Bush v. Gore
Encyclopedia
Bush v. Gore, , is the landmark United States Supreme Court
decision on December 12, 2000, that effectively resolved the 2000 presidential election
in favor of George W. Bush
. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board
, , and only three days earlier, had preliminarily halted the recount
that was occurring in Florida
.
In a per curiam decision
, the Court ruled that the Florida Supreme Court
's method for recounting ballots was a violation of the Equal Protection Clause
of the Fourteenth Amendment
. The Court also ruled that no alternative method could be established within the time limits set by the State of Florida. Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature
.
The decision allowed Florida Secretary of State
Katherine Harris
's previous certification of George W. Bush
as the winner of Florida's 25 electoral votes to stand. Florida's votes gave Bush, the Republican
candidate, 271 electoral votes, one more than the required 270 electoral votes to win the Electoral College and defeat Democratic
candidate Al Gore
, who received 266 electoral votes (a District of Columbia
elector abstained).
of the state's popular vote. Any candidate who then receives an absolute majority of all electoral votes nationally (270 since 1963) wins the Presidential or Vice Presidential election.
On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote
in Florida, a margin of victory of 1,784 votes. The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated automatic machine recount occurred. On November 10, with the machine recount finished in all but one county, Bush's margin of victory had decreased to 327. According to author Jeffrey Toobin
, later analysis showed that a total of 18 counties—accounting for a quarter of all votes cast in Florida—did not carry out the legally mandated machine recount, but "[n]o one from the Gore campaign ever challenged" the notion that the machine recount had been completed. Florida's election laws allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia
, Palm Beach
, Broward
and Miami-Dade
, which are counties that traditionally vote Democratic and would be expected to garner more votes for Gore. Gore did not, however, request any recounts in counties that traditionally vote Republican. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State
within seven days of the election, and several of the counties conducting manual recounts did not believe they could meet this deadline. On November 14, the statutory deadline, the Florida Circuit Court ruled that the seven-day deadline was mandatory, but that the counties could amend their returns at a later date. The court also ruled that the Secretary, after "considering all attendant facts and circumstances," had discretion to include any late amended returns in the statewide certification. Prior to the 5 p.m. deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 p.m. on November 14, Florida Secretary of State Katherine Harris
announced that she was in receipt of the certified returns from all 67 counties, while Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.
Harris issued a set of criteria by which she would determine whether to allow late filings, and she required any county seeking to make a late filing to submit to her, by 2 p.m. the following day, a written statement of the facts and circumstances justifying the late filing. Four counties submitted statements, and after reviewing the submissions Harris determined that none justified an extension of the filing deadline. She further announced that after she received the certified returns of the overseas absentee ballots from each county, she would certify the results of the presidential election on Sunday, November 26, 2000. On that date, she certified Bush the winner and litigation ensued.
, by a 4-3 vote, ordered a statewide manual recount. On December 9, the U.S. Supreme Court voted 5-4 to stay
the Florida recount, because according to Justice Scalia:
The dissenters opined: "Counting every legally cast vote cannot constitute irreparable harm... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." The four dissenting justices argued that stopping the recount was an "unwise" violation of "three venerable rules of judicial restraint", namely respecting the opinions of state supreme courts, cautiously exercising jurisdiction when "another branch of the Federal Government" has a large measure of responsibility to resolve the issue, and avoiding making peremptory conclusions on federal constitutional law prior to a full presentation on the issue.
in Bush v. Gore occurred on December 11. Theodore Olson
, a Washington, D.C.
lawyer and future Solicitor General
, delivered Bush's oral argument and New York
lawyer David Boies
argued for Gore.
