Chapter 23: The Judicial Path to the White House

Bush v. Gore (2000)

The Presidential election of 2000 was a cliffhanger that was ultimately decided by a few hundred contested ballots in Florida. In order to win, either Vice President Al Gore, a Democrat, or Texas governor George W. Bush, a Republican and the son of former President George H. W. Bush, had to secure at least 270 electoral votes. During the evening of Election Day, November 7, most of the television networks placed Florida in Gore’s column. Whoever won in Florida would be President. Later in the evening, however, this early prediction began to crumble; Bush gained a slim lead and the networks reversed their projections. Gore prepared to give a concession speech in Nashville, Tennessee. But under intense pressure from his aides, Gore decided at the last minute not to do so.

The Vice President believed that only a few hundred votes out of more than 6 million cast separated him and Bush. Gore’s campaign operatives in Florida reported to the candidate that there were allegations of voting irregularities. For example, reports surfaced that in voting districts with black majorities, which were likely to go to Gore, either the polls had closed before everyone could vote or voters were inappropriately turned away. There were also reports that in some counties, notably Palm Beach County in south Florida, the use of the so-called butterfly ballot had confused voters, many of them elderly, which may have resulted in votes that were intended for Gore going to Reform Party candidate Pat Buchanan. Further, the Gore campaign feared that the voting rolls in Florida had been purged of some 50,000 alleged felons, including some who were again eligible to vote under Florida law.

Allegations of voting irregularities, however, were not all on the Democratic side. Bush forces feared that overseas absentee votes, primarily from military personnel, most of whom were thought to be Bush supporters, were not being counted. They also believed an unfair advantage was given to Gore when all the major news networks incorrectly projected Gore as the winner at 7:52 P.M. eastern standard time, before the polls closed in ten counties in the heavily Republican western panhandle. They claimed that the Bush vote would have been greater had his supporters concluded that their votes would indeed count.

Both sides also became painfully aware that Florida’s use of machine-readable punch card ballots had a high rate of error. These ballots required a voter to use a stylus to push out a perforated section of the ballot to indicate his or her choice. In some instances, the voter did not push hard enough to perforate the card and indicate a vote conclusively (resulting in a “dimpled chad”) or a bit of paper remained attached to the ballot (a “hanging chad”) that could potentially be read incorrectly by the counting machine.

The Gore campaign believed that it could find enough incorrectly counted ballots to close the gap and decide the election in its favor, and its representatives requested a hand recount of ballots in four counties. What constituted a legally counted ballot became a subject of intense dispute. The Bush forces, on the other hand, wanted the recounts stopped, the election declared legal, and the state’s twenty-five electoral votes placed in their column.

Over the next five weeks the nation was treated to an intense political and legal struggle. The predicament was hardly new. On fifteen different occasions the nation had selected plurality Presidents, those who captured less than 50 percent of the popular vote but more than 50 percent of the Electoral College vote. Three candidates who received the greater share of the popular vote—Andrew Jackson in 1824, Samuel J. Tilden in 1876, and Grover Cleveland in 1888—failed to gain a majority in the Electoral College. As it turned out, Gore would be the fourth.

Gore won the national contest by more than 500,000 popular votes, but ultimately lost in the Electoral College by 266 to 271. Gore actually should have received 267 electoral votes, but an elector from the District of Columbia abstained from voting to protest the District’s lack of representation in Congress.

What was unique about the election was the closeness of the vote and the remarkable role that the Supreme Court played in deciding it. The election culminated in Bush v. Gore, the only time in our history that a Supreme Court decision determined the outcome of a Presidential election. Historically, the justices had shunned deciding so-called political questions. These were controversies that the Court regarded as inappropriate for judicial resolution. It has often decided not to decide political cases, preferring instead to allow the executive and legislative branches and the political process to resolve them. In this instance, however, the Court thought it necessary to hear the case in order to resolve the significant constitutional issues at stake.

