Voting in the 2000 presidential race between Vice President Al Gore (Gore) and Governor
George W. Bush (Bush) took place on November 7, 2000.
As of November 8, 2000, the results for all states, except Florida, had been determined.
The electoral map was such that, without Florida’s 25 electoral votes, neither candidate could
attain the 270 electoral votes needed to secure the presidency.
Thus, he who won the Florida election would also win the national election.
On the morning of November 8, the preliminary tally in Florida had Bush ahead of Gore by
1,784 votes.
The difference was less than one half of one percent of the total number of votes cast.
Under Florida’s election law, this triggered an automatic recount by machine.
Problems arose because, at the time, the Florida voter was to use a stylus to punch a hole
in the ballot next to the name of her preferred candidate.
The counting machines would reflexively reject (that is, not include in the final count)
any ballots that they could not read, or that otherwise failed to conform to applicable
rules.
(Such rejected ballots were referred to as “undervotes”).
Undervotes included, for example, ballots where the hole was not punched all the way
through, or where a hanging or dimpled chad made it impossible for the machine to read
the ballot.
The machines also rejected so-called “overvotes”—ballots where more than one hole was punched under
the heading for the same office, thus indicating a selection of multiple candidates for one
position.
Such problems caused the machines to reject as many as 170,000 nonconforming ballots.
After the machine recount, Bush was still ahead of Gore, but by a noticeably lesser
margin than in the initial calculation.
Under Florida election law, this gave Gore the right to seek a manual recount county-by-county,
which he did in four counties: Volusia, Palm Beach, Broward, and Miami-Dade.
The fundamental task of the canvassers performing the manual recount was to look at each ballot
and discern the voter’s intent from the face of the ballot.
However, there were no uniform statewide standards in place for determining how the undervotes
and overvotes should be interpreted in the manual recount.
This led each precinct to develop its own distinct guidelines.
The result was wide disparity in the treatment of ballots between precincts.
On November 26, 2000, after the manual recount, Bush was certified as the winner of Florida’s
electoral votes.
However, Florida election law provided that the loser could challenge the certification
in court, but only if he could show a sufficient likelihood that so many conforming votes were
rejected, or nonconforming votes counted, as to cast genuine doubt on the outcome.
Gore challenged the results of the manual recount.
The trial court rejected Gore’s challenge entirely, holding that Gore had failed to
meet his burden of proof.
The Florida Supreme Court, upon certification from Florida’s intermediate appellate court,
reversed this result in part, holding that Gore had satisfied his burden of proof with
respect to the results in Miami-Dade and Palm Beach Counties.
The court identified several perceived problems, the most important of which was that the canvassers
in Miami-Dade had failed to count 9,000 undervotes in the manual recount.
The Florida Supreme Court held that, under Florida law, there was enough uncertainty
about whether the undervotes should have been counted so as to call into doubt the certification
of Bush as the winner.
Having so found, the Florida Supreme Court ordered, among other things, that the 9,000
undervotes in Miami-Dade be recounted by hand.
The Florida Supreme Court also gave the lower courts discretion to order further manual
recounts in other counties where there was a large number of undervotes (or overvotes).
The canvassers’ task here, as before, would be to look at the face of each ballot and
interpret the voter’s intent as best they could, any defects notwithstanding.
Beyond that, once again, there were no uniform guidelines for addressing the problems that
caused the machines to reject the ballots in the first place.
Bush filed an emergency petition in the Supreme Court of the United States (SCOTUS), upon
which SCOTUS temporarily stayed the recount and accepted review of the Florida Supreme
Court’s order for federal constitutionality.
Bush raised multiple grounds for reversal, but the one upon which SCOTUS decided the
matter was: Did the Florida hand recount process, which lacked uniform statewide standards for
interpreting the undervotes and overvotes, violate the Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution?
SCOTUS’ answer to that question, in a per curiam opinion, was yes.
SCOTUS began its analysis by noting that the U.S. Constitution commits the election of
the president to the state legislatures, not to the people.
The states are not required to allocate their electoral votes by popular vote.
However, once a state chooses to do so, the vote becomes a fundamental right in the hands
of each citizen.
Therefore, the Equal Protection Clause requires two basic things: First, each eligible voter
must have one vote to cast.
Second, the election must not be administered in such a way that one person’s vote has
greater weight than another’s.
If, under the prevailing election procedures, votes are subject to arbitrary, dissimilar
treatment between precincts, then the Equal Protection Clause is violated.
This principle is called the “one person, one vote” rule.
SCOTUS held that Florida’s manual recount process infringed the Equal Protection Clause.
The Court cited several intrinsic shortcomings in the process to support this conclusion,
all but one of which were, frankly, relatively minor.
The one critical flaw, on which the Court’s analysis ultimately hinged, was that there
were no uniform standards instructing the canvassers on how to interpret the rejected
ballots.
As a consequence, the various precincts developed their own wildly varying guidelines, which
led to unacceptable discrepancy in the treatment of ballots.
Consequently, there could be no confidence that each Floridian’s vote had equal weight.
Therefore, in order for Florida’s recount procedures to comply with the Equal Protection
Clause, uniform standards had to be developed and implemented, so that the rejected ballots
would be treated consistently from precinct to precinct and county to county.
Having reached this conclusion, SCOTUS now had to determine the proper remedy.
A federal statute, 3 U.S.C. § 5, provided a safe harbor under which a state’s certification
of its presidential electoral votes would be conclusive for all purposes, but only if,
among other things, any relevant controversies were resolved by 6 days before the meeting
of the Electoral College.
(If a state missed the deadline, and there was an outstanding controversy, Congress would
decide the matter.)
The Florida legislature had made clear that it wanted Florida’s presidential election
to come within the safe harbor.
However, the Supreme Court concluded that it would be impossible for Florida to implement
a constitutionally acceptable recount procedure within the deadline.
The deadline was imminent, and much work would have to be done.
Therefore, SCOTUS reversed the Florida Supreme Court’s order and stayed the recount.
This left no viable alternative, except to let stand the initial certification of Bush
as the winner.
Chief Justice Rehnquist wrote a separate concurring opinion.
He argued that the Florida Supreme Court, by its orders, had effectively rewritten Florida’s
election laws, thereby abdicating the Florida legislature’s exclusive authority over the
state’s presidential electors, as provided under the U.S. Constitution.
Justice Stevens, dissenting, felt that the case did not involve any significant issue
of federal law.
He argued that the case instead turned on the Florida Supreme Court’s interpretation
of Florida law, which SCOTUS had no business reviewing.
Most of the other dissenters agreed.
Justices Souter and Breyer, in separate dissenting opinions, agreed with the majority that there
was an actual, or at least potential, equal protection problem.
However, both believed that the proper remedy was to permit Florida to execute a constitutionally
appropriate recount, not to halt the recount for good.
Justice Ginsburg, dissenting, believed that the underlying recount process, while imperfect,
was at least minimally sufficient to comply with the Equal Protection Clause.
The Supreme Court's ruling in Bush v. Gore had the immediate impact of effectively deciding
the outcome of the 2000 presidential election, but the case sparked a still-ongoing debate
about the nature of judicial power and the role of the Supreme Court in the political
process.