Bush v. Gore

Meanwhile, Bush had asked the U.S. Supreme Court to review the Florida Supreme Court's decision extending the deadline by which the counties had to submit their final counts. On December 4 the U.S. Supreme Court vacated the state supreme court's decision, remanding the case so the Florida high court could clarify the grounds of its decision. The U.S. Supreme Court expressed concerns that the Florida Supreme Court had usurped the state legislature's authority to determine the manner in which a state's presidential electors are appointed for the electoral college, an authority conferred by Article II of the federal Constitution. Five days later the U.S. Supreme Court, again at Bush's request, stayed the Florida State Supreme Court's decision ordering a statewide hand recount of the undervote, pending further review of that decision by the nation's high court.

After further review, the U.S. Supreme Court announced its decision on December 12, 2000. The Court reversed the Florida Supreme Court's decision ordering a statewide hand recount, declaring that the order violated Florida voters' right to equal protection of the laws guaranteed by the Fourteenth Amendment. "When a court orders a statewide remedy," the Supreme Court said in a per curiam opinion, "there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." The Court said that these requirements were missing from the process by which the court-ordered manual recount was being conducted.

The Florida Supreme Court had provided the canvassing boards with no uniform standards to evaluate the ballots cast by Florida voters. To the contrary, the U.S. Supreme Court observed, "standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another." For example, the Court noted that Palm Beach County changed its standards three times during the manual recounting process, fluctuating from more strict standards that precluded counting pregnant chads to more relaxed standards that allowed hanging, swinging, or trichads to be counted. Broward County, by contrast, used a more forgiving standard throughout its entire recount process and uncovered almost three times as many new votes as Palm Beach County, a result "markedly disproportionate" to the difference in population between the counties," the Court said.

The equal protection problems arising from the absence of uniform standards in evaluating a chad's status primarily affected the undervotes, or those ballots in which the vote tabulating machines detected that no vote for the presidency had been cast. But the Court said there was also an equal protection problem with the overvotes, or those votes in which the ballot reflected more than one vote for the presidency. Voters who marked their ballot in a way that was not readable by the machine (the undervotes) stood to have their votes counted through the manual recount process, while those who marked two candidates in a way that was discernable by the machine would not have had their votes counted, even if a manual examination of the ballot would reveal the voter's intent, because the Florida Supreme Court excluded the overvote from the statewide recount it had ordered.

While seven justices agreed that the court-ordered, statewide recount violated the Equal Protection Clause, only five justices agreed on the remedy. Chief Justice WILLIAM REHNQUIST and Associate Justices SANDRA DAY O'CONNOR, ANTONIN SCALIA, CLARENCE THOMAS, and ANTHONY KENNEDY noted that Florida law required the state to select its electors for the electoral college by December 12, which was the day the Court announced its decision in Bush v. Gore. Rehnquist, O'Connor, Scalia, Thomas, and Kennedy concluded that it was thus impossible to complete a statewide recount by day's end. For all intents and purposes, then, a majority of the Court ruled that the 2000 U.S. presidential election was over and George W. Bush had won.

Justices JOHN PAUL STEVENS, DAVID SOUTER, STEPHEN BREYER, and RUTH BADER GINSBURG dissented, with Stevens, Breyer, and Ginsburg each writing their own dissenting opinion. The December 12 deadline chosen by the majority was misleading, the dissenting justices asserted, since under federal law the electors had until December 18 to deliver their votes to Congress and until December 28 before Congress could request the electors to deliver their votes had they not already done so. "By halting the Florida recount in the interest of finality," Justice Stevens wrote, "the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines." In addition, Breyer stated: "An appropriate remedy would be to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida … and to do so in accordance with a single uniform standard."