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531US1 Unit: $$U9 [05-01-02 10:02:37] PAGES PGT: OPIN Cite as: 531 U. S. 98 (2000) 119 Rehnquist, C. J., concurring properly marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, Fla. Stat. Ann. § 101.46 (1992); each polling place on election day contains a working model of the voting machine it uses, Fla. Stat. Ann. § 101.5611 (Supp. 2001); and each voting booth contains a sample ballot, § 101.46. In precincts using punchcard ballots, voters are instructed to punch out the ballot cleanly: “AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.” Instructions to Voters, quoted in Brief for Respondent Harris et al. 13, n. 5. No reasonable person would call it “an error in the vote tabulation,” Fla. Stat. Ann. § 102.166(5) (Supp. 2001), or a “rejection of . . . legal votes,” § 102.168(3)(c),4 when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. The scheme that the Florida Supreme Court’s opinion attributes to the legislature is one in which machines are required to be “capable of correctly counting votes,” § 101.5606(4), but which nonetheless regularly produces elections in which legal votes are predictably not tabulated, so that in close elections manual recounts are regularly required. This is of course absurd. The Secretary, who is authorized by law to issue binding interpretations of the Election Code, §§ 97.012, 106.23, rejected this peculiar reading of the statutes. See DE 00–13 (opinion of the Division of Elections). The Florida Supreme Court, 4 It is inconceivable that what constitutes a vote that must be counted under the “error in the vote tabulation” language of the protest phase is different from what constitutes a vote that must be counted under the “legal votes” language of the contest phase.

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Bush v. Gore

Judgment

Question Presented: Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?

Alleged Acts: Confusing ballots in Florida led to a dispute over the results of the 2000 Presidential election. A narrow margin resulted in a mandatory recount in the state of Florida. Due to delays in several recount counties, the Secretary of State certified the election with Bush as the winner. Gore brought this suit alleging that the election cannot be properly certified without a finished recount.

Procedural history: Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.

Summary: Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held, 5 to 4, that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case. Rehnquist, concurring, argued that the recount scheme was also unconstitutional because the Florida Supreme Court's decision made new election law, which only the state legislature may do. Breyer and Souter agreed with the per curiam holding that the Florida Court's recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake. Ginsburg and Stevens argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.

Conclusion: The Court ruled 5–4 that no constitutionally valid recount could be completed by a December 12 "safe harbor" deadline and ended the recount. As the "safe harbor" deadline had passed, Bush remained the winner of the 2000 presidential election.

Legal Issue(s)

Disputing Results
Vote Verification and Transmission

Applicable Law(s): 3 U.S.C. section 5. Constitution- Article 2, section 1, clause 2.

Region: Americas

Country: United States of America

Language of Decision

English

Court: Supreme Court

Election Type: Presidential

Date of decision: Dec 12, 2000

Geolocation

Latitude: 38.90371529400277

Longitude: -77.06409857725257

: Geolocation

Primary Documents

Bush v. Gore.pdf
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Election Judgments - IFES

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Bush v. Gore

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