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Photo of a sign reading'Count Every Vote.'
The Court's controversial decision in Bush v. Gore, issued in December 2000, effectively determined the outcome of the 2000 presidential election.

Photo by William L. Bird, courtesy of the National Museum of American History, Smithsonian Institution
Bush v. Gore (2000)

In Bush v. Gore (2000), a divided Supreme Court ruled that the state of Florida's court-ordered manual recount of vote ballots in the 2000 presidential election was unconstitutional. The case proved to be the climax of the contentious presidential race between Vice President Al Gore and Texas Governor George W. Bush. The outcome of the election hinged on Florida, where Governor Bush led Vice President Gore by about 1,800 votes the morning after Election Day. Because the returns were so close, Florida law called for an automatic machine recount of ballots. The recount resulted in a dramatic tightening of the race, leaving Bush with a bare 327-vote lead out of almost 6 million ballots cast. With the race so close, Florida law allowed Gore the option of "manual vote recounts" in the counties of his choosing. Gore opted for manual recounts in four counties with widespread complaints of voting machine malfunction: Broward, Miami-Dade, Volusia, and Palm Beach. However, Florida law also required that the state's election results be certified by the Secretary of State, Katherine Harris, within seven days of the election (by November 14, 2000). Three of the four counties, frantically laboring through the tedious manual recount, were unable to complete the process by the deadline.

On November 14, however, a Florida circuit court ruled that while Secretary Harris must respect the deadline, she could legally amend the certified results, at her own discretion, to reflect any late returns from the outstanding counties. Harris promptly announced that she would entertain late returns only if their tardiness was justified by each county in writing by 2 p.m. the following day (November 15). The three outstanding counties-Miami-Dade, Palm Beach, and Broward-immediately sent an explanation for the delay. Secretary Harris, however, rejected their explanations and announced that the final Florida vote count would be announced Saturday, November 18, 2000. On November 16, both Vice President Gore and Palm Beach County filed for an injunction against Secretary Harris to prevent her from certifying the election until the three counties could finish their recounts. The Florida Supreme Court issued the injunction on November 17, and on November 21 ruled that Secretary Harris must allow the counties until November 26 to finish their recounts.

Meanwhile, Miami-Dade stopped manually counting ballots, allegedly certain that it could not complete its recount by the November 26 deadline. Gore sought but failed to obtain a court order for Miami-Dade to continue counting. On November 26, with, at this point, just 537 votes separating Bush and Gore, Secretary Harris certified the election for Bush. The next day, Gore sued the secretary, alleging that the certified results were illegitimate because the recount process was not yet complete. After a local court dismissed the suit, Gore appealed to the Florida Supreme Court, which ruled on December 8 that all Florida ballots cast but not counted by voting machines ("undervotes") must be manually recounted if they had not been already. The court noted that in many counties, machines did not register votes because of defects in punch-card ballots ("hanging chads"). Governor Bush appealed this decision to the U.S. Supreme Court, which expeditiously reviewed the case on December 9.

On December 12, 2000, the Supreme Court, in a 5-4 "per curiam" (non-specially authored) decision, ruled that the Florida Supreme Court's recount order was unconstitutional because it granted more protection to some ballots than to others, violating the Fourteenth Amendment's Equal Protection Clause. This clause forbids states from denying "to any person within their jurisdiction the equal protection of the laws." The Court argued that voting for a president constituted a "fundamental right" strictly guarded by the Equal Protection Clause, and that the Florida Supreme Court's order violated this right because it was "arbitrary." The Court alleged that the order contained standardless and unequal processes to divine the "intent of the voter" that were above and beyond the settled processes required by Florida election law.

December 12, 2000, the day Bush v. Gore was decided, was also the state deadline for selecting electors to formally submit Florida's choice for president to Congress. Thus, with no time left to recount votes consistent with the Court's ruling, George W. Bush became the de facto winner. While some celebrated the Court's firm stance on equal rights in the face of political controversy, others criticized the decision as hypocritical and even politically opportunistic. For example, the five justices of the majority had previously and conversely granted great deference to state court decisions, and all were Republican appointees. Yet perhaps the harshest criticism came from the Court itself. In the concluding lines of his dissent, Justice John Paul Stevens proclaimed that "one thing ... 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."

Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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