Florida law seemed to favor Gore. It provided that a candidate could request a hand recount in any county and that, if the election were close enough, as this one was, an automatic recount would be triggered statewide. But the Republicans, led by James Baker, the former secretary of state for President George H. W. Bush, decided to contest these recount efforts. They filed suit in federal court asking for an injunction to block them. The judge refused to grant the injunction and instead directed the Republicans to plead their case before the Florida courts. They found an unreceptive audience. The Florida Supreme Court rebuffed attempts by Florida secretary of state Katherine Harris to order an end to the recounts. Nevertheless, Harris proceeded on her own authority to declare that any recounted ballot would not be accepted after a specified time. Gore’s lawyers challenged her order in the state courts, and on November 21, 2000, the Florida Supreme Court again rejected Harris’s actions and ordered that the recounts continue through the Thanksgiving weekend. Harris also ignored these findings and declared Bush the winner.

The Bush team again turned to the lower federal courts and ultimately the Supreme Court, which held an expedited review of the case. The Bush team argued that the Florida court had erred in two ways. First, it had violated the equal protection clause of the Fourteenth Amendment by permitting the recounts. Bush claimed that because there was no standard that could be applied statewide to what constituted a legal ballot, some counties would have more liberal standards than others. A vote in one county might be counted while in another, a ballot marked in an identical way would be rejected. Second, the Bush team insisted that the determination of Presidential electors was a political matter that rested with the legislature, not the courts. On November 27, the justices in a unanimous and unsigned opinion in the case of Bush v. Palm Beach County Canvassing Board remanded the case back to the Florida Supreme Court. The justices specifically asked the Court to clarify whether its ruling rested on the Florida constitution or Florida statutes. The U.S. Supreme Court was concerned that if the Florida judges had acted on the basis of the Florida constitution, which was not written by the Florida legislature, then their finding would be unconstitutional under Article II, Section 1, Clause 2 of the federal Constitution. It provides that “each state shall appoint, in such a manner as the Legislature thereof may direct, a number of electors.”

By this time the entire nation had become focused not just on who would be elected President but on who ultimately would decide that question. There was also a sense of immediacy, even urgency, not just to resolve who would be President but to do so within the time frame specified by law. Under a federal law dating from the Reconstruction era, each state is provided a “safe harbor” during which period the state has to select its electors. This safe harbor ends six days prior to the meeting of the Electoral College; in the 2000 election, the safe harbor deadline was December 12.

The safe harbor provision was introduced into federal law following the 1876 Presidential election, perhaps the most bitterly disputed contest in American history. Democrat Samuel Tilden handily beat Rutherford B. Hayes in the popular vote, but twenty electoral votes were in dispute among three states— Florida, Louisiana, and South Carolina. A backroom deal in Congress sealed Tilden’s fate and sent Hayes to the White House, despite the wishes of the electors from the three Democratic states. For more than a decade following the election, Congress tried to fashion federal rules that would make a similar occurrence unlikely. They settled on the “safe harbor” provision as one way of protecting the decisions states made about their electors. It provided that if states resolved disputes within six days of the time the electors were to cast their ballots, then Congress could not interfere. The provision invited the states to establish means of settling disputes that would make the states’ own resolutions of election controversies conclusive and prevent a debacle like the one following the 1876 election.

When the Florida Supreme Court heard Bush v. Palm Beach County Canvassing Board a second time, it again sided with Gore. The judges ordered the election authorities in Florida to continue a statewide recount of all ballots. The Bush forces feared that such a recount would undermine the thin margin of victory they commanded and pointed to the fact that Secretary of State Harris had declared their candidate the victor. The case again went to the U.S. Supreme Court, this time titled Bush v. Gore. By a 5–4 vote, the justices decided to issue a controversial emergency injunction halting the recount. Justice Antonin Scalia explained that the injunction was appropriate because if the recount continued it would, in his words, “do irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” The dissenters argued, in the words of Justice John Paul Stevens, that “counting every legally cast vote cannot constitute irreparable harm.” The decision to issue the injunction did not, however, settle the larger constitutional issues but only set the stage for the final arguments before the justices, which were held two days later.

The arguments before the Supreme Court in Bush v. Gore received an extraordinary level of public attention. On the day the case was argued, hundreds of demonstrators from both parties shouted and carried placards outside the court building. By and large, public opinion polls suggested that the high court was the appropriate venue through which to settle the matter, underscoring the extent to which the Court had, over the previous two centuries, come to be viewed by the public as the final arbiter of the Constitution and an honest voice amid self-interested politicians.

David Boies, one of the nation’s most successful litigators, aided by Laurence Tribe, a Harvard Law School professor, argued the case for Vice President Gore. Theodore B. Olson, a partner in a leading Los Angeles law firm who had served as an assistant attorney general in the Reagan administration, represented Bush. The justices had to resolve two different questions in Bush v. Gore. The first involved the constitutionality of recounts. If they were not constitutional, the justices had to decide on a remedy for the contested election. And they had to do so swiftly. The safe harbor provision would become operative in Florida the day after the Court was to hear the case.

Against this background, Theodore Olson rested part of his case on the equal protection clause of the Fourteenth Amendment. The problem created by the Florida Supreme Court’s order, Olson insisted, was that it failed to provide a statewide standard for recounts. That meant that each county election board could follow whatever standard it chose to determine whether a ballot was legal or not. Two similarly marked ballots in two different counties could be judged in different ways. What was accepted in one county could be rejected in another; dimpled and hanging chads might pass muster in one place but fail in another.

Boies responded that there were already statewide standards in place. In Florida, persons known as canvassers checked the authenticity of ballots. They did so by applying the “intent of the voter” standard, which had been used for years and was compatible with the equal protection clause. Boies reminded the justices that the issues in Florida were not unique. If the justices ruled the Florida recount unconstitutional simply on the unproven view that it treated different voters differently, then they would effectively render every state election unconstitutional. Boies insisted that the states had the right to set their own systems of casting, counting, and recounting votes. One state might use hand-pulled voting machines; another state, like Florida, could choose to rely on the punch-card system.

Olson also argued that the Florida Supreme Court’s ruling that the statewide recount should continue violated Article 2, Section 1, Clause 2 of the U.S. Constitution, which requires that each state appoint electors “in such Manner as the Legislature thereof may direct.” In simplest terms, the Florida Supreme Court judges could not supersede the role of the legislature and thereby violate Article 2. This portion of Olson’s argument was controversial. Under the Supreme Court’s own precedents, the rule had held that when a state’s highest court interprets state law, that interpretation is final and a federal court, even the Supreme Court, must defer to it. Olson agreed that this was established precedent, but that the circumstances in this case were different. Article 2, Olson insisted, gave the federal judiciary the power to interpret state election law in order to make sure that state courts were actually following the intent of the state legislature. Without such a check, the state courts could improperly intervene, as the Florida Supreme Court was doing, in the results of a federal election. In response, Boies claimed that such a ruling would give new powers to the federal courts and that the power to interpret state election laws should remain, as it been historically, with the states and state judges, who were ideally suited to understand the intent of the legislature.

The justices embraced only part of Olson’s arguments, but in the end sided with Bush. Only three justices, Rehnquist, Scalia, and Clarence Thomas—all Republican appointees and all conservatives committed to state rights, accepted Olson’s efforts to expand federal supervision of the state courts. On the other hand, seven of the justices, with varying degrees of intensity, embraced some or all of his equal protection argument. Only Justices John Paul Stevens and Ruth Bader Ginsburg refused to go along with it at all.

Having found a violation of equal protection of the laws, the justices had to decide what remedy was appropriate. The calendar complicated the answer. Oral arguments were held on December 11; the safe harbor provision involving Florida became effective the following day; and the electors were required by federal law to meet and cast their ballots on December 18. The irony for the nation was that a recount probably would have been completed had the justices not stayed it on December 9, but it was impossible to complete, especially with the new equal protection requirements, in the two hours that remained when the justices issued their decision at 10:00 PM on December 12.

