In Bush v. Gore 2000, what remedy did the 7-2 Supreme Court Decision offer

I have been reviewing the Bush v. Gore Supreme court case. After lots of research, the Wikipedia article seems to be a fair summary with good links.

In any case, the Supreme Court had two decisions before it. One decision seems to have been, was whether a total recount of Florida votes would create a valid decision. That was decided 7-2 – that the recount would not be valid, as it would violate equal protection, each county having a different standard as to how to count ballots that the machine couldn’t count.

The second decision was to stop counting at all, that was 5-4. The reasoning there seems to have been that if a final count did not support a Bush victory, that the presidency would be undermined.

From my reading of this, and I hope I have it right, the decision to make Bush president (i.e., that a recount would not be valid) was 7-2, not 5-4; the 5-4 decision was to stop the recount entirely.

I am really not interested in a debate, but my experience here is that this question will probably become one. I hope there is an at least relatively impartial legal expert out there who can verify or explain what the 7-2 decision was about, and what remedy it offered, if any. It seems to be it offered no remedy other than to let the recount continue, but that it would not be valid, and that the original certification that made Bush president in 04 would stand.

Could we not make this into a referendum on Bush? I am interested in the legal decision.

I was not under the impression that the Supreme Court had to suggest a remedy of any sort, but merely to rule on the legality (or lack thereof) of the issue. Suggest a solution? Why, that’s judicial activism! :wink:

As for the “equal protection” issue, I’ll just quote from A Layman’s Guide to the Supreme Court Decision in Bush v. Gore:

Non-lawyer here: why is a “remedy” important for the 7-2 decision? Or for any decision?

Here is the actual text of the decision if you wish to read it for yourself.

The basic issue was that the recount was being done in a fairly blatant unconstitutional manner. The 14th amendment says that States must give all citizens equal protection under the law. In other words, a State can not treat a person or class differently without a rational basis to do so. In the case of the recount the undervote ballots, those with an incomplete mark for a vote, were being recounted while the overvote, those with multiple marks for a vote, were not. The recount was providing a remedy to the citizens that mistakenly undervoted that was not provided to those that overvoted. Since there is no rational basis to do so the recount was violating equal protection of the citizens that overvoted.

The other issue was that there was no standard for counting the undervotes. In some counties 3 times as many ballots were being counted than others. Such a significant difference without a valid reason to do so violated equal protection also.

Those two problems would have taken a significant amount of time to resolve and Florida law required contested elections to be settled by December 12th. Since it was impossible to conduct the recount in a consitutional manner and consistant with Florida law (the case was decided on Dec. 12th.) the recount was stopped.

You are woefully mistaken. Every case the federal courts decide includes a remedy. That’s what the “Cases and Controversies” requirement mandates.

Granted, of course, that the nature of the remedy may by its scope become judicial activism.

Treis – you have grasped my question, thank you.

Can you explain to me the difference between the 7-2 decision and the 5-4 decision – what did each decide?

I had been under the impression that a sharply divided court (5-4) made Bush president, but if the 7-2 decision was the one that said a total Florida recount would be invalid, was it not that decision that made Bush president?

If not (I could me mistaken here), if the 7-2 decision did say the recount would be invalid, what did it say should be done? Was its remedy to go back to the election certified by Harris, or something else.

I am a bit embarassed to say, that I have read both decisions, and it is not exactly clear to me which one made Bush president.

As I understand it, the first 7-2 decision said the recount was not constitutional as it was being conducted. In theory, this left open the possibility that the recount might be conducted in a different manner that might be constitutional. The second 5-4 decision said that no recount could be conducted in a constitutional manner within the time that existed.

That “Layman’s Guide to the Supreme Court Decision in Bush v. Gore” looks quite biased. As if we don’t already have enough biased reporting on the issue.

The Supreme Court was in essence stuck between a rock and a hard place. The recount was unconstitutional and the obvious remedy for that is to conduct it in a constitutional manner. Unfortunately there was a Florida law that said that a contested election must be decided by December 12th. Seeing as how the case was ruled on December 12th an acceptable recount could not have been completed in accordance with Florida law.

7 Justices agreed that the recount was unconstitutional but differed on what to do about it. Justice Breyer suggested remanding the Florida’s Supreme Court decision for an order to complete the recount by December 18th. In other words, they would have told the Florida Supreme Court to order a recount that would remedy the problems that rendered the first recount unconstitutional. This is where the split between the 5 and the other 2 in the 7 Justice majority occured. The majority ruled that Justice Breyer’s suggestion would violate Florida statute and thus would not be considered an appropiate action by the Florida Supreme court.

Basically 7 agreed that the recount was unconstitutional and 5 agreed that it must be stopped. The two that dissented out of the 7 wanted to extend the Florida deadline and complete the recount in a constitutional manner.

Sorry, I missed a few questions.

The 7-2 decision said that the recount that was/had been done was unconstitutional. The 5-4 decision said that no recount could legally be completed. Neither decision made Bush president, that phrase was coined by Gore supporters as a sour grapes phrase to show that Bush didn’t win/Bush stole the election/Gore was robbed.