During the brief period when the U.S. Supreme Court was deliberating Bush v. Gore, the Florida Supreme Court provided clarifications that the U.S. Supreme Court had requested on December 4 in the case of Bush v. Palm Beach County Canvassing Board, . Because of the extraordinary nature and urgency of the case, the U.S. Supreme Court issued its opinion in Bush v. Gore on December 12, less than a day after hearing oral argument.
of the Fourteenth Amendment
, on which the decision in Bush v. Gore was based, states:
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision on December 12, 2000, that effectively resolved the 2000 presidential election
United States presidential election, 2000
The United States presidential election of 2000 was a contest between Republican candidate George W. Bush, then-governor of Texas and son of former president George H. W. Bush , and Democratic candidate Al Gore, then-Vice President....
in favor of George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
. Only eight days earlier, the United States Supreme Court had unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board
Bush v. Palm Beach County Canvassing Board
Bush v. Palm Beach County Canvassing Board, , was a United States Supreme Court decision involving Florida voters during the 2000 presidential election. In this case, the U.S. Supreme Court requested clarification from the Florida Supreme Court regarding a decision it had made. Shortly after the...
, , and only three days earlier, had preliminarily halted the recount
Florida election recount
The Florida election recount of 2000 was a period of vote re-counting that occurred following the unclear results of the 2000 United States presidential election between George W. Bush and Al Gore, specifically the Florida results. The election was ultimately settled in favor of George W. Bush when...
that was occurring in Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
.
In a per curiam decision
Per curiam decision
In law, a per curiam decision is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively and anonymously...
, the Court ruled that the Florida Supreme Court
Florida Supreme Court
The Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...
's method for recounting ballots was a violation of the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. The Court also ruled that no alternative method could be established within the time limits set by the State of Florida. Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature
Florida Legislature
The Florida State Legislature is the term often used to refer to the two houses that act as the state legislature of the U.S. state of Florida. The Florida Constitution states that "The legislative power of the state shall be vested in a legislature of the State of Florida," composed of a Senate...
.
The decision allowed Florida Secretary of State
Secretary of State of Florida
The Secretary of State of Florida is a constitutional officer of the state government of the U.S. state of Florida, established by the original 1838 state constitution....
Katherine Harris
Katherine Harris
Katherine Harris is an American Republican politician, former Secretary of State of Florida, and former member of the United States House of Representatives. Harris won the 2002 election to represent Florida's 13th congressional district in the U.S. House of Representatives. She held that post...
's previous certification of George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
as the winner of Florida's 25 electoral votes to stand. Florida's votes gave Bush, the Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
candidate, 271 electoral votes, one more than the required 270 electoral votes to win the Electoral College and defeat Democratic
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
candidate Al Gore
Al Gore
Albert Arnold "Al" Gore, Jr. served as the 45th Vice President of the United States , under President Bill Clinton. He was the Democratic Party's nominee for President in the 2000 U.S. presidential election....
, who received 266 electoral votes (a District of Columbia
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
elector abstained).
Background
The 2000 Presidential election took place on November 7, 2000. Under the Electoral College system each state conducts its own popular election for President and Vice President. However, the voters are actually voting for a slate of "electors", each of whom pledged to vote for a particular candidate for each office, in the Electoral College. Article II, § 1, cl. 2 of the U.S. Constitution provides that each state legislature decides how electors are chosen. Early in U.S. history, most state legislatures directly appointed the slate of electors for each of their respective states. Today, state legislatures have enacted laws to provide for the selection of electors by popular vote within each state. While laws vary, most states, including Florida, award all electoral votes to the candidate for either office who receives a pluralityPlurality voting system
The plurality voting system is a single-winner voting system often used to elect executive officers or to elect members of a legislative assembly which is based on single-member constituencies...
of the state's popular vote. Any candidate who then receives an absolute majority of all electoral votes nationally (270 since 1963) wins the Presidential or Vice Presidential election.
On November 8, 2000, the Florida Division of Elections reported that Bush won with 48.8% of the vote
United States presidential election in Florida, 2000
The 2000 United States presidential election in Florida took place on November 7, 2000 as it did in the other 49 states and D.C., which was part of the 2000 United States presidential election...
in Florida, a margin of victory of 1,784 votes. The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated automatic machine recount occurred. On November 10, with the machine recount finished in all but one county, Bush's margin of victory had decreased to 327. According to author Jeffrey Toobin
Jeffrey Toobin
Jeffrey Ross Toobin is an American lawyer, author, and legal analyst for CNN and The New Yorker.-Early life and education:...
