Bush v. Gore is the US Supreme Court decision that has been credited with—or blamed for—ending the 2000 presidential election with its interrupted recount still unfinished. Bush and Gore, of course, were the two candidates: George W. Bush, the governor of Texas and son of the forty-first president, challenging the incumbent vice president, Al Gore. Bush v. Gore, the court case, is often used interchangeably as shorthand for Bush-versus-Gore, the entirety of the dispute over the outcome of the election.
But that dispute encompassed much more than just the US Supreme Court’s decision, which in truth did not even end the fight. Rather, the end came the next day, December 13, when Gore announced he would not attempt to renew the recount through additional proceedings in Florida’s courts. Had he done so, he and Bush conceivably might have pursued their fight all the way to Congress, as Hayes and Tilden had over the 1876 election. If Bush-versus-Gore had reached Congress it would have been the first real test of the impenetrably ambiguous Electoral Count Act of 1887, with unpredictable consequences. Thus it was Gore’s concession of December 13, and not the Court’s ruling of the previous day, that truly ended the fight for the presidency as a practical matter.
Bush v. Gore, the court case, moreover, concerned only one aspect of the overall vote-counting dispute: the so-called dimpled or hanging chads produced by incomplete puncturing of punch-card ballots. Bush v. Gore did not concern issues that had arisen over absentee ballots, which the Gore campaign abandoned in the wake of public criticism. Much more significantly, Bush v. Gore did not address the problem of the so-called butterfly ballot, which apparently caused thousands of Gore supporters to mistakenly cast their ballots instead for Pat Buchanan, the conservative pundit running as a minor-party candidate. Even Buchanan acknowledged, both then and subsequently, that Gore would have been president but for the butterfly ballot.
Nor did Bush v. Gore, as presented to the US Supreme Court, involve all the issues concerning dimpled and hanging chads. The US Supreme Court was not in a posture to decide what would have been a fair process for the counting of these chads, from the standpoint of either Florida’s legislature setting up that process in advance of the election or Florida’s judiciary attempting to make the best of the situation once confronted with the challenge of how to handle these chads given the state’s existing statutory framework. Instead, the US Supreme Court’s role was limited to considering whether the Florida Supreme Court had acted improperly in its treatment of the chads, and, if so, what to do about the impropriety at that juncture and given the date by which Florida’s recount procedures needed to end.
When considering the entirety of Bush-versus-Gore, it is worth disentangling three distinct lines of inquiry. First, did Florida’s electoral system accurately identify the aggregate preference of the eligible voters who attempted to record their preferences through that system, and, if not, why was Florida unable to remedy this inaccuracy? Second, what would have been a fair procedure for handling the chads that became the focus of the litigation, and insofar as the procedure used fell short, who is responsible for that failure and with what consequence? Third, insofar as the US Supreme Court did become involved in the dispute, did it act appropriately, and if not, what effect did its involvement ultimately have?
A Fair Count Does Not Guarantee an Accurate Result
Regarding the first line of inquiry, there can be little doubt that more Florida voters who cast ballots in the 2000 presidential election preferred Gore to Bush and that a well-functioning electoral system would have accurately captured this preference, thus making Gore the winner of the presidency. As already indicated, Palm Beach County’s infamous “butterfly ballot” alone sufficed to frustrate the aggregate preference of the participating and eligible electorate. Bush’s certified margin of victory ended up only 537 votes. But in Palm Beach County, Pat Buchanan received some 3,400 votes, over two thousand more than anywhere else in the state. Statistical analysis confirmed the common sense conclusion that the faulty ballot design caused this discrepancy, as would-be Gore voters inadvertently miscast their ballots for Buchanan. Although Gore’s name was the second listed on the left, the holes for voters to punch ran down the middle of the ballot, and the second hole was the one for Buchanan (whose name was the first on the right). As Buchanan himself explained, “My name right beside his on the butterfly ballot cost Al Gore thousands of votes—and the presidency.”
Gore’s lawyers understandably concluded that Florida law provided no judicial remedy for a mistaken electoral outcome caused by the butterfly ballot. