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Bush v. Gore

The Controversy Begins

Before the results of the first recount were announced, two controversies had arisen. First, all Palm Beach County voters had cast their votes on confusing ballots known as "butterfly ballots", which displayed candidates' names on both sides of the ballot, one pair of candidates' names on top of the other, with arrows pointing toward the middle of the ballot, where voters were required to mark their vote by using a stylus to punch through a small circular or rectangular "chad" (a perforated punchhole used to record votes). The poorly configured ballot had caused hundreds or more of elderly Jewish voters to mistakenly cast their vote for PAT BUCHANAN, a right-wing candidate for the REFORM PARTY, someone whom such voters are demographically unlikely to support.

Second, Gore's legal team had discovered an unusually high number of "undervotes" (ballots that the tabulating machines had not counted as a vote for any presidential candidate) in counties that used punchcard voting. Florida's election law allows both candidates to "protest" an election by requesting a manual recount within seven days of the election, and the county canvassing boards "may" agree to authorize one, Fla. Stat. sections 102.112, 102.166. On November 9 Gore invoked these statutory provisions, asking the canvassing boards of Broward, Miami-Dade, Palm Beach, and Volusia Counties to authorize a manual recount. Gore had carried each of those counties by wide margins and expected to benefit from a manual recount of the ballots in those heavily Democratic counties.

Notwithstanding Republican opposition, all four counties authorized a manual recount of several "sample" precincts. Once the sample precincts had been manually recounted, state law authorized the canvassing boards to order a full recount of all ballots cast in the county if the results from the sample precincts indicated "an error in the vote tabulation which could affect the outcome of the election," Fla. Stat. section 102.166.

The problem was that Florida law required all counties in the state to submit their final counts by November 14, again minus the overseas votes, which could be submitted until November 18. Only Volusia County met the November 14 deadline, and Florida SECRETARY OF STATE Katherine Harris, the state's highest election official, refused to extend the deadline so the manual recount could be completed in the other three counties. In making her decision, Harris was accused of being influenced by Republican Florida governor Jeb Bush, brother of presidential candidate George W. Bush, even though Harris was a prominent member of the state REPUBLICAN PARTY who had been elected to office and not appointed by the governor. On November 18 Harris announced that the overseas votes had increased Bush's lead from 327 to 930 votes.

The Broward, Palm Beach, and Miami-Dade canvassing boards sued Harris to extend the deadline on which they had to submit their final counts, and though they lost in trial court, the Florida Supreme Court overruled the trial court and extended the deadline to November 26. The state high court authorized the canvassing boards to order countywide manual recounts if they concluded that the results from their sample precincts revealed "an error in the vote tabulation which could affect the outcome of the election." Republicans had argued that "an error in vote tabulation" meant a machine error in tabulating the vote. But the Florida Supreme Court ruled that this phrase also included voter error in failing to fully dislodge the chad from the ballot, such that the chad was left "hanging" by one corner, "swinging" by two corners, attached by three corners (a "tri-chad"), or otherwise "dimpled" or "pregnant" (dimpled and pregnant chads referred to bulging, indented, or marked chads that remain attached to the ballot by all four corners).

On remand all three canvassing boards concluded that "an error in vote tabulation" had occurred and ordered countywide manual recounts of hundreds of thousands of votes across several hundred precincts. Only Broward County completed its recount by the newly extended deadline, and the Florida Supreme Court refused to extend the deadline further for Palm Beach and Miami-Dade Counties. With Bush holding a lead of 537 votes after factoring in the manually recounted ballots from Broward County, Katherine Harris certified Bush the winner on November 27. Gore then sued Harris to contest the certification, again losing in the trial court but prevailing on appeal, where the Florida Supreme Court ruled that Harris had to include in her certified totals the untimely recounted votes from Palm Beach and Miami-Dade Counties, which whittled down Bush's lead to 154 votes. The court also ordered a manual recount for all the 60,000 undervotes cast in the state but failed to specify the criteria by which those votes would be counted as having been made for Bush or Gore. The canvassing boards of each county were free to determine their own criteria.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Bryan Treaties (Bryan Arbitration Treaties) to James Earl Carter Jr. - Further ReadingsBush v. Gore - Introduction, Election Night, The Controversy Begins, The U.s. Supreme Court Steps In