, later analysis showed that a total of 18 counties—accounting for a quarter of all votes cast in Florida—did not carry out the legally mandated machine recount, but "[n]o one from the Gore campaign ever challenged" the notion that the machine recount had been completed. Florida's election laws allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia
Volusia County, Florida
Volusia County is a county located in the state of Florida. The U.S. Census Bureau 2010 official county's population was 494,593 . Its county seat is DeLand, and its most populous city is currently Deltona....
, Palm Beach
Palm Beach County, Florida
Palm Beach County is the largest county in the state of Florida in total area, and third in population. As of 2010, the county's estimated population was 1,320,134, making it the twenty-eighth most populous in the United States...
, Broward
Broward County, Florida
-2000 Census:As of the census of 2000, there were 1,623,018 people, 654,445 households, and 411,645 families residing in the county. The population density was 1,346 people per square mile . There were 741,043 housing units at an average density of 615 per square mile...
and Miami-Dade
Miami-Dade County, Florida
Miami-Dade County is a county located in the southeastern part of the state of Florida. As of 2010 U.S. Census, the county had a population of 2,496,435, making it the most populous county in Florida and the eighth-most populous county in the United States...
, which are counties that traditionally vote Democratic and would be expected to garner more votes for Gore. Gore did not, however, request any recounts in counties that traditionally vote Republican. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State
Secretary of State of Florida
The Secretary of State of Florida is a constitutional officer of the state government of the U.S. state of Florida, established by the original 1838 state constitution....
within seven days of the election, and several of the counties conducting manual recounts did not believe they could meet this deadline. On November 14, the statutory deadline, the Florida Circuit Court ruled that the seven-day deadline was mandatory, but that the counties could amend their returns at a later date. The court also ruled that the Secretary, after "considering all attendant facts and circumstances," had discretion to include any late amended returns in the statewide certification. Prior to the 5 p.m. deadline on November 14, Volusia County completed its manual recount and certified its results. At 5 p.m. on November 14, Florida Secretary of State Katherine Harris
Katherine Harris
Katherine Harris is an American Republican politician, former Secretary of State of Florida, and former member of the United States House of Representatives. Harris won the 2002 election to represent Florida's 13th congressional district in the U.S. House of Representatives. She held that post...
announced that she was in receipt of the certified returns from all 67 counties, while Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.
Harris issued a set of criteria by which she would determine whether to allow late filings, and she required any county seeking to make a late filing to submit to her, by 2 p.m. the following day, a written statement of the facts and circumstances justifying the late filing. Four counties submitted statements, and after reviewing the submissions Harris determined that none justified an extension of the filing deadline. She further announced that after she received the certified returns of the overseas absentee ballots from each county, she would certify the results of the presidential election on Sunday, November 26, 2000. On that date, she certified Bush the winner and litigation ensued.
Stay of the Florida recount
By December 8, 2000, there had been multiple court decisions regarding the presidential election in Florida and on that date the Florida Supreme CourtFlorida Supreme Court
The Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...
, by a 4-3 vote, ordered a statewide manual recount. On December 9, the U.S. Supreme Court voted 5-4 to stay
Stay of execution
A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word "execution" does not necessarily mean the death penalty; it refers to the imposition of whatever judgment is being stayed....
the Florida recount, because according to Justice Scalia:
Rapid developments
The oral argumentOral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
in Bush v. Gore occurred on December 11. Theodore Olson
Theodore Olson
Theodore Bevry Olson is a former United States Solicitor General, serving from June 2001 to July 2004 under President George W. Bush.- Early life :...
, a Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
lawyer and future Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
, delivered Bush's oral argument and New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
lawyer David Boies
David Boies
David Boies is an American lawyer and chairman of the law firm Boies, Schiller & Flexner. He has been involved in various high-profile cases in the United States.-Early life and education:...
argued for Gore.
During the brief period when the U.S. Supreme Court was deliberating Bush v. Gore, the Florida Supreme Court provided clarifications that the U.S. Supreme Court had requested on December 4 in the case of Bush v. Palm Beach County Canvassing Board, . Because of the extraordinary nature and urgency of the case, the U.S. Supreme Court issued its opinion in Bush v. Gore on December 12, less than a day after hearing oral argument.
Relevant law
The Equal Protection ClauseEqual Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
of the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, on which the decision in Bush v. Gore was based, states: