Bush v. Gore (2000) And Bush v. Palm Beach County Canvassing Board (2000) – Guest Essayist: James D. Best

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The 2000 presidential election came down to who won Florida. Twenty-seven days after the election, the presidency remained undecided. Surrogates for George W. Bush and Al Gore clashed in a close-quarters fight that seemed to have no end.  Both parties persisted and refused to yield. The media filled nearly every broadcast moment and column inch of newsprint with the maneuvers and shenanigans of both parties. The pursuit of minutia, gossip, and a major scoop drove wall-to-wall reporting of the countless twists, turns, and skirmishes.

The day after the November 7, 2000, Presidential election, the Florida Division of Elections reported that petitioner, Governor George W. Bush, had received 1,784 more votes than respondent Vice President Albert Gore, Jr. Under the Florida Election Code, an automatic machine recount occurred, resulting in a much smaller margin of victory for Bush. Gore then exercised his statutory right to submit written requests for manual recounts to the canvassing boards of four Florida counties

The stakes were high … and becoming higher as time passed. Legal deadlines were missed, and then discarded. The official Electoral College vote loomed. Manual recounts had disintegrated into near chaos. Partisan squabbling literally surrounded every questionable ballot, with iconic images of officials holding up IBM-style cards to see if they could discern dimpled or hanging chads. Both sides had lawyered up—with armies of the best attorneys money could buy. To make matters increasingly stressful, the media fed the nation a never-ending stream of talking-heads, partisan spokespeople, videos of raucous demonstrations, and endless shots of closed doors meant to lock the public out. It appeared our Constitutional system was about to fail.

Two interrelated Supreme Court cases finally resolved the highly contentious 2000 election. The time span was short, only eight days, which is lightning fast for the Supreme Court.

  1. On December 4, in Bush v. Palm Beach County Canvassing Board, the Court unanimously ruled to vacate (void) a Florida Supreme Court ruling, and remanded the case (sent it back) for clarification.
  2. On December 12, in Bush v. Gore, the Court voted (7-2) that there was an Equal Protection Clause violation in the Florida recount and (5-4) that there was no alternative to comply with equal protection in the time remaining.

In the December 4 decision, the key issue was whether the state judiciary had the power to change election laws established by the legislature.

the court imposed a November 26 deadline for a return of ballot counts, thereby effectively extending by 12 days (the) 7-day deadline, and directed the Secretary to accept manual counts submitted prior to that deadline.

The U.S. Supreme Court vacated the Florida Supreme Court decision and asked for clarification on the basis for their decision. The state court may have overstepped its bounds because the Constitution gave states the authority to appoint electors “in such Manner as the Legislature thereof may direct.”

In light of considerable uncertainty as to the precise grounds for decision, the judgment of the Florida Supreme Court is vacated, and the case is remanded.

Many speculated that the Court “sent it back” because it was reluctant to get involved in this legal mire. The Court’s thinking may have been that time had run out and the mess would just go away if they ordered the state court to reconsider. (Electors were required to be selected by December 12 and met nationally on December 18.) If this was the Court’s hope, they were disappointed. The battle would not cease.

On December 8, 2000, the Florida Supreme Court ordered, inter alia, that manual recounts of ballots for the recent Presidential election were required in all Florida counties

Noting the closeness of the election … there could be no question that there were uncounted “legal votes”—i.e., those in which there was a clear indication of the voter’s intent—sufficient to place the results of the election in doubt

The Florida Secretary of State, a Republican, had already declared Bush the winner, so Bush filed an emergency application to the U.S. Supreme Court for a stay of this state court order. The Court accepted the application and ruled on December 12.

Because it is evident that any recount seeking to meet … (the) December 12 “safe-harbor” date would be unconstitutional under the Equal Protection Clause, the Florida Supreme Court’s judgment ordering manual recounts is reversed

The ruling (7-2) that recounts violated the Equal Protection Clause was not nearly as controversial as the second decision (5-4) which stated that there was insufficient time for a Constitutional remedy. Republicans wanted the official declaration of their victory accepted as legal and binding, while Democrats wanted to recount until the gavel fell at the Electoral College in the hope of overrunning the Republican’s slight edge. Florida law required a declaration seven days from the election, so Republicans felt Democrats were changing the rules of the contest after the fact. The original margin of victory for Bush was only 1,784 votes and the margin shrunk with each recount, thus Democrats believed Republicans were denying them the opportunity to count every vote.

The ramifications of these decisions have been huge. The Court’s rulings were used to taint Bush’s legitimacy, and the post-2000 political world has become far more partisan. Since December 12th, most analyses present the surrounding events in a sterile, legalistic manner that downplays the intense emotion of the contest. What’s glossed over is the chaos and anxiety that looked like it was going to go on forever. Someone had to stand up and call a halt to the recounts.

The ruling on December 4 was a punt, and the 7-2 Equal Protection Clause violation has been nearly forgotten. Post-election writings about the issue emphasize the 5-4 Court decision to call a halt to the recounts. In hindsight, the Court probably could have saved itself and the nation enormous heartache if it had made a definitive decision in Bush v. Palm Beach County Canvassing Board.

Bush v. Gore (2000) Supreme Court decision:  https://supreme.justia.com/cases/federal/us/531/98/

Bush v. Palm Beach County Canvassing Board (2000) Supreme Court decision: https://supreme.justia.com/cases/federal/us/531/70/

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales.

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