Bush v. Gore
“”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 John Paul Stevens' Dissent, Bush v. Gore|
In Bush v. Gore, the Supreme Court of the United States voted 5-4 to install George W. Bush as President of the United States. The decision was rendered a little over a month following the date of the election. It reversed the Florida Supreme Court, ruling that a remedy could not be found by which Presidential ballots might be recounted — in effect, preventing a recount in a circumstance in which Bush held a lead of a little over 500 votes over Democratic candidate Al Gore.
The case was noted for its extraordinary speed. Oral arguments were heard on December 11 and the court's verdict was delivered on December 12 (with Gore conceding the following day). The justices ruled to stop the Florida recount along ideological and partisan lines. Justices William Rehnquist, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia and Clarence Thomas, the "conservative" majority, were all appointed by Republicans, while the "liberal" minority, Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens, was composed of both Democratic and Republican appointees.
It turned out that Gore won the popular vote anyway, but Bush took the Electoral College.
It also proves that if you
are a republican try hard enough, you can push through any case you want you can do anything!
Thanks to the amateurism of Florida, things were already badly confused before the Supreme Court voted on Bush v. Gore. The voting machines
were completely broken did not work well, resulting in 9,000 uncounted votes ("undervotes") in Miami-Dade County and perhaps 110,000 papers showing more than one vote ("overvotes") statewide; and there was no clear procedure for a recount. On top of this, the infamous "butterfly ballot" (so designed to allow for a larger font size to minimize confusion) in Palm Beach County (known for its very large Jewish population) led to about 1,500 Gore voters casting accidental votes for Pat Buchanan. The pressure was enormous to select Florida's electors to the electoral college in the limited time available, and this ensured it was almost impossible to set up a fair procedure to reassess the damaged ballots.
Nonetheless, the opinion of most observers was that it wasn't within the US Supreme Court's jurisdiction to overrule what the state's courts had already decided to do. While in other cases Scalia and his fellow conservative justices were keen defenders of states' rights, here they used the Equal Protection Clause of the Fourteenth Amendment to overrule the Florida Supreme Court. Scalia later admitted that this argument was, "as we say in Brooklyn, a piece of shit". The majority claimed that allowing ballots to be manually recounted could lead to different judgments about what was a valid ballot in different counties, because no two people would make exactly the same judgment, and therefore all votes would not be assessed identically.
The jurist Ronald Dworkin called it "one of the least persuasive Supreme Court opinions that I have ever read". Dworkin judged that the split along partisan lines did not reflect the judges' usual constitutional interpretations or legal philosophies. Dworkin noted that the Supreme Court saw nothing wrong in different counties using different types of voting machines (card punches versus optical readers), even though this was arguably a far more serious violation of the Equal Protection Clause, and would certainly lead to ballots be counted differently in a systematic manner - though one that would disadvantage poor and presumably Democratic voters.
Ultimately, Al Gore was pretty much the only Democrat who accepted the judgment, at least initially. However, Democratic senators were quick to join him, and to tell anyone in Congress who had a problem with the whole thing to "sit down and shut up."
History repeats itself?
Comparisons have been made between Bush v. Gore and the legal shenanigans engaged in by President Donald Trump at the end of the 2020 U.S. presidential election. Before the voting had even begun, media sources were raising the spectre of another close election being decided by a Supreme Court with a deliberately engineered conservative majority. However, since Joe Biden was clearly the winner, and the Republican legal case was so "haphazardly stitched together", the Supreme Court "refused to take action" and overrule the wishes of the majority of American voters.
Of course, if the election results had been less clear, things might have turned out differently. And while Bush v. Gore apparently wasn't supposed to set a precedent (according to the majority, their consideration was supposed to be "limited to the present circumstances", although interpretations have differed over what exactly this was supposed to mean), it has in fact "been cited in hundreds of federal and state cases since." A lawyer working on behalf of the GOP to throw out ballots in Pennsylvania after the 2020 U.S. presidential election "repeatedly invoked the 2000 U.S. Supreme Court decision in Bush v. Gore". And just prior to the election, Supreme Court Justice Brett Kavanaugh (who joined George Bush's legal team in December 2000, during his legal battle against Al Gore) "cited the case and another from the 2000 recount of the presidential vote in his explanation of why he voted to deny a request to reinstate an extension for the receipt of mail-in ballots in Wisconsin. [...] the Supreme Court has never cited it as precedent in the two decades since, and only one other justice, Clarence Thomas, has even mentioned it in an opinion." Ultimately, "Bush v. Gore is not, as some critics have alleged, a merely incoherent opinion; it is contradictory, both setting down a rule and denying that any rule had been set down."
It thus remains a possibility that a future presidential election in the United States might see the same thing happen again.
As the saying goes: "History never repeats itself, but it rhymes."
- Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish by Vikram D. Amar and Akhil Amar (2022) Supreme Court Review 1.
- See the Wikipedia article on Bush v. Gore. For the legalese in full.
- Ralph Nader
- Breyer's dissent
- Souter's dissent
- Electoral College - For all those other times a unelected assembly of people choose who is president.
- The 2020 U.S. presidential election (which could have ended up being the same thing all over again)
- When Election Night Became Election Month, The New York Times
- Bush v. Gore
- Thomas, Evan (2019). First: Sandra Day O'Connor. New York: Random House. p. 332. ISBN 9780399589287.
- Ronald Dworkin, A Badly Flawed Election, NY Review of Books, Jan 11, 2001