Studium

Legal Brief:
George W Bush, et al., Petitioners v. Albert Gore, Jr., et al.
531 U.S 98 (2000)

By Jessica Zeidman

Abstract: This legal brief is on the case of Bush v. Gore (531 U.S. 98 [2000]). It includes the facts of the case and the reasoning of the justices who submitted opinions. All opinions and information came directly from the text of the case. The writer provides no additional analysis or personal opinions. The case is 36 pages long and has been summarized to bring the most important facts of the case to this brief. It is available online at: http://supct.law.cornell.edu/supct/html/00-949.ZD3.html.

On November 8, 2000, the day after the presidential election, the Florida Division of Elections reported that Governor George W. Bush had received 2,909,135 votes and Vice President Albert Gore Jr. received 2,907,351 votes for president, with a margin of 1,784 in favor of Bush. Since Bush’s margin was less than one-half of one percent of votes cast, an automatic recount was conducted under Florida Statute 102.141 of the election code. The results of this recount gave Bush a narrow lead. Gore sought manual recounts in four Florida counties, pursuant to Florida’s election protest provisions of Florida Statute 102.166. A dispute then arose over the deadline for local counties to submit their election results to Secretary of State Kathleen Harris. She refused to waive the November 14 deadline. On November 26, 2000, the Florida Election Canvassing Commission certified the results of the election and declared Bush the winner of Florida’s 25 electoral votes, giving him the Presidency (Bush v. Gore, 531 U.S. 98 [2000]).

The following facts leading to this case are detailed in Bush v. Palm Beach County Canvassing Board (531 U.S. 70 [2000]). On November 27, Gore filed a complaint in Leon County Circuit Court contesting the certification. He sought relief based on Florida Statute 102.168, which provides that “receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election” is grounds for contest. The circuit court denied relief, stating Gore failed to meet his burden of proof. He appealed to the First District Court of Appeals, which sent the matter to the Florida Supreme Court.

The Florida Supreme Court granted judicial review and affirmed in part and reversed in part the case of Gore v. Harris (772 S. 2d 1243 [2000]). On December 8, 2000, the Supreme Court of Florida held that Gore satisfied his burden of proof under Florida Statutes 102.165 and 102.168 with respect to his electoral challenge, and that Miami-Dade County failed to tabulate by hand 9,000 ballots on which the machines had failed to detect a vote for president (under-votes). However, they rejected Gore’s challenge that 3,300 ballots in other counties were not “legal votes.” The Florida Supreme Court also stipulated that the circuit courts could order counties to conduct manual recounts for all under-votes. These are ballots that did not clearly indicate a vote for president on the counting machine employed at various precincts. The court further stipulated that a “legal vote” is “one in which there is a clear indication of the intent of the voter “ (Gore V. Harris, 772 So. 2d 1273 [2000]). The recounting of all 9,000 under-votes was to begin immediately in Miami-Dade County. On December 9, 2000, Bush and his vice-presidential candidate, Richard Cheney, filed an emergency application for a stay on the mandated recounts with the United States Supreme Court. On December 9, the Court granted certiorari and issued a stay of the recounting. On December 11, the U.S Supreme Court heard oral arguments and issued their decision the following day.

1. Whether the Florida Supreme Court established new standards for resolving presidential election contests, thereby violating Article 2 section 1 clause 2 of the United States Constitution and failing to comply with 3 U.S.C. 5.

2. Whether the use of standardless manual recounts violates the equal protection clause and due process clause of the Constitution.

1. The Court found that the Florida legislature intended to “participate fully in the federal election process,” as provided in 3 U.S.C. 5, which requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12, the “safe-harbor” deadline. Therefore, since there were no consistent recount procedures in place, the judgment of the Florida Supreme Court is reversed. Since it is unconstitutional for the recounts to pro- ceed without violating 3 U.S.C. 5 and the will of the Florida legisla ture, the certification of votes on November 26 is consistent with this opinion.

2. With regards to the equal protection clause, the per curiam opinion held 7-2 that the Florida Supreme Court adopted recount procedures that placed “arbitrary and disparate treatment on members of its elec- torate,” which is in violation of the equal protection clause of the Fourteenth Amendment and Harper v. Virginia Board of Election (383 U.S. 663, 665 [1966]).

