Bush v. Gore Flashcards
Timeline
- 11/7/2000, 8:00 PM, Florida called for Gore
- 11/7/2000, 10:00 PM, call retracted
- 11/8/2000 2:15 AM, networks call Florida for Bush, Gore calls Bush to concede shortly thereafter
- 11/8/2000 3:30 AM, Gore calls Bush again to retract his concession, because he wants to issue a recount
Basic structure of Florida election law
Recount phase (before results are deemed, official) •Machine recount is automatically triggered when initial results are close •Candidates have the right to request hand recounts as well when results are really close
Contest phase
•After Secretary of State certifies the results, candidate can challenge the legitimacy of that certification
Recount Timeline
11/8 Bush lead over Gore is 1,784 out of 5,816,486 votes
•Triggered automatic machine recount under Florida law
11/9 Gore requests hand recounts in three Democratic counties (later added a fourth)
•Targeting “undervotes” and “overvotes”
- 11/14 Deadline for FL Secretary of State to certify returns
- State supreme court delays certification to 11/26 to include results from hand recounts
11/26 hand recounts still on going in Palm Beach County
•Secretary of State says she will not Palm Beach results
•Official results are 2,912,790 votes for Bush; 2,912,253 for Gore, a margin of victory of 537 votes.
Contest Timeline
12/7 Gore contests certification before the Florida Supreme Court
•Court orders immediate hand recount of all “undervotes” statewide
•Standard for recording votes is “the intent of the voter” (based in Florida election law)
•No deadline for recount to be completed
12/9 U.S. Supreme Court hears oral argument in Bush v. Gore
Recount Timeline pt 2- Safe Harbour
12/12 “Safe Harbor” deadline of 1887 Electoral Count Act
•If an election dispute remains pending past this deadline, the state’s electoral votes can be challenged in Congress
12/12 10:00 PM, Bush v. Gore handed down
•Gore concedes election
12/18 Florida members of the Electoral College meet and cast votes for Bush
1/6/2001 Congress meets in joint session to tally the results of the Electoral College
Three voting problems
Under votes
•Someone votes for Senator, Congressman, Mayor, etc. but does NOT vote for president
Over votes
•Someone votes for (or the machine THOUGHT they voted for) two presidential candidates
Flat out wrong votes
•Can’t be fixed even though everyone knew they were problematic
Types of Undervotes
Hanging door chad, swinging door chad, tri chad, dimpled chad, pregnant chad
Issues –Article II (Elections Clause)
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors
•Florida election law says it would like to comply with the Safe Harbor Deadline
•Did the Florida Supreme Court steal power from the legislature by allowing the recount to go past the Safe Harbor deadline?
Same law also 1) empowers the Florida courts to oversee recounts and 2) says the state shall provide manual recounts
Legal Issues –Equal Protection
Similarly punched ballots are counted differently because “intent of the voter” standard is too vague
•Implemented differently county to county and within a county (election official to election official)
Treats voters in four counties different than statewide (manual recount)
•Precedent based on Reynolds v. Sims–malapportionment case in which “one person, one vote” rule invented
Per curiam opinion (Problem identified + number of justices)
Identified an Equal Protection Problem
•Seven justices: Rehnquist, Scalia, Thomas, O’Connor, Kennedy, Souter, and Breyer
Goal of Florida law was to meet “Safe Harbor” deadline
•No remedy is possible before because the opinion is being handed down at 10:00 PM, and Safe Harbor ends at 11:59 PM
•Five justices: Rehnquist, Scalia, Thomas, O’Connor, and Kennedy
Per curiam opinion -Rule (Intent of the Voter)
“It must be remembered that ‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Reynolds v. Sims
Let’s explore malapportionment
•State has 2,000,000 people and 2 congressional districts
•District 1: 1,999,998
•District 2: These friginn’ guys
“Florida’s basic command for the count of legally cast votes is to consider the ‘intent of the voter.’ This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application.”
Broward County more forgiving than Palm Beach County
Yeah…about that…. (In reference to Percuriam Opinion rule) - no precedent
“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
The justices who signed the per curia did NOT want this rule to be considered a precedent for other recount cases
Breyer and Souter (Equal Protection Problem)
Agreed there was an Equal Protection problem
Remedy: let the recount continue past the Safe Harbor deadline, with additional instructions from the Florida courts about what the “intent of the voter” means
It’s ok if Congress ends up resolving this dispute on 1/6/2001
•That’s what the 12thAmendment is for
Rehnquist, Scalia, and Thomas concurring (Equal protection problem)
Agreed there was an Equal Protection problem
•Agreed that there was no way to fix it and meet the safe harbor deadline (statutory issue)
Went on to declare the Florida Supreme Court’s decision unconstitutional on Article II grounds
“[W]ithrespect to a Presidential election, [state courts] must be both mindful of the legislature’s role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate….”
Stevens and Ginsburg (did not think there was a violation of..)
Did not believe there was a violation of either the Elections Clause or the Equal Protection Clause
Remedy: let the recount continue past the Safe Harbor deadline, without additional instructions from the Florida courts
