Bush v. Gore (2000)

Summary

In the 2000 presidential election, counting machines in Florida rejected numerous ballots for various reasons. An automatic recount resulted in a victory for George W. Bush, but by a narrower margin, and candidate Al Gore requested manual recounts. The rules governing manual recounts, specifically those for assessing ballots to determine voter intent, were not sufficiently uniform across the state of Florida. The Court held in a per curiam opinion that the Equal Protection Clause requires uniformity in these rules to fulfill each citizen’s right to vote, but that there was no time left to push a constitutional recount through. This opinion did not establish broad precedent, although it did mean that then-candidate Bush held onto his Florida victory and the Presidency of the United States.

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Excerpt: Per Curiam

When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. . . .

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” . . .

The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary. . . .

As seems to have been acknowledged at oral argument, 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.
 

Excerpt: Dissent, Justice John Paul Stevens

Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, “[t]he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” If it were otherwise, Florida’s decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy—might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design.

Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority’s disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one’s vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature’s uniform general standard to be established.

In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines.

Excerpt: Dissent, Justice Ruth Bader Ginsburg

I might join THE CHIEF JUSTICE were it my commission to interpret Florida law. But disagreement with the Florida court’s interpretation of its own State’s law does not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that the members of Florida’s high court have done less than “their mortal best to discharge their oath of office,” and no cause to upset their reasoned interpretation of Florida law. . . .

[T]he Court’s reluctance to let the recount go forward—despite its suggestion that “[t]he search for intent can be confined by specific rules designed to ensure uniform treatment”—ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process.
 

Excerpt: Partial Dissent, Justice Stephen Breyer

By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots.

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