On This Day: SC rules on Bush v Gore, called a perversion by critics - Dec. 12, 2000
(edited from Wikipedia)
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Bush v. Gore was a decision of the United States Supreme Court on December 12, 2000, that settled a recount dispute in Florida's 2000 presidential election between George W. Bush and Al Gore. On December 8, the Florida Supreme Court had ordered a statewide recount of all undervotes, over 61,000 ballots that the vote tabulation machines had missed. The Bush campaign immediately asked the U.S. Supreme Court to stay the decision and halt the recount.
Justice Antonin Scalia, convinced that all the manual recounts being performed in Florida's counties were illegitimate, urged his colleagues to grant the stay immediately. On December 9, the five conservative justices on the Court granted the stay, with Scalia citing "irreparable harm" that could befall Bush, as the recounts would cast "a needless and unjustified cloud" over Bush's legitimacy. In dissent, Justice John Paul Stevens wrote that "counting every legally cast vote cannot constitute irreparable harm." Oral arguments were scheduled for December 11.
In a 5–4 per curiam decision, the Court ruled, strictly on equal protection grounds, that the recount be stopped. Specifically, it held that the use of different standards of counting in different counties violated the Equal Protection Clause of the U.S. Constitution.
The majority held that no alternative method could be established within the discretionary December 12 "safe harbor" deadline set by Title 3 of the United States Code. That deadline arrived two hours after the release of the Court's decision. The Court, holding that not meeting the "safe harbor" deadline would therefore violate the Florida Election Code, rejected an extension of the deadline.
The Supreme Court's decision in Bush v. Gore was among the most controversial in U.S. history, as it allowed the vote certification made by Florida Secretary of State Katherine Harris to stand, giving Bush Florida's 25 electoral votes. Florida's votes gave Bush, the Republican nominee, 271 electoral votes, one more than the 270 required to win the Electoral College. This meant the defeat of Democratic candidate Al Gore, who won 267 electoral votes but received 266, as a "faithless elector" from the District of Columbia abstained from voting.
Media organizations later analyzed the ballots and found that, under specified criteria, the originally pursued recount of undervotes of several large counties would have confirmed a Bush victory, whereas a statewide recount would have resulted in a Gore victory. Florida later retired the punch-card voting machines that produced the ballots disputed in the case.
[Dissent]
The dissenting opinions strongly criticized the majority for involving the Court in state-level affairs. Stevens's dissent (joined by Breyer and Ginsburg) concluded as follows:
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, 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.
Critiques
Several articles have characterized the decision as damaging the reputation of the court, increasing the view of judges as partisan, and decreasing Americans' trust in the integrity of elections, an outcome Stevens predicted in his dissent.
[Improper Stays]
Part of the reason recounts could not be completed was the various stoppages ordered by the various branches and levels of the judiciary, most notably the Supreme Court. Opponents argued that it was improper for the Court (by the same five justices who joined the per curiam opinion) to grant a stay that preliminarily stopped the recounts based on Bush's likelihood of success on the merits and possible irreparable injury to Bush.
Although stay orders normally do not include justification, Scalia concurred to express some brief reasoning to justify it, saying that one potential irreparable harm was that an invalid recount might undermine the legitimacy of Bush's election (presumably if, for example, it were to find that Gore should have won). Supporters of the stay, such as Charles Fried, contend that the stay's validity was vindicated by the ultimate decision on the merits and that the only thing the stay prevented was a recount "done in an unconstitutional way".
[Perversion of Equal Protection Clause]
Some critics argued that the Court's decision was a perversion of the Equal Protection Clause and contrary to the political question doctrine. Scott Lemieux of University of Washington points out that if recounting votes without a uniform statewide standard were truly a violation of the Equal Protection Clause, this should have meant that the initial count, which also lacked a uniform standard, was itself unconstitutional.
Professor Charles Zelden faults the per curiam opinion in the case for, among other things, not declaring that the nation's electoral system required significant reform, and for not condemning administration of elections by part-time boards of elections dominated by partisan and unprofessional officials. Zelden concludes that the Court's failure to spotlight this critical flaw in American electoral democracy made a replay of Bush v. Gore more likely, not less likely, either in Florida or elsewhere.
[O'Connor's second thoughts]
In 2013, O'Connor, who had voted with the majority, said that the case "gave the court a less-than-perfect reputation". She added, "Maybe the court should have said, 'We're not going to take it, goodbye.' ... And probably the Supreme Court added to the problem at the end of the day."
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https://en.wikipedia.org/wiki/Bush_v._Gore
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