A very streamlined introduction to Bush v. Gore.

AuthorLund, Nelson
PositionThe Legacy of Bush v. Gore in Public Opinion and American Law
  1. Background II. The Florida Supreme Court Decision III. Bush v. Gore IV. Five Myths about Bush v. Gore A. The Republican/Conservative Conspiracy Theory B. The Federalism Theory C. The Departure from Precedent Theory D. The Nonjustiability Theory E. The Ad Hoc Decision Theory V. Conclusion Bush v. Gore (2) is among the most reviled Supreme Court decisions in recent times. It is also one of the most widely misunderstood. This is partly because of the highly complex series of events that preceded the Court's decision. But it is mostly because the Court's opinion has been insistently mischaracterized by legions of academics and other pundits who simply hate what the Court did. Elsewhere, I have provided detailed analyses of the decision. (3) Here, I will offer a concise explanation of what the Court did and why, and perhaps equally important what it did not do. Interested readers can use the citations in the footnotes to find further elaboration and confirmation of the points summarized in this article.

  2. BACKGROUND

    Here are the essential facts. The 2000 Florida presidential election was extremely close, with George W. Bush getting slightly more votes than Al Gore in the initial count of the ballots, and slightly more votes than Gore in a recount of the ballots mandated by Florida law in close elections. (4) Both the initial count and the recount were conducted primarily by machines, (5) which are programmed to detect which candidate, if any, the voter chose for each office on the ballot. (6) A counting machine records no vote for a particular office when: (1) it detects no choice for any candidate for that office (undervote ballots) or (2) it detects a choice for more than one candidate for that office (overvote ballots). (7) The machines are fallible, and in some cases, a human observer will interpret the ballot differently than the machine did. (8) Humans are also fallible, and different people will sometimes interpret the same ballot differently.

    Invoking Florida law, Gore demanded that some ballots be recounted yet again, this time by human beings. (9) Shrewdly, he chose to ask for these manual recounts only in heavily Democratic jurisdictions. (10) If the machines randomly mistook some legally valid ballots for undervotes or overvotes, Gore could expect to be a net gainer in these partial recounts on the basis of chance alone. And since much of the recounting would be conducted by partisan officials in these heavily Democratic jurisdictions, Gore might be further helped by biased interpretations of the ballots (whether arising consciously or subconsciously). Gore's cherry-picking strategy faced serious impediments under Florida law, but the Florida Supreme Court brushed aside those obstacles, dismissing them as "technical statutory requirements." (11)

    These selective recounts were initiated, but they were not all completed when the deadline arrived for declaring the final results. (12) At that point, Bush was still ahead by 537 votes. (13) Gore filed a lawsuit challenging the results, a trial was held, and the court ruled that Gore had failed to produce sufficient evidence in support of his challenge. (14)

  3. THE FLORIDA SUPREME COURT DECISION

    The Florida Supreme Court reversed the trial court, and remanded the case with orders to take several actions that Gore had sought. (15)

    * The trial court was ordered to add about 200 votes to Gore's total based on the Palm Beach recount, although the results of that recount had not been reported to state officials until after the deadline established by the Florida Supreme Court itself. (16)

    * The trial court was also ordered to add 168 votes to Gore's total based on an incomplete recount in Miami-Dade. That recount had begun with heavily Democratic precincts, and more Republican precincts had not been recounted. (17)

    * The trial court was ordered to conduct a manual recount of some 9,000 undervote ballots in Miami-Dade that Gore believed might shift the statewide totals in his favor. (18)

    Gore can hardly be blamed for asking that a recount be conducted in a way that was highly biased in his favor, but the Florida Supreme Court had other obligations. Apparently recognizing that Gore's proposal could make the outcome of the election turn on "strategies extraneous to the voting process," (19) and would not even pass a straight-face test of fairness, the Court also issued an order that Gore had not sought.

    * The trial court was to conduct a statewide recount of some kind. The supreme court strongly suggested that it should be limited to undervote ballots in each county, and the trial court did so limit it. (20) The Florida Supreme Court's decision was decided by a vote of 4-3. (21) The dissenting judges vigorously contended that the majority's decision had "no foundation in the law of Florida" (22) and that its order "would violate other voters' [federal] rights to due process and equal protection of the law." (23) The dissenters predicted that election results based on such a lawless process would eventually be overturned. (24)

  4. BUSH V. GORE

    In Bush v. Gore, the United States Supreme Court did exactly what the Florida dissenters foresaw. Relying on well established precedents, the Court held that the recount ordered by the Florida Supreme Court produced vote debasement of a kind that violated the one person, one vote principle of the Equal Protection Clause. (25)

    The easiest way to understand the logic of the Court's decision is to begin with the paradigmatic case of vote debasement in the vote-counting context: stuffing the ballot box. When invalid ballots are counted along with valid ballots, the valid ballots are debased or diluted by the invalid ballots. The Supreme Court has repeatedly said that this practice violates the one person, one vote principle because each valid vote is in effect "weighted" at less than one vote. (26) When valid ballots are selectively added during a recount, the same kind of vote debasement occurs.

    Suppose, for example, that a manual recount discovered ballots that the machines had mistakenly registered as undervotes or overvotes; assume further that some of these ballots were valid votes for Bush while others were valid votes for Gore. If those conducting the recount added the newly discovered Gore votes to his vote total, but did not do the same for the Bush votes, the effect would be exactly the same as when ballot boxes are "stuffed" with invalid ballots.

    The Florida recount contained built-in biases in Gore's favor that indirectly produced the same kind of debasing effect on votes cast for Bush. Confining the initial manual recounts to certain heavily Democratic counties, for example, meant that ballots read by the machines as undervotes or overvotes in these jurisdictions might be changed to valid votes during the recount; identical ballots in...

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