breyer (trashing the separation of powers concurrence)
Dissent #4: Breyer, joined in almost everything by Stevens and Ginsburg, and joined in part by Souter (pointing out that the recount could have gone forward under the majority’s analysis but they ordered it stopped anyway, trashing the separaton of powers concurrence, and arguing federalism makes this not a matter of state law).
This point appears not in Florida law but in the United States Constitution–that is, it is as true in any other state as in Florida. The Constitution (art. II, sec. 1) provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” Today, every state appoints its electors by popular vote, but historically the next most common method of appointing electors has been election by the state legislature, which was fairly common until the Jacksonian era.
The suggestion during the disputed count in Florida in 2000 was that the Florida Legislature (both houses of which were under Republican control) could simply pass a new law appointing the Republican electors–regardless of what the courts concluded about the outcome of the popular vote–which would override the earlier law providing for a popular vote. This suggestion may have been tested if the judicial process had resulted in the votes being awarded to the Democratic electors. Since the United States Supreme Court’s ruling in Bush v. Gore effectively produced the same result that the Legislature would presumably have reached, there was no need for getting the Legislature involved. Whether a state legislature can intervene in the appointment of Presidential electors by popular vote therefore remains untested.
The time limit on the recount was set by Florida state law, to be sure – but the function of that law was to ensure that the recount be completed by the time limit for non-challengeable certification of the slate of electors, which was set by Federal law. No big deal, Shodan, but it seemed a clarification worth making – in part because the Federal law time limit played a part in the ultimate equal protection decision.
I hope it won’t look like playing “junior moderator” if I add my thanks as OP to this – I was sincerely curious as to what the underlying principle was, and having a hard time digging it out of the extended and usually polemic discussion of the case.
And particular thanks to the people who focused on the OP and attempted to give me a 25-words-or-less summary of the majority’s principle. That’s what I was hoping to get out of it, and why I posted in GQ – to avoid the debate that always results from the raising the case a in GD thread.
I think you’re asking a question based on an incorrect assumption, namely that the decision was derived from constitutional principle and precedent. The key phrase in the decision that none of the justices were willing to put their names on, “Our consideration is limited to the present circumstances”, admits that it wasn’t.
If the principle of equal protection had been the real basis, it would have led to a full recount of the state under uniform standards, and that is precisely what the Florida Supreme Court was heading toward. Instead, equal protection was used as a rationalization for preventing it - no wonder the arguments are difficult for many to understand or to accept as having been made in good faith.
The Florida Constitution passed on the federally-delegated right to choose electors to its people, not the Legislature. The argument that the Legislature could have overridden the state constitution is false.
To clarify the equal-protection argument: Differing amounts of inequities clearly require differing amounts of corrective action. The ruling ignored the initial inequities, and declared that differing corrective actions were inequitable in themselves. Voters who already had a greater chance to have their ballots counted could not have their vote “diluted” by correcting the problem of those who had had a lesser chance to be counted, per that line of reasoning.
There are some provisions that refer to “the last preceding election in which presidential electors were chosen,” but nothing that affirmatively establishes a constitutional principle in favor of appointing the state’s electors by popular vote.
Second, a legislature’s right of directing the manner in which a state’s presidential electors are appointed derives from the United States Constitution, which trumps any state constitution: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding” (art. VI). Not even a state constitution can deprive a legislature of a right that the Federal Constitution explicitly confers. This principle was established during the Progressive movement, when some states passed laws providing that their ratification of a constitutional amendment–a right that the Federal Constitution reserves to the legislature–was not effective until confirmed by a popular referendum.
