On November 8, 2000, media outlets declared Governor George W. Bush, the Republican nominee for president, the winner of Florida’s twenty-five electoral votes. According to a machine tabulation, the margin was 1,784 votes—less than one-half of a percent of the total votes cast. Under Florida’s election code, a margin of less than one-half of a percent required an automatic machine recount.1 The machine recount once again showed Bush winning the race but by only a few hundred votes. The Democratic nominee, Vice President Al Gore, sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties in accordance with Florida’s election protest provisions.2 The Gore campaign believed the machines had failed to count thousands of ballots in these counties due to “undervotes”—a situation when the voter did not fully punch through the chad on the election ballot.
The Florida Supreme Court set a deadline of November 26 for local election canvassing boards to submit their results to Florida’s secretary of state. Thus, on November 26, before the manual recounts were completed, the Florida Elections Canvassing Commission certified the results in favor of Bush by a 537 vote margin. On November 27, Gore filed a complaint in Leon County Circuit Court but was denied relief. He then appealed to the First District Court of Appeals, which certified the case to the Florida Supreme Court. The Florida Supreme Court accepted jurisdiction. The court determined that Gore met the burden of proof necessary to show there were enough potential undervotes in Miami-Dade County to shift the result of the election in his favor. On December 8, the court ordered a hand recount of 9,000 uncounted ballots in Miami-Dade County. It also ordered the certification of 215 votes in Palm Beach County and 168 votes in Miami-Dade County that had already been tabulated as part of prior manual recounts. The Bush campaign appealed to the U.S. Supreme Court. The court granted certiorari on December 9 and stayed the order of the Florida Supreme Court. On December 12, the U.S. Supreme Court reversed the judgment of the Florida Supreme Court and ended the manual tabulation of votes.
The justices who joined the per curiam opinion pointed out the problems nationwide with the use of punch card balloting machines.3 They cited a statistic showing that approximately 2 percent of ballots cast for president do not register a vote. While the justices contended that this case “brought into focus a common, if heretofore unnoticed, phenomenon,”4 the truth is that state legislatures were well aware of this “phenomenon,” and that is why states like Florida instituted manual recount procedures in close elections. They knew the punch card balloting machines could potentially miss hundreds if not thousands of votes. While this may have been a revelation to the Supreme Court justices, it was not to the Florida Legislature.
The court’s per curiam opinion, written by the Conservative justices, was immediately controversial because it ignored the power of states to select their own electors. U.S. Const. art. II, § 1, says “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.” This clause grants state legislatures the power to select their electors without federal interference. Thus, it is surprising that only 3.9 percent of the per curiam opinion is devoted to discussing the power of states to select their electors. Moreover, there are only two lines referencing the precedent set in McPherson v. Blacker.5 In McPherson, the court wrote, “The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states.”6 Therefore, the court’s own precedent makes clear that this is a power reserved to the states.
The court relied primarily on the Equal Protection Clause for its decision, however, very little of the opinion is actually devoted to developing the equal protection argument. Table 2.1 shows that only 7 percent of the opinion focuses on equal protection, while another 3.1 percent is devoted to the “one person, one vote” principle. There was simply a lack of precedent for the court to follow. The majority was left to rely on cases more than thirty years old that centered on the weight of votes. In Harper v. Virginia Board of Elections (1966), the court held that a state may not “value one person’s vote over that of another,”7 and in Reynolds v. Sims (1964), it held that the right to vote is denied by the “dilution of the weight of the citizen’s vote.”8Gray v. Sanders (1963) involved a case where the votes of residents from rural counties were given greater weight than the votes of citizens from urban counties,9 and in Moore v. Ogilvie (1969), the influence of citizens in larger counties was diluted.10 None of these cases had to do with the methods for counting votes or a state’s attempt to discern the intent of a voter.
Table 2.1 Per Curiam Opinion, Bush v. Gore (2000)
|
Content |
Number of lines |
Percentage of opinion |
|
Reference to Florida Supreme Court’s opinion |
20 |
15.63 |
|
Difficulties regarding the counting of ballots |
19 |
14.84 |
|
Criticism of Florida Supreme Court’s opinion(w/o citation) |
18 |
14.06 |
|
Facts of the case |
10 |
7.81 |
|
Procedural history |
9 |
7.03 |
|
Equal protection arguments (w/o citation) |
9 |
7.03 |
|
State selection of electors |
5 |
3.91 |
|
Arguments for new ballot counting procedures(w/o citation) |
4 |
3.13 |
|
Arguments regarding lack of time for a recount(w/o citation) |
4 |
3.13 |
|
Precedent for “one person, one vote” (with citation) |
4 |
3.13 |
|
Miscellaneous arguments (w/o citation) |
4 |
3.13 |
|
Court’s ruling |
4 |
3.13 |
Notes: N = 128. This table presents data for content that appeared at least four times in the opinion.
Source: Table created by author based on data from Bush v. Gore, 531 U.S. 98 (2000).
Absent a clear pattern of discrimination against a particular individual or group, it is unclear why the Supreme Court felt it needed to involve itself in this case. The court’s overreach is highlighted by the amount of time spent discussing matters of Florida election law. The court spent 14.8 percent on the manual recount procedures, 15.6 percent referencing the Florida Supreme Court’s decision, and another 14 percent criticizing the Florida Supreme Court’s decision. Together, these sections amount to approximately 44 percent of the opinion. The court’s willingness to delve into Florida election law can hardly be called an example of judicial restraint.
Justices Breyer and Souter, who agreed with the majority’s equal protection argument, believed the case should have been remanded to the Florida Supreme Court to establish uniform procedures for the manual recount. The response from the Conservative justices was simply that time had run out. They pointed to the Florida Legislature’s desire to meet the December 12 “safe-harbor” deadline under 3 U.S.C. § 5.11 This section applied to situations where there was a conflicting set of electors in a contested election. The “safe-harbor” provision authorized Congress to recognize the set of electors certified by the State on December 12 (six days before the electors were scheduled to meet on December 18), otherwise, absent state certification, Congress had the leeway to choose which electors to count. The problem is that the Florida Supreme Court issued its recount order to the lower court on December 8, but on December 9, the Supreme Court issued a stay of that order. Thus, as the dissent pointed out, the court prevented the recounts from being completed by the December 12 “safe-harbor” deadline. More importantly, this was a matter for the Florida state courts to resolve. The Supreme Court did not have the authority to enforce the December 12 deadline.
The matter of the election deadlines essentially became the decisive factor in the case, and yet, only four lines (3.1 percent) of the opinion covered it. The perfunctory way the justices handled the deadlines suggests that it was not an issue they wanted to explore. Since the deadlines were a matter of election procedures, why didn’t the justices leave it to the State of Florida or the U.S. Congress to decide how to proceed? Instead, the justices halted the election.
Toward the end of the opinion, the justices stated, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”12 This line foreclosed the possibility that the opinion would have any precedential value. On the one hand, the justices were determined to stop the manual recount in Florida in order to protect voters’ equal protection rights, on the other hand, they were concerned about the precedent this decision would set. They knew it would open a “pandora’s box” of equal protection claims across the country. It might even lead to challenges against the constitutionality of the Electoral College system itself.
That line is not the only peculiar part of the opinion, though. At the very end, the justices added the following:
None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.13
These lines seem to be a not-so-subtle dig at Democratic presidential candidate Al Gore. The key phrases are “unsought responsibility” and “forced to confront.” These words belie the discretionary power the justices have to select their cases. They disingenuously portrayed themselves as reluctant participants thrust into the political sphere.
Underlying the tension of Bush v. Gore was the possibility that a manual recount of the 9,000 uncounted votes in Miami-Dade County would reveal Al Gore to be the winner of Florida’s electoral votes and the presidential election. The court interjected itself into a battle for political power and put its thumb on the scales for the Republican Party. This ad hoc decision was based on highly questionable legal justifications and limited to the present case. The justices were all too eager to stop the manual recount, even though it involved a political question and the interpretation of state election laws. The Bush v. Gore decision marked a starting point in an era of partisanship on the court and election interference.
In his dissent, Justice Stevens made the states’ rights argument. What is unusual about this case, is the way the justices flipped ideological perspectives. The Conservatives defended equal protection rights for voters, while the Liberals argued against federal court interference in the selection of state electors. Justice Stevens pointed to U.S. Const. article II, § 1, cl. 2, which gives states the sole responsibility of selecting their electors. As already mentioned above, this section reads:
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.
He added that the Supreme Court typically defers to the opinion of a state’s highest court when it comes to the interpretation of state law. Indeed, the Florida Supreme Court issued its decision based on a reasonable interpretation of Florida’s election laws. “As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes.”14
In regards to the equal protection claim, the dissent pointed out that different counties are permitted to utilize different balloting systems, with varying degrees of accuracy. While the dissent acknowledged that it was a matter of concern that Florida counties employed different methods for discerning “the intent of the voter,”15 they believed those concerns were alleviated by the fact that a single impartial magistrate was appointed to adjudicate all objections to votes counted as part of the recount process. Justice Stevens noted, “We must remember that the machinery of government would not work if it were not allowed a little play in the joints.”16 He did not consider the “intent of the voter” standard any less sufficient than the “beyond a reasonable doubt” standard used in jury trials.17
The most significant issue the dissent raised was the majority’s decision to halt the recount. The majority ended the recount without allowing the Florida Supreme Court to offer a solution to the equal protection problem. The court could have remanded the case to develop more uniform procedures for counting votes, but instead, opted to disenfranchise thousands of voters under the guise of adhering to election deadlines. As Justice Stevens pointed out, those deadlines were intended to be a guide for Congress to follow. They did not prevent a state from continuing to count votes in order to determine the legitimate winner. He cited an example from the 1960 presidential election, when Hawaii’s electors were not added to the final Congressional tally until January 4, 1961—two months after the election. The dissent believed the majority’s use of the deadlines was a transparent effort to halt the recount before the results changed in Gore’s favor. The Republican majority was more concerned with protecting Bush’s victory than counting thousands of lawful votes cast by citizens and ensuring the election outcome was correct.
NOTES
1. Fla. Stat. Ann., § 102.141(4) (Supp. 2001).
2. Id. at § 102.166.
3. Bush v. Gore, 531 U.S. 98 (2000).
4. Bush, 531 U.S. at 103.
5. McPherson v. Blacker, 146 U.S. 1 (1892).
6. McPherson, 146 U.S. at 34.
7. Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (1966).
8. Reynolds v. Sims, 377 U.S. 533, 555 (1964).
9. Gray v. Sanders, 372 U.S. 368, 379 (1963).
10. Moore v. Ogilvie, 394 U.S. 814, 819 (1969).
11. United States Code: Presidential Elections, 3 U.S.C. § 5.
12. Bush, 531 U.S. at 109.
13. Id. at 111.
14. Id. at 126.
15. Id.
16. Id.
17. Id. at 125.