Reasoning-per curiam decision by Justice Kennedy, joined by Chief Justice Rehnquist, Justice’s Scalia, Thomas, and O’Connor.

This per curiam decision is limited to the present case and does not create any broad precedent. Therefore, the following only applies to Bush v. Gore (531 U.S. 98, [2000]).

Once the franchise is granted to the electorate, the state may not, by arbitrary and disparate treatment, value one person’s vote over that of another (Harper v. Virginia Board of Election, 383 U.S. 663, 665 [1966]). When the Florida Supreme Court ordered the recounting to begin, it thus mandated that varying counties use inconsistent counting standards that “do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right.” The search for the intent of the voter can only be confined by specific rules and procedures that are designed to ensure uniform treatment of votes. The Florida Supreme Court gave no assurance of how and which votes would be counted or who would conduct the recounting of ballots. Justice Kennedy further states that, “The county canvassing boards were forced to pull together ad hoc teams comprised of judges from various circuits who had no previous training in handling and interpreting ballots.”

This Court assessed the recounting being performed was unconstitutional, and stayed the recounting so it could hear arguments. The Court concluded that the recounts being performed could not be conducted as mandated by the Florida Supreme Court because they were inconsistent with the requirements of equal protection and due process without substantial additional work. However, the Florida legislature intended to seek the “safe-harbor” benefits in 3 U.S.C. 5 which provides that the selection of electors be completed by December 12. Since that date was upon the Court, as in the following day after hearing oral arguments, it is evident that no fair recounts can take place before that date. Seven justices of the Court agreed that there are major constitutional problems with the recounts mandated by the Florida Supreme Court that demand a solution (see Souter, J. and Breyer, J., dissenting). However, they cannot be implemented without violating Florida Election Statute 102.168(8). This Court reversed the judgment of the Florida Supreme Court, thus declaring George W. Bush, president of the United States.

Concurrence by Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas joins.

This concurrence noted the importance of this case; specifically, the Court is not dealing with an ordinary election, but with the election for the president of the United States (see Burroughs v. United States, 290 U.S. 534, 545 [1934] and Anderson v. Celebrezze, 460 U.S. 780, 794-795 [1983] and McPherson v. Blacker, 146 U.S. 1 [1892]). These justices noted that the Florida legislature has delegated the authority to run elections and to oversee election disputes to the Secretary of State, Kathleen Harris, and to state circuit courts (Florida Statute 97.012(1) and 102.168(1)). These statutes explain that the general coherence of the legislative scheme may not be altered by judicial interpretation, except in Presidential elections. As proscribed by Article 2 of the U.S Constitution, the courts must respect the legislature’s wishes of appointing electors and obtaining “safe-harbor” benefits in 3 U.S.C. 5.

Additionally, the Florida Supreme Court’s interpretation of a “legal-vote” clearly went against the legislative scheme. According to Justice Rehnquist, “Florida’s statutory law cannot reasonably be thought to require the counting of improperly marked ballots.” Voters have been properly and clearly given voting instructions, through the use of sample ballots, working models of the voting machines employed at their precinct, and instructions to cleanly use punch-card ballots, as to ensure no chads are hanging on the back of the card. Therefore, there is no basis for reading the Florida statute as requiring the counting of improperly marked ballots, as the Florida Supreme Court instructed.

The Florida legislature has proscribed mechanisms for protesting election returns and for contesting certified election results. Florida Election Statutes 102.166 and 102.168 governs such protests. However, it mandates that all protests in a presidential election terminate on the date set by 3 U.S.C. 5 for concluding that state’s “final determination” of election controversies. This date, as indicated in 3 U.S.C. 5, is December 12, 2000. Yet, on December 8, four days before this deadline, the Florida Supreme Count ordered recounts of numerous under-votes. It is obvious that the entire recounting process could not possibly be completed by the safe-harbor deadline. Attempting to mandate the recounts of thousands of ballots four days before they were due is a significant departure from the statutory framework that was in place November 7, thus writing new election law.

Dissent by Justice Stevens, with whom Justice Ginsburg and Justice Breyer join.

The Constitution assigns to the states the primary responsibility for determining the manner of selecting the Presidential electors. (Article 2, section 1, clause 2). When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion.

The above dissenters argue that the Florida Supreme Court has all judicial authority and jurisdiction to review the laws implemented by the legislature, pursuant to Article 5 of the Florida Constitution. No federal intervention was required and judicial review should only be given to the Florida Supreme Court. This Court was wrong when it asserted that the Florida Supreme Court failed to provide in detail the manner in which the “intent of the voter” is to be determined as to rise to the level of a constitutional violation. While this Court has found it unconstitutional to weigh votes unequally (see Reynolds v. Sims, 377 U.S. 533, 568 [1964]), they have never questioned the substantive standards by which an individual state determines that a vote has been legally cast. County canvassing boards and other fact finders can be provided with the guidance to sufficiently determine the “intent of the voter.” This guidance and power is no less arbitrary than what ordinary citizens do everyday in courtrooms across the country when they participate in the jury process.

The majority in this case found an equal protection violation, but Justice Stevens disagrees with that position:

As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one’s vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate course of action would be to remand to Florida to allow more specific procedures for implementing the legislature’s uniform general standard to be established.

He argues that the majority in this case were interested in finality, and not the disenfranchisements of an unknown number of voters whose ballots reveal their intentions for president. The Court acts hastily because of the deadline set in 3 U.S.C. 5, yet those rules do not prohibit a state from counting what the majority concedes to be a legal vote until a bona fide winner is determined. Such was the case in 1960, when Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the “safe-harbor” deadline to which they prescribed. Therefore, nothing prevents the majority from remedying such equal protection violations they identified in the per curium decision, to eventually determine the intent of the voters. Additionally, Justice Stevens argues that the Florida Supreme Court did not make any substantive changes in Florida election law. It employed long established precedents that were consistent with relevant statutory provisions. “It did what courts do…it decided the case before it, in light of the legislature’s intent to leave no legally cast vote uncounted.”

Dissent by Justice Souter, with whom Justice Breyer, Justice Stevens, and Justice Ginsburg join.

These justices feel that the U.S Supreme Court should not have reviewed any cases from Florida’s electoral process:

If this Court had allowed the state to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S.C. 15. The case being before us, however, its resolution by the majority is another erroneous decision.

Justice Souter believes there are three central issues of this case:

1. Whether the state’s supreme court interpretation of the statute pro viding for a contest of the state election results somehow violates 3 U.S.C. 5.

2. Whether that Court’s construction of the state statutory provisions governing contests impermissibly changes a state law from what the state’s legislature has provided, in violation of Article 2, section 1, clause 2, of the U.S. Constitution.

3. Whether the manner of interpreting markings on disputed ballots fail ing to cause machines to register votes for president (the under-vote ballots) violates the equal protection or due process clauses of the Fourteenth Amendment.

For the first question, Justice Souter believes that 3 U.S.C. 5 should not be an issue. No state is required to conform to section five if it cannot do so, for any reason. If a dispute is to arise over which electors to use, it should be resolved only in Congress under 3 U.S.C. 15. With regards to the second issue present, the state supreme court acted within its bounds in interpreting its state’s legislation. The statutes being relied upon, Florida Statute 102.168 does not define what exactly a “legal vote” is. Thus, the Florida Supreme Court was required to do so and they looked to another election statute, 101.5614(5). This statute deals with damaged or defective ballots, which contains a provision stating that no vote shall be disregarded “if there is a clear indication of the intent of the voter as determined by a canvassing board.” The Florida Supreme Court read a “legal vote” to mean a vote recorded on a ballot indicating what the voter intended. Therefore, the Florida Supreme Court did not change state law; rather they interpreted it as they do with any other Florida law.

Justice Breyer only joins Justice Souter on his final issue. It deals with those ballots that have been termed “under-votes,” where different counties have varying rules for determining the intent of the voter. He feels that this alone is the only issue, and if left to the Florida courts without being interpreted, it would eventually come to Congress, as would any electoral vote dispute. However, since this did not happen, it is sensible for this Court to address it. Justice Souter claims that this case should be “remanded to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatment.” Justice Souter’s position is that Florida has until December 18, the date set for the electoral votes to be cast, to deal with this problem. He feels that the state has enough time to count all under-votes and over-votes. While there are disagreements over the exact number of contested ballots, “There is no justification for denying the State the opportunity to try to count all disputed ballots now.”

Dissent by Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join in part.

In Justice Ginsburg’s opinion she addressed the ongoing problem for the Court in attempting to interpret state law. She asserts, along with Justice Breyer, Justice Stevens, and Justice Souter, that this matter is for the Florida Supreme Court to determine. It is their duty to practice judicial review of laws that their legislature has enacted. She cites the case of Fiore v. White (528 U.S 23 [1999]) whereas, “instead of resolving the state-law question on which the federal claim depended, we certified the question to the Pennsylvania Supreme Court for that court to help determine the proper state-law predicate for our determination of the federal constitutional questions raised.” This principle is at the absolute core of federalism, which the framers of the Constitution sought to protect. The federal courts defer to state high courts interpretations of their state’s own law. If the other five members of this court were as attentive to the dual sovereign system, they would agree this case is for the Florida Supreme Court to decide, not the highest federal court.

She agrees with Justice Stevens that Bush has not presented a substantial equal protections claim. However, she doubts that the recount ordered by the Florida Supreme Court could yield a precise and final recount. She strongly agrees with Justice Breyer in that the December 12 deadline for bringing Florida’s electoral votes into compatibility with 3 U.S.C. 5 safe harbors lacks the significance the court assigns it. Justice Ginsburg states, “that if that date were to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both houses find the votes had not been regularly given as allowed in 3 U.S.C. 15.” This statute identifies other significant dates, such that Congress has until the January 6, to determine the validity of electoral votes. This Court is placing all of its authority in protecting the “safe-harbor” deadline and using time to constrain the intent and will of the voters of Florida to decide who will be President of the United States.

Dissent by Justice Breyer, with whom Justice Stevens and Justice Ginsburg join in part, and with whom Justice Souter joins in part.

In the exact words of Justice Breyer, “The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume. The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.”

Justice Breyer does concede the fact that since there was no uniform standard to determine the “intent of the voter,” the constraints of normal judicial review are impossible at this late date. However, this does not justify the majority’s ruling to halt the recount entirely. “An appropriate remedy would be, instead, 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.” On the “safe-harbor” deadline of December 12, this case should be remanded to the Florida courts to determine whether there is time to conduct a recount prior to December 18, the date set for Florida’s electors to meet.

Justice Breyer brings the point regarding halting the manual recounts to ensure that the uncounted legal votes will not be counted under arbitrary standards. “The manual recount would itself redress a problem of unequal treatment of ballots. But, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted.” Much of the controversy over the ballots are those done by punch-card systems, which are consistently disqualified because votes are not easily registered on counting machines. However, those counties that use computer systems are at an advantage because their votes are less likely to be disqualified, just based on the voting machines employed at their precinct.

Justice Breyer also notes that the selection of the president is of fundamental national importance, with a political and ideological emphasis, rather than a legal one. He argues that state courts are responsible for resolving electoral disputes (3 U.S.C. 5). However, this contradicts the Twelfth Amendment, which grants to Congress the authority to count electoral votes. According to Justice Breyer:

A federal statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden Presidential election, specifies that, after states have tried to resolve disputes (through “judicial” or other means), Congress is the body primarily authorized to resolve remaining disputes. See Electoral Count Act of 1887, 3 U.S.C. 5, 6, and 15. The legislative history of the Act makes clear its intent to commit the power to resolve such disputes to Congress, rather than the courts.

Justice Breyer’s opinion recalls a similar election in 1876 where the state submitted two slates of electors, and then Congress determined which slate to admit. If, as it did also in 1876, there is controversy about “which of two or more of such state authorities . . . is the lawful tribunal” authorized to appoint electors, then each house shall determine separately which votes are “supported by the decision of such State so authorized by its law.” If the two houses of Congress agree, the votes they have approved will be counted. If they disagree, then, “the votes of the electors whose appointment shall have been certified by the executive of the state, under the seal thereof, shall be counted.”

The framers of the Constitution and the 1886 Congress provided a detailed and comprehensive scheme for counting electoral votes and there is no reason for this Court to determine the outcome of a Presidential election. However difficult it would be for Congress to resolve electoral disputes, unlike judges, they are elected by the will of the people. This is the direct precedent for this case that has been ignored by the majority. In his closing arguments, Justice Breyer says, “Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure.”