The suggestion was (and I am not sure how many Justices of the 4 agreed with it) to extend the Florida deadline and conduct the recount constitutionally.

Unless I am completely missing something its not accurate to say that there were two decisions. Bush vs. Gore resulted in one decision, the recount was unconstitutional and the recount must be stopped. The 7-2 part stems from the disagreement on how to proceed after finding the recount unconstitutional.

OK, I am pretty ignorant about legal matters on this level, but this paragraph struck me:

If that were the case, could the SCOTUS have entertained the idea that Florida’s December 12th statute itself might be unconstitutional, since it effectively precluded an acceptable recount in this very important instance? Sorry if this is an dumb question.

Can’t see a way they would rule that way. The constitution says:

Its certainly reasonable to have a deadline for contested elections to be resolved and within a Sates’ power to do so.

Then perhaps you could point out what it was in this case. You know, like, answer the OP, maybe?

Is it also reasonable to footdrag and shop for injunctions from favorable courts until the deadline has run out?

Not at all. They were not *required * to hear the case at all. The lower federal courts refused to, recognizing Florida’s jurisdiction in the federalist, nonactivist manner that Republicans normally say they favor.
The equal-protection argument in the decision was reversed. Different people had different likelihoods of getting their votes counted in the first place, obviously a violation, but that was not discussed except by the Justices who said there was a (nonspecific) problem. The amount of correction needed to eliminate the EP violation had to vary proportionately, of course, but that was what the 5 ruled was *itself * an EP violation, not a means to enforce *compliance * with EP. It was just like a Jim Crow court ruling that giving blacks equal voting rights would treat them differently than whites and would therefore be a violation of EP in itself.

Thanks Treis and others for non-polemical answers and close readings (as to the others, that’s why I thought it best to post this in “great debates.”

I think I understand: The Supreme Court agreed, 7-2, that the recount ordered by the Florida Supreme Court, as it was conceived, was unconstitutional. To be honest, this is new to me. I had thought a that decision was the 5-4 decision.

Of those who voted that the Florica S.C. decision was unconstitutional, two of those, along with the two dissents, wanted to send the case back to Florida, for them to come up with a new standard for recounting, right?

The 5-4 vote was whether there was enough time, on December 11 when the case heard, to have a newly conceived recount done by December 12, which was the date set by the Florida constitution. Do I have this right?


To be honest I am not entirely sure what exactly each Justice felt about the issue at hand. The majority decision claimed that 7 justices agreed that there were constitutional problems with the recount but only 5 joined the majority. Each Justice wrote a dissent and agreed to the other Justices in a hodge podge fashion. Reading them it doesn’t seem that 2 of the 4 would have overturned the Florida decision but the majority decision made it seem that they would.

Not quite, the ruling was made on December 12th (rather late in the night I believe). The deadline was actually a Federal law:

Basically saying that the electors should be determined 6 days before the meeting of electors. After that deadline it is in the hands of Congress on how to proceed in regards to which electors to use. Apparently Hawaii sent its electors late once and Congress chose to count them:

However, the Florida Supreme Court ruled that the Florida Legislature intended to meet that deadline and according to the majority that meant the Florida Supreme Court could not extend the deadline.

Bush v. Gore FAQ:

Elvis: I think you are factually incorrect on the issue of optical scanners, as well as most of your other points.

see here:

but we stray: my original post had to do with what the exact difference was between the 7-2 vote and the 5-4 vote. As far as I can tell, 7 justices determined that the recount conceived by the Florida Supreme court had constitutional problems. I believe this to be significant.

What I don’t quite understand is what remedy the two justices who said the Florida recount would be unconstitutional were in favor of. The five who voted to stop the recount (including the famous moderate O’Conner) seemed to favor the results that were certified on Nov 26 as the default remedy.

What remedy were the four in the minority advocating? A newly conceived recount? That is my specific question, if you care to address it.

The two Justices of the 7 that agreed on the equal protection claim would have remanded the case to the Florida Supreme Court for action in accordance with the ruling.

Justice Souter did not feel that the Court should have reviewed the case at all but did agree a possible constitutional issue could have arose but felt that if the Florida Supreme Court was allowed to conduct the recount they would have eliminated those issues.

Justice Breyer also felt that the Court should not have taken the case:

but it seems that Justice Breyer was in agreement at least on one count of the Equal protection claim:

His remedy would have been to remand the case back to the Florida Supreme Court and let them determine whether there was enough time to do a constitutionally acceptable recount.

The other two Justices felt that there were no substantial Equal Protection issues in the case. Justice Stevens felt that the Florida Supreme Court acted within its power and there were no substantial constitutional issues:

I would surmise that he would uphold whatever the Florida Supreme Court decided in regards to the election. He was, ah shall we say, disappointed in the Majority’s ruling in the case:

Justice Ginsberg agreed with Justice Stevens that there were no substantial Equal Protection claims. I would guess that she would have also upheld the Florida Supreme Court’s ruling: