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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Bush v Gore (US)

Rafael A Porrata-Doria Jr

Subject(s):
Electoral oversight — Scheduling of elections — Electoral systems — Right to participate in elections

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Background

1.  Bush v Gore is a decision of the Supreme Court of the United States which regulated the recounting of ballots in one state, Florida, in the presidential election of 2000 (presidential systems). That decision, which was reached by a vote of 5–4, effectively determined the outcome of that presidential election, and was very controversial.

2.  In order to understand Bush v Gore, it is first necessary to understand the mechanics of presidential elections in the United States and the underlying issues in the 2000 election that created the legal dispute that gave rise to the decision.

1.  The Electoral College

3.  The United States Constitution states that the President and Vice President are elected every four years by the Electoral College, whose members are chosen as the legislatures of the various states may determine (Constitution of the United States of America: 21 June 1788, Art. 2 Section 1 (US)). The Electoral College currently consists of 538 electors, one for each member of the House of Representatives and the Senate (and three for the District of Columbia; bicameralism). Each candidate running for President or Vice President has their own slate of electors. Most states, including Florida, have statutes that provide that the candidates who win the popular vote in the election will receive all of that state’s electors. A majority vote of 270 is required to elect the President and Vice President (US National Archives).

4.  A statute first passed in 1948 provides that electors may be appointed on either the date of the presidential election or on a subsequent date in such a manner as the legislature of such state may provide (3 US Code Section 1 et seq). One particular section, Section 5, notes that states may, by statutes enacted prior to Election Day, resolve controversies or contests concerning the appointment of electors. If such controversies are resolved and electors are appointed no later than six days prior to the meeting of the Electoral College (the first Monday after the second Wednesday in December), then such appointments will be conclusive. This is known as the statute’s ‘safe harbour’ provision. Disputes surrounding the appointment of electors which occur after that date are resolved by Congress (3 US Code Section 5).

5.  The original purpose of this system was to ensure that a handful of populous states did not dominate or control the election of the President. Accordingly, in order to be elected President, it is necessary for a candidate to win in enough states to obtain 270 electoral votes.

6.  Conversely, it is possible for a candidate to win the majority of the popular vote nationwide and still not be elected President. As we shall see below, that is precisely what happened in the 2000 election.

2.  The 2000 Election

7.  In the 2000 elections, Vice President Albert Gore (Democrat) faced Governor George W Bush (Republican). The election was held on 7 November 2000 and, at the end of the evening, Vice President Gore had won 255 electoral votes and Governor Bush had won 246. The results in three states, New Mexico (5 electoral votes), Oregon (7 electoral votes) and Florida (25 electoral votes) were too close to call. Although Vice President Gore had won the popular vote (50,999,897 to 50,456,002), he did not have sufficient electoral votes to be elected. Whoever won Florida, and its 25 electoral votes, would therefore be elected President.

3.  The Florida Disputes I

8.  In Florida, the preliminary results indicated that Governor Bush had won by a very narrow margin (2,909,135 versus 2,907,351 for Vice President Gore). Since the margin of error was less than .005%, the Florida Election Code required an automatic machine recount. This recount resulted in a smaller margin of victory for Governor Bush. The Gore campaign then petitioned for recounts in four counties. These petitions gave rise to a number of conflicting interpretations of the Florida Election Code. A state trial court held that a statutory limit of seven days after election for manual recounts was mandatory, but could be waived by the Secretary of State. The Secretary refused to do so, and the Gore campaign appealed, arguing that she had acted arbitrarily and had abused her discretion (Bush I 472–3).

9.  This appeal was eventually considered by the Florida Supreme Court. The Florida Supreme Court identified two legal issues: whether a discrepancy between a voting machine recount and a sample manual recount is an error in vote tabulation which requires a full manual recount, and how to resolve two conflicts in the Election Code relating to the timeframe for submitting manual recounts and the Secretary of State’s ability to disregard county manual recount results. It held that, under the plain text of the statute, the discrepancy was an error in vote tabulation sufficient to trigger a manual recount, and that the Secretary of State could reject manual recount results only under limited circumstances. Using its equitable powers, the Court imposed a deadline of 26 November for completion of all manual recounts (Bush I 472-3).

10.  The Bush campaign filed a petition for a writ of certiorari with the US Supreme Court, which agreed to hear the case.

4.  Bush v Gore I

11.  The US Supreme Court heard the case on an expedited basis and issued an opinion on 4 December 2000 (Bush I).

12.  In a unanimous opinion, the US Supreme Court first asserted a Federal Constitutional interest in the Florida Supreme Court’s interpretation of the Florida Election Code. It argued that, in a state statute involving the selection of presidential electors, the Florida legislature could act only under an exclusive grant of authority given it by Art. II Section 1 of the Federal Constitution. Neither the state constitution nor the state courts could circumscribe this exclusive legislative power (legislative powers). Specifically, the US Supreme Court was concerned that the Florida Supreme Court may have construed and interpreted the Florida Election Code without considering this issue. The Court also raised the issue that any interpretation of the Florida Election Code that might be inconsistent with the state legislature’s ability to take advantage of the ‘safe harbour’ provision discussed above might be a ‘change in the law’ prohibited by 3 US Code Section 5 (Bush I 474–5).

13.  The Court declined to review the Federal issues raised by the Bush campaign because it felt that there was ‘considerable uncertainty’ as to the grounds of the Florida Supreme Court decision. Accordingly, the Court vacated the Florida Supreme Court’s judgment and remanded the case for further proceedings (Bush I 474-5).

5.  The Florida Disputes II

14.  On 26 November the Florida Election Commission certified the election results and declared Governor Bush the winner. The next day, the Gore campaign commenced a contest procedure, on the grounds that the certified results included a number of illegal votes and failed to count a number of legal votes sufficient to change or place in doubt the certified results. The specific allegation was that, in certain counties, the voting machines had improperly registered no vote for President (‘under-votes’). The complaint was based on a number of specific incidents, including the rejection of 215 Gore votes in Palm Beach County and 168 votes in Miami Dade County; the rejection of 3300 votes in Palm Beach County, and the refusal to examine 9000 Miami-Dade ballots. The trial court dismissed the complaint, and the Gore campaign appealed to the Florida Supreme Court (Gore 1247–48).

15.  In its 8 December 2000 opinion, the Florida Supreme Court, after noting that the appeal involved an interpretation of newly amended sections of the Florida Election Code (Gore 1250), asserted that the Gore campaign had met its statutory burden of proof by demonstrating that there had been legal votes cast in the election that had not been counted and that the available data showed that the number of legal votes that would be recovered would change the election result (Gore 1255–6). Basing itself on the Florida Constitution, the Florida Supreme Court concluded that a legal vote was one where there was a clear indication of the voter’s intent and that it must do everything required by law to ensure that legal votes that have not been counted are included in the final tallies (Gore 1256). Accordingly, it ordered the inclusion of the Palm Beach and Miami-Dade Gore votes in the total returns and a manual recount of the 9000 votes in Miami-Dade County, as well as any other orders necessary to include any legal votes not counted state-wide (Gore 1262).

16.  Two justices dissented. One felt that the Gore campaign had failed to meet their burden of proof and that the selective recounting ordered by the majority was not available under the Florida Election Code (Gore 1262–1270). The second justice felt that the majority’s decision had no foundation in law and that its order for a partial recount was based on unknown or at best ambiguous standards. Moreover, he felt that the decision violated Art. II of the Federal Constitution (Gore 1270–73).

17.  The Bush campaign filed an emergency petition for a stay with the US Supreme Court which was immediately granted. The Court then agreed to hear the case again.

6.  Bush v Gore II

18.  The US Supreme Court on 12 December 2000, by a vote of 5–4, reversed the Florida Supreme Court’s decision. Several opinions were issued, including a per curiam majority opinion, a concurrent opinion, and four dissents.

(a)  The per curiam Opinion

19.  In the majority per curiam opinion, the US Supreme Court enunciated two questions for consideration. The first was whether the Florida Supreme Court established new standards for resolving presidential electoral contests in violation of Art. I of the Constitution. The second was whether the Florida Supreme Court’s order of a recount without any standards to be applied thereto was a violation of the Due Process and Equal Protection Clauses of the Federal Constitution. The majority’s response to both questions was affirmative (Bush II 529).

20.  The argument in support of its decision on the Art. I issue was that Art. I, Section II of the Constitution gave the Florida legislature, and not the Florida Supreme Court, the exclusive power to decide how presidential electors would be chosen in Florida. Therefore, an interpretation of the Florida Election Code in any manner contrary to the way the Florida Legislature wrote the statute interfered with this constitutional exclusive grant of power and was therefore unconstitutional under the Federal Constitution. This, the majority concluded, was exactly what the Florida Supreme Court had done (Bush II 530–31).

21.  The majority’s analysis of the second issue commenced with the statement that the Constitution’s Equal Protection Clause applies to, in addition to the right to vote, to the manner in which the vote is exercised. The state may not, by arbitrary or disparate treatment, value one person’s vote above that of another (Bush II 530–31). In other words, if a state counts illegal votes in an election, it is devaluing the value of the valid votes cast by all other citizens. In this particular case, the issue was whether the recount procedures ordered by the Florida Supreme Court were consistent with the state’s equal protection obligations. The majority felt that they did not. The problem they identified was that the standards used for accepting or rejecting contested ballots in the counties covered by the recount order varied from county to county and from recounting team to recounting team. In fact, at least one county changed its evaluation standards during the recount process. So, in order to conduct a recount that was consistent with its equal protection and due process obligations, Florida had to adopt adequate state-wide standards for determining what was a legal vote and practical procedures to implement these standards (Bush II 530–33). The problem, the majority concluded, was that this could not be done during the time period mandated by Florida law. Accordingly, no recount could be constitutionally held.

(b)  The Concurrence

22.  In a concurring opinion, Chief Justice Rehnquist and Justices Scalia and Thomas added an additional ground upon which they would have overturned the Florida Supreme Court opinion. In essence, they argued that the ‘safe harbour provision’ of 3 USC Section 5 created a federally mandated end date for any contest period and, in interpreting the Florida Election Code in a manner which extended that end date, the Florida Supreme Court had violated Federal law (Bush II 534–35).

(c)  The Breyer Dissent

23.  In his dissenting opinion, Justice Breyer responded to the majority’s assertion that the absence of uniform and specific standards to guide a recount amounted to a violation of equal protection and due process standards. While agreeing that basic principles of fairness would have counselled the adoption of uniform standards to address the issues raised by the recount, he felt that the appropriate remedy would have been for the Court to remand the case with the instructions that would have permitted the Florida Supreme Court to require the recounting of all previously undercounted votes in accordance with a single uniform standard (Bush II 550–1). Justice Breyer also felt that the issue of whether there was enough time to do this in accordance with the law was one for the state courts to determine. In making this argument, he also noted that, in an electoral system that allows individual counties to use different types of voting systems, voters already arrived at the polls with an unequal chance that their votes would be counted. He could not understand results coming from counties with different voting machine systems were any less fair than results coming from a court ordered recount (Bush II 552).

(d)  The Stevens Dissent

24.  In his dissenting opinion Justice Stevens first asserted that, when questions arose about the meaning of state laws, it was the Supreme Court’s settled practice to accept the opinions of the highest courts of that state as providing the final determination of such meaning. On rare occasions, either Federal statutes or the Constitution required judicial intervention. This was not the case here because this matter did not involve substantial Federal questions. In fact, neither Art. II of the Constitution nor 3 USC Section 5 gave Federal judges any special authority to substitute their views for those of the state judiciary in matters of state law (Bush II 539–40).

25.  Moreover, the Florida legislature’s decision to employ a unitary statute for all elections indicates that it wished the Florida Supreme Court to play the same role in presidential elections that it had historically played in resolving electoral disputes. Indeed, the Florida Supreme Court in its opinion did not make any substantive changes to the law. They were interpreting the Florida Election Code in accordance with long established precedent, which is what courts do (Bush II 539–40).

26.  Lastly, he concluded that the Bush campaign was incorrect in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the intent of the voter was to be determined in a recount rose to the level of a constitutional violation (Bush II 540).

(e)  The Souter Dissent

27.  In his dissent Justice Souter raised many of the same points raised in the Breyer, Ginsberg and Stevens dissents (Bush II 542–46).

28.  Justice Souter felt that the only issue before the Supreme Court with any merit was whether Florida’s manner of interpreting the marking on ballots to determine voters’ intent violated due process or equal protection. He felt, however, that this issue could have been disposed of by the Florida courts if the Supreme Court had not interrupted the recount then underway. Even if the issue had not been resolved at the state level, it could have been considered by Congress in an electoral vote dispute. The problem in Florida, he continued, was that there were a variety of voting mechanisms throughout the state, with various degrees of effectiveness. This variety of voting mechanisms (and the different methods of counting them) did not, however, violate the Equal Protection Clause of the Federal Constitution. What the US Supreme Court needed to do, Justice Souter concluded, was to remand the case back to the Florida Supreme Court with instructions to establish uniform standards for evaluating the different types of ballots that have prompted differing counting treatments. These standards should have then been applied within and among counties when passing on such identical ballots in any further recount (Bush II 545–46).

(f)  The Ginsburg Dissent

29.  Justice Ginsberg, in a separate dissent, agreed with Justices Stevens, Breyer and Souter in many points. She stressed that the Supreme Court more than occasionally has affirmed statutory and even constitutional interpretations with which it disagrees. Even in cases in which the proper application of Federal law may hinge on interpretations of state law, the Supreme Court has been ever mindful of the full measure of respect that it owes to the interpretations of state law by a state’s highest court. In deferring to state courts on matters of state law, the Supreme Court has appropriately recognized that it acts as an outsider lacking the exposure to local law which comes from sitting in that jurisdiction. Moreover, the Chief Justice’s willingness to reverse the Florida Supreme Court’s interpretation of Florida law in this case is in tension with the Court’s own precedent. The framers of the Constitution understood that, in a republican form of government (republicanism), the judiciary would construe the legislature’s enactments (Bush II 546–48).

B.  The Commentary

30.  Bush v Gore generated a blizzard of academic commentary. Liberal and conservative commentators disagreed sharply, with conservative commentators praising the decision and liberal commentators condemning it. One comment by Professor Rosen noted that judges and commentators went beyond mere disagreement, and impugned each other’s motives, accusing each other of allowing their legal judgment to be distorted by their partisan allegiances (Rosen 145).

31.  A typical favourable comment by Professor Lund asserts that the US Supreme Court, relying on well-established precedent, acted in a reasonable fashion to halt a recount which contained several built-in biases in Vice President Gore’s favour and which was being conducted in a clearly subjective, arbitrary and biased manner. This recount created a situation in which similar ballots were being treated differently and invalid ballots were counted along with valid ballots, diluting and debasing the valid votes cast for Governor Bush. This was a violation of the ‘one person, one vote’ principle, because each valid vote was weighed at less than one vote and violated the Federal Constitution’s Equal Protection Clause. Furthermore, the Florida Supreme Court, in relying on general principles, modified, disregarded and supplemented various parts of the Election Code adopted by the Florida Legislature. In other words, the Florida Supreme Court was out of control. As another commentator noted, at every step of the dispute, elected officials were given too little deference and judges were given too much (Lund 449–53).

32.  Negative commentary tended to be much more varied. One analysis by Professor Balkin started by questioning the US Supreme Court’s perceived argument that the Florida Legislature, and not the Florida Supreme Court, had plenary power to decide how presidential electors are chosen. Therefore, if the Florida Supreme Court interpreted Florida law other than in the manner prescribed by the legislature, even to avoid a conflict with the Florida Constitution, it acted in violation of the Florida Constitution. This argument has two problems: it assumes that one can divorce the Florida legislature from every other element of the legal system, including the courts and Constitution, and that one can clearly separate what the law means from what the courts say it means. Secondly, the Florida Election Code clearly delegated its interpretation to both executive officials and the judiciary. Since the Florida Election Code, including its protest and contest procedures, had been substantially revised in 1999, most of the issues considered were actually questions of first impression before the Florida Supreme Court (Balkin 1413–16). Since the text of the statute was not unambiguously clear, the Florida Supreme Court then proceeded to interpret it in the same fashion as it interpreted other statutes. Given previous jurisprudence emphasizing the importance of voter intent, one cannot really say that the Florida Supreme Court’s interpretation was unreasonable or significantly distorted the meaning of the statute. In effect, what the US Supreme Court did in this situation was to substitute its own interpretation of Florida election law for that of the Florida Supreme Court. This is problematic, since, as noted in Justice Ginsburg’s dissent, the US Supreme Court has a long tradition of deferring to state supreme courts’ interpretations of state law (Balkin 1419–25).

33.  Others have taken issue with the Court’s equal protection argument. Professor Balkin described the idea that the Constitution required absolute perfection and uniformity or standards as ‘novel, to put it mildly’ (Balkin 1426), especially since these principles seemed to apply only to judicially supervised state recounts, and not necessarily to other aspects of the electoral system.

34.  Professor Karlan has argued that the US Supreme Court has essentially created a new structural model of equal protection. In this new model, the Court deployed the Equal Protection Clause of the Federal Constitution not to protect the rights of an individual or a discrete group of individuals, particularly a group unable to protect itself through the operations of the political process. Instead, it sought to regulate the institutional arrangements within which politics is conducted. In other words, this model permits the Court to use the 14th Amendment to extend its power to adjudicate political controversies (Karlan 78–85).

35.  Yet another group of commentators felt that the Supreme Court should not have had intervened in this matter for one of two reasons. First, Professor Balkin argued that the US Supreme Court had a serious conflict of interest, since it was effectively deciding who would nominate future US Supreme Court justices at a time when it was strongly divided between conservatives and liberals (Balkin 1432). Second, Professors Steven Calabresi, Garrett and Issacharoff also argued that the dispute was clearly a political one which the political players (including Congress) could have resolved. In fact, this was a classical situation where, under the political question doctrine, the Supreme Court should not have intervened (Calabresi 138; Garrett 38, 53; Issacharoff 61, 63; justiciability)

36.  All in all, the negative commentary is much more convincing. One convincing argument is that the real reason for the decision in Bush v Gore was that the daily television spectacle of chaotic proceedings where individuals were trying to divine voter intent by holding individual ballot to the light, when the Presidency of the United States was at stake, convinced a majority of the justices that the 14th Amendment demanded something better. What that ‘better’ was something that they could not really agree on.

C.  The Aftermath

37.  In spite of the statement in the per curiam opinion in Bush v Gore that its holding was applicable only to the particular situation at issue, a number of predictions were made about the long-term effect of Bush v Gore. One prediction was that, because the case was so controversial and could not easily be rationalized with existing law, it would be forgotten. Others argued that the case would simply be fitted into existing doctrinal structures, while still others predicted that it would strongly affect equal protection jurisprudence (Balkin 1447; Calabresi 71; Karlan 781).

38.  A recent empirical study found some surprising results. On the one hand, the Supreme Court has, to this date, completely avoided any reliance on or citation to the case. It has not been cited in any fashion, whether in a majority opinion, a concurrence or a dissent. The Supreme Court seems to have treated it as not creating any precedent. On the other hand, however, the case has been cited 154 times in lower Federal courts and 111 times in state court opinions. The majority of these citations involve the issue of equal protection. The author of the study asserts that the context and language of the opinions presents a compelling argument that, as predicted by some commentators, the jurisprudence of equal protection has developed in particular ways in response to and because of Bush v Gore. The study also notes that a great concern about election administration and an enhanced use of litigation to resolve election dispute appear in many of these citations. Indeed, the author concludes that a greater cognition among the politically active about the potential of litigation in affecting elections have created an environment in which citations to Bush v Gore have flourished. The author of the study concludes that, in spite of the Supreme Court’s effort to limit its applicability, Bush v Gore will persevere, as it moves toward an established precedent of broad applicability in election litigation (Smith 33–46).

39.  In spite of the majority’s expressed intent, Bush v Gore has had an unexpected, and lasting effect on American election law.

Select Bibliography

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  • Calabresi, G, ‘In Partial (But Not Partisan) Praise of Principle’ in Ackerman, B, (ed.), Bush v Gore: The Question of Legitimacy (Yale UP 2002) 67.
  • Calabresi, SG, ‘A Political Question’ in Ackerman, B, (ed.), Bush v Gore: The Question of Legitimacy (Yale UP 2002) 129.
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  • McConnell, MW, ‘Two and a Half Cheers for Bush v Gore’ in Sunstein, CR, and Epstein, RA, (eds), The Vote: Bush, Gore and the Supreme Court (University of Chicago Press 2001).
  • Smith, CA, ‘The Cites that Counted: A Decade of Bush v Gore Jurisprudence’ in Alvarez, RM, and Grofman, B, (eds), Election Administration in the United States: The State of Reform after Bush v Gore (CUP 2014).
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