Bush v. Gore , 531 U.S. 98 (2000) , is a landmark United States Supreme Court case decided on December 12, 2000. The case 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 , 531 U.S. 70 (2000) , and only three days earlier, had preliminarily halted the recount that was occurring in Florida.
In a per curiam decision, the Court in Bush v. Gore 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 electoral votes to stand. Florida's 25 electoral votes gave Bush, the Republican candidate, 271 electoral votes, defeating Democratic candidate Al Gore, who ended up with 266 electoral votes (with one D.C. elector abstaining). A majority (270) of the electoral votes is needed to win the Presidency or Vice Presidency in the Electoral College.
Background
See also: Electoral College (United States) and United States presidential election, 2000The Presidential election in question took place 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 the laws vary between the states, in most states, including Florida, the candidate for either office who receives the most popular votes (not necessarily a majority) in a state receives all of that state's electoral votes for that office (Maine and Nebraska are notable exceptions to this winner-take-all system). A candidate who receives a majority of the electoral votes (270 since 1961) 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, 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. 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 happen to be 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.
Stay of the Florida recount
By December 8, 2000, there had been multiple court decisions regarding the Florida presidential election and on that date the Florida Supreme Court, by a 4-3 vote, ordered a statewide manual recount. On December 9, the U.S. Supreme Court stayed the Florida recount, by a 5–4 vote, because, according to Justice Scalia:
It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether "ounting every legally cast vote ca constitute irreparable harm." One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast vote." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.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.
Rapid developments
The oral argument 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 , 531 U.S. 70 (2000) . 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 Clause of the Fourteenth Amendment, on which the decision in Bush v. Gore was based, states:
No State shall ... deny to any person within its jurisdiction the equal protection of the laws.Article II, § 1, cl. 2 specifies the number of electors per state, and, most relevant to this case, specifies the manner in which those electors are selected, stipulating that:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...This clause arguably gives power to only one branch of Florida's state government (i.e., the state legislature).
The most important statute in this case was 3 U.S.C. § 5, which regulates the "determination of controversy as to appointment of electors" in Presidential elections. Of particular relevance to this case was the so-called "safe harbor" provision, which allows states to appoint their electors without Congressional interference if done by a specified deadline:
If any State shall have provided ... for its final determination of ... the appointment of all or any of the electors of such State ... at least six days before the time fixed for the meeting of the electors, such determination ... shall be conclusive.Since the electors were set to meet December 18, the "safe harbor" deadline was December 12, just one day after the Court heard oral arguments in this case.
According to 28 U.S.C. § 1257:
Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where th
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