Bush v. Gore
531 U.S. 98 (2000)

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OCTOBER TERM, 2000

Syllabus

BUSH ET AL. v. GORE ET AL.

CERTIORARI TO THE SUPREME COURT OF FLORIDA

No. 00-949. Argued December 11, 2000-Decided December 12,2000

On December 8, 2000, the Florida Supreme Court ordered, inter alia, that manual recounts of ballots for the recent Presidential election were required in all Florida counties where so-called "undervotes" had not been subject to manual tabulation, and that the manual recounts should begin at once. Noting the closeness of the election, the court explained that, on the record before it, there could be no question that there were uncounted "legal votes"-i. e., those in which there was a clear indication of the voter's intent-sufficient to place the results of the election in doubt. Petitioners, the Republican candidates for President and Vice President who had been certified as the winners in Florida, filed an emergency application for a stay of this mandate. On December 9, this Court granted the stay application, treated it as a petition for a writ of certiorari, and granted certiorari.

Held: Because it is evident that any recount seeking to meet 3 U. S. C. § 5's December 12 "safe-harbor" date would be unconstitutional under the Equal Protection Clause, the Florida Supreme Court's judgment ordering manual recounts is reversed. The Clause's requirements apply to the manner in which the voting franchise is exercised. Having once granted the right to vote on equal terms, Florida may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665. The recount mechanisms implemented in response to the state court's decision do not satisfy the minimum requirement for nonarbitrary treatment of voters. The record shows that the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another. In addition, the recounts in three counties were not limited to so-called undervotes but extended to all of the ballots. Furthermore, the actual process by which the votes were to be counted raises further concerns because the court's order did not specify who would recount the ballots. Where, as here, a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. The State has not shown that its procedures include the necessary safeguards. Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance


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with the requirements of equal protection and due process without substantial additional work. The court below has said that the legislature intended the State's electors to participate fully in the federal electoral process, as provided in 3 U. S. C. § 5, which requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is here, but there is no recount procedure in place under the state court's order that comports with minimal constitutional standards.

772 So. 2d 1243, reversed and remanded.

Theodore B. Olson argued the cause for petitioners. With him on the brief were Douglas R. Cox, Thomas G. Hungar, Benjamin L. Ginsberg, Michael A. Carvin, Barry Richard, Miguel A. Estrada, George J. Terwilliger III, Timothy E. Flanigan, William K. Kelley, John F. Manning, and Bradford R. Clark. Joseph P. Klock, Jr., argued the cause for Katherine Harris et al., respondents under this Court's Rule 12.6 in support of petitioners. With him on the brief were John W Little III, Alvin F. Lindsay III, Ricardo M. Martinez-Cid, and Bill L. Bryant, Jr. Briefs in support of petitioners were filed by William Kemper Jennings for Glenda Carr et al.; by Robert A. Destro for Stephen Cruce et al.; and by George S. LeMieux and Frederick J. Springer for John E. Thrasher, all respondents under this Court's Rule 12.6.

David Boies argued the cause for respondents Gore et al.

With him on the brief were Laurence H. Tribe, Andrew J. Pincus, Thomas C. Goldstein, Jonathan S. Massey, Kendall Coffey, and Peter J. Rubin. *

*Briefs of amici curiae urging reversal were filed for the State of Alabama by Bill Pryor, Attorney General, and Charles B. Campbell, Scott L. Rouse, and A. Vernon Barnett TV; Assistant Attorneys General; for the Florida House of Representatives et al. by Charles Fried, Einer Elhauge, and Roger J. Magnuson; for William H. Haynes et al. by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., David A. Cortman, Griffin B. Bell, Paul D. Clement, and Jeffrey S. Bucholtz.

Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice at New York University School of Law by Burt Neuborne; and for Robert A. Butterworth, Attorney General of Florida, by


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Full Text of Opinion

Primary Holding
Despite violating the Fourteenth Amendment by using disparate vote-counting procedures in different counties, Florida did not need to complete a recount in the 2000 presidential election because it could not be accomplished in a constitutionally valid way within the time limit set by federal law for resolving these controversies.
Facts
In the 2000 election between Republican candidate George W. Bush and Democrat candidate Al Gore, Florida reported that Bush had won the state by 1,784 votes. (All of the state's electors are assigned to the winning candidate.) Since this margin was less than one-half of one percent, Florida law required an automatic machine recount. Two days later, the machine recount showed that Bush's margin of victory had shrunk to 327 votes. In this situation, a candidate may request a manual recount under Florida state law. Gore requested a manual recount in the four traditionally Democrat-leaning counties of Volusia, Palm Beach, Broward, and Miami-Dade.