Moreover, a bewildering set of concurrences and dissents complicated the matter further, so much so that television reporters struggled in front of their cameras to explain to an anxious nation exactly what the justices had done. Nevertheless, the import of the Court’s decision soon became clear: a further recount was unworkable and illegal, and Bush had won. The 5–4 majority ordered that the results certified by Secretary of State Harris on November 26 be made official. The justices issued a brief, thirteen-page, per curiam (unsigned) opinion. In an additional fifty-two pages they clashed with one another. What had gone on inside the conference as the justices wrestled with the case splintered the Court.

On the question of the appropriate remedy, Chief Justice Rehnquist wrote for a majority of the justices apart from the unsigned portion of the opinion. He noted that intervention by the Court was an “unsought responsibility.” He concluded, along with five other members of the Court, that the methods of counting ballots in Florida violated the equal protection clause of the Fourteenth Amendment because the state had no uniform standard, just as Olson had argued. The majority also noted that it would be impossible to conduct a constitutionally acceptable recount in the time left to do so. Though it was true that Florida had adopted the “intent of the voter” standard, in practice this standard failed to guarantee that each county would treat ballots in the same way. “When a [state] court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied,” Rehnquist observed.

Chief Justice Rehnquist attempted to limit the sweep of the decision and forestall criticism by explaining that “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” The Court apparently agreed on this wording because it recognized that time was so short in reaching a decision and that it would be inappropriate to extend its larger implications to other states or other matters. For the critics of the Court, however, the sentence seemed to suggest that a bare majority of the justices had fabricated a standard to be applied only once that conveniently assured George Bush’s victory. If, critics complained, the decision was not sufficient to be a precedent in the future, then it followed that it was not sufficient to decide the case.

Moreover, critics argued the majority had improperly favored Bush when it halted the recount on the grounds that one candidate, George Bush, faced irreparable harm. Moreover, liberals who had viewed judicial power as a way of restoring rights and promoting equality through the Fourteenth Amendment denounced the justices for playing politics that favored the Republican Party, with which the majority of them had been associated.

In its opinion, the Court also reminded the nation that its voting procedures were badly in need of revision. “This case has shown,” the Court observed, “that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by voters.”

The justices expected that following Bush v. Gore, state legislatures would “improve the mechanisms and machinery for voting.” While the critics wailed, opinion polls in the wake of the decision revealed broad support for the actions of the Court. Most Americans seemed grateful that the justices had stepped into this particular political thicket.

There was no denying, however, the real differences inside the Court. Ironically, conservative justices, who had clamored for the federal courts to stay out of political matters and defer to the states, resorted to judicial power to override Florida’s high court and to resolve one of the most important political questions in American history. The four dissenters (David Souter, Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens) charged that the outcome was unfair and that the recount should have been allowed to go forward until December 18, when the electors were to cast their ballots. Perhaps the harshest judgment passed on the decision came from Justice Stevens, an appointee of Gerald Ford who had become increasingly liberal. Stevens concluded:

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. 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.

Justice Stevens’s fears were not fulfilled, as public opinion surveys conducted after the Bush v. Gore decision did not reveal a loss of confidence in judges and courts of law. Although the decision remained controversial, most Americans were relieved that it brought an orderly and peaceful conclusion to a politically divisive dispute.

Bush v. Gore left an indelible mark on the history of the Court and the nation. The official vote tally in Florida made Bush the winner by 537 votes and gave him the state’s twenty-five electoral votes. Al Gore had 543,816 more votes nationally than George Bush. Predictably, reformers demanded an amendment to the Constitution that would end the Electoral College system. These pleas fell on deaf ears. Congress did pass the Help America Vote Act, an electoral reform measure that authorized the federal government to provide funds to the states to replace their mechanical voting equipment with electronic equipment. Most importantly, however, the decision represented the extraordinary exertion of judicial power that determined no less than who would lead the world’s most powerful nation.