Bush v. Gore

US Supreme Court ruling on the constitutionality of the Florida recount after the 2000 presidential election

Date: Decided on December 12, 2000

While the 2000 presidential election between George W. Bush and Al Gore was a tight race across the country, it was closest in Florida. After a battle between the US Supreme Court and Florida’s judiciary and legislature, the court declared Bush the winner. This decision called into question the relative power of states and the federal government and revealed flaws in America’s election process.

In addition to Republican George W. Bush and Democrat Al Gore, the 2000 election featured a number of fringe candidates, including Ralph Nader of the Green Party and the Reform Party’s Patrick Buchanan. Only 55.6 percent of eligible Americans voted. At the end of Election Day on November 7, Gore won the popular vote, but the Electoral College, which elects the president by a vote of electors from each state, was another question. While both sides tallied their votes, it became clear that Florida’s twenty-five electoral votes would decide the election. Like most states, Florida awards all electoral votes to one candidate, according to the popular vote. While news stations named Gore and then Bush as winner, a difference of fewer than 1,800 votes ultimately referred the issue to Florida’s state constitution, which mandates a recount when the difference between candidates is less than 0.5 percent of votes cast.

Progression through the Courts

After a machine recount of votes and the inclusion of overseas ballots, the outcome in Florida was even less definitive. Citing a failure in ballot punch-card machines in Broward, Miami Dade, and Palm Beach counties, as well as mistakes in Volusia County, Gore’s legal team, led by former US secretary of state Warren Christopher, requested a manual recount. Heading up Bush’s legal team, James Baker, another former secretary of state, argued against the need for this recount. Critics accused Democrats of attempting to gain votes by only considering liberal counties, while Democrats defended the call to recount due to faulty voting machines. On November 21, the Florida Supreme Court approved the manual recount, setting a deadline of November 26.

Breaking with the Republican tradition of deference to states’ rights, the Bush team requested that the US Supreme Court review the recount issue, and the high court agreed. Republicans claimed that since there was no consistency in the manual recount process (recount protocol was determined by county), the recount violated the “equal protection” of voters under the 14th Amendment. They also contended that the state legislature, not the judiciary, was granted power to determine electors under the US Constitution’s Article II. While arguments continued, on November 26, Florida secretary of state Katherine Harris, who had chaired Bush’s Florida campaign, certified Bush as winner of Florida by 537 votes. At that time, manual recounts were still ongoing in Miami Dade and Palm Beach counties.

Arguments continued at the US Supreme Court, and the justices asked the Florida Supreme Court for an explanation of its actions in allowing a recount. On December 8, the Florida court responded by mandating a continued manual recount, focusing on voter intent. A day later, the US Supreme Court’s conservative justices overruled the Florida court’s decision and demanded that the recount stop. On December 12, the Supreme Court justices, by a vote of 5–4, confirmed that the manual recount did violate the equal protection of voters. On December 13, Gore conceded the election to Bush.

Voter Intent

Discerning voter intent might be viewed as the purpose of elections. Yet confusion in Florida revealed that intent is not always straightforward, and that not every vote counts. Questions of intent surfaced as machine recounts commenced. Some counties using punch-card ballots—such as Palm Beach, Broward, and Miami-Dade—showed high numbers of unusable ballots. Voters had either overvoted, by punching holes for multiple candidates, or undervoted, by not fully punching a hole for any candidate. Statewide, Florida recorded over 61,000 undervotes and 113,000 overvotes. In order to consider these votes, the Florida courts ruled in favor of a manual recount, including votes where the intent was evident.

Manual recounts could also discern voter intent in Optical Character Recognition (OCR) ballots, which were used in Volusia County. These ballots function like standardized test bubble sheets. If a voter uses the wrong type of pencil or pen, or if the voter marks an “x” instead of filling in a bubble, the vote is invalidated by machine recounts. Manual recounts could decipher these mistakes and include the vote.

The Florida recount became famously associated with the state of its chads. Chads, the pieces of a punch-card ballot meant to pop off as voters make their selections, can remain attached to ballots, invalidating the vote. Whether machines are old, overused, or merely stuck, a ballot’s chad can be called “hanging,” “dimpled,” or “pregnant” to refer to its relative detachment. Evaluating the chads in Florida was key to determining voter intent.

Intent was also confused by new ballot formats. Typically, Florida ballots grouped all candidates for a position on one page. But as new rules allowed additional candidates, counties were faced with the problem of accommodation. To retain the single-page format, they would be forced to shrink the font size. To retain the font size, important for elderly Floridians, candidates would spill out onto two pages. This two-page format, termed the “butterfly ballot,” led to widespread confusion. Many voters voted on both pages—causing invalidation by overvoting—or voted for Buchanan when they intended to vote for Gore, due to confusion regarding name placement. Even Buchanan acknowledged the faulty votes in counties where he did surprisingly well among populations known for voting Democrat and in places where he had not campaigned.

Partisan Politics

Bush v. Gore revealed the divisive potential of elections. Every level of argument regarding recounts was motivated by political bias. In her rush to certify Bush, Katherine Harris acted as both a public servant and as a vital part of Bush’s Florida campaign. In demanding a manual recount, Gore was both a man fighting for the recognition of every vote as well as a candidate seeking uncounted votes that might win him the presidency. Even in the Supreme Court, the justices showed themselves to be interpreters of law as well as activists. Dissenting Justice John Paul Stevens viewed the court’s decision to halt the recount as a mark of partisanship and a degradation of law, stating, “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

By ending the recount, the Supreme Court effectively chose the 43rd president. In the eyes of Gore supporters, George W. Bush, who had campaigned as a unifier, ascended to the presidency on the back of partisanship.

Impact

Largely unmentioned by scholars, critics, or the Supreme Court, Bush v. Gore has inspired little action. While another recount of votes was attempted in 2001, many ballots had disappeared. The results were deemed inconclusive, although a recount based on voter intent indicated a win for Gore. To address election reform, Congress passed and Bush signed the Help America Vote Act in 2002, requiring states to upgrade their voting systems, but the law’s effectiveness is unclear.

While the Bush v. Gore case exposed legal discrepancies in Florida’s recount process regarding when and how votes would be recounted, it also implied the need for a national protocol. To this end, some states have passed voter ID laws, requiring identification to vote, though some claim these depress minority voter turnout. The case questioned the modern utility of the Electoral College and winner-take-all system for electoral votes that most states use. Activists pushed for change in these areas, though unsuccessfully. Beyond America’s electoral system, the way the case was argued and decided revealed deep biases inherent in the administration of elections, partisanship that privileged candidates over fixing a flawed system, and vast procedural disparities between states and counties. Deciding elections in court, instead of by the people, was seen by many as undercutting the essence of democracy.

Bibliography

Boies, David. Courting Justice. New York: Hyperion, 2004. Print.

Keyssar, Alexander. The Right to Vote: The Contested History of Democracy in the United States. Rev. ed. New York: Basic, 2009. Print.

Patterson, James T. Restless Giant: The United States from Watergate to Bush v. Gore. New York: Oxford UP, 2005. Print.

Poundstone, William, Gaming the Vote: Why Elections Aren’t Fair (and What We Can Do about It). New York: Farrar, 2008. Print.

Zelden, Charles L. Bush v. Gore: Exposing the Hidden Crisis in American Democracy. Lawrence: UP of Kansas, 2008. Print.