While the counties began to comply with this request, they became concerned that they could not meet the state deadline for certifying election returns to the Florida Secretary of State within seven days of the election. The Florida court upheld the deadline but allowed the counties to amend their returns and found that the Secretary of State could use the amended returns. Palm Beach, Broward, and Miami-Dade Counties missed the seven-day deadline. Florida Secretary of State Katherine Harris required counties seeking to make a late filing to submit a written explanation for why it was necessary. She found that none of the explanations met the criteria that she had imposed on herself for determining whether late filings would be admitted. Harris thus certified Bush the winner of the election in Florida after receiving overseas absentee ballots.

A few weeks later, Gore's campaign obtained an order from the Florida Supreme Court for a statewide manual recount. On the next day, December 9, the U.S. Supreme Court ordered a stay of the recount. Writing for the five-Justice majority, Antonin Scalia argued that the votes that were ordered to be counted were not legally cast, and thus a recount could cause irreparable harm to Bush and the legitimacy of the democratic process. The dissenters felt that not ordering a recount would undermine the legitimacy of the democratic process and that the Court should be careful about taking actions that could determine the result of an election, which lay outside the judicial power.
Attorneys
  • Theodore Olson (Bush)
  • David Boies (Gore)

Opinions

Per Curiam

Seven Justices agreed that a manual statewide recount would violate the Equal Protection Clause of the Fourteenth Amendment, although only five agreed on the appropriate remedy. The Court emphasized that standards for manual recounts varied arbitrarily across counties and even precincts, so individual voters could not be sure that their participation in the democratic process would be given the proper weight. Florida's rule that a clear indication of the intent of the voter was required to make the vote count seemed too vague to be uniformly applied. However, the Court carefully limited its judgment to these specific circumstances.

Since the state could not finish the recount within the deadline set by state law, the recount was ended and the case remanded for further proceedings not inconsistent with the opinion. Gore thus had the opportunity to continue pursuing litigation at the state level.

Concurrence

  • William Hubbs Rehnquist (Author)
  • Antonin Scalia
  • Clarence Thomas

Generally reiterating the logic of the dissenters in the Florida Supreme Court, Rehnquist pointed out that federal courts do not usually have the authority to determine whether a state supreme court has properly interpreted a state statute. He felt that the per curiam opinion appropriately refrained from making that judgment.

Dissent

  • David H. Souter (Author)
  • Stephen G. Breyer
  • John Paul Stevens
  • Ruth Bader Ginsburg

While they agreed with the majority that the previous recount had violated the Equal Protection Clause, these dissenters felt that the Court should remand the case to the state courts and allow them to craft more uniform, detailed guidelines for another recount. They did not feel that the recount needed to be stopped. (Stevens and Ginsburg did not join with respect to Part C.)

Dissent

  • John Paul Stevens (Author)
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Concerned that the majority had violated federalism principles separating the federal government from the states, Stevens argued that the decision had undermined the authority of the state court system. He felt that popular confidence in the impartiality and competence of state judges would be unnecessarily eroded.

Dissent

  • Ruth Bader Ginsburg (Author)
  • John Paul Stevens
  • David H. Souter
  • Stephen G. Breyer

Souter and Breyer joined this opinion only with respect to Part I.

Dissent

  • Stephen G. Breyer (Author)
  • John Paul Stevens
  • Ruth Bader Ginsburg
  • David H. Souter

Stevens and Ginsburg did not join this opinion with respect to Part I-A-I, while Souter joined only with respect to Part I.

Case Commentary

The speed with which the Court needed to arrive at this decision resulted in a fragmented set of opinions that illustrated the deep ideological divides among the Justices. Some observers felt that partisan support for Bush caused the Republican Justices to halt the recount based on flimsy logic, but this claim has been disputed and has been viewed as unlikely to apply to at least Scalia and Thomas. (None of the Justices recused themselves, and ethics experts generally agree that recusal was not necessary.) While the opinion explicitly states that it applies only to the unique circumstances of this election, it has been cited in cases at the lower levels of federal courts on election law and procedures.

Ironically, many legal scholars and political figures felt that the Court had gone too far in addressing something outside its power under the political question doctrine, while others felt that it had not gone far enough in pointing out the need for nationwide electoral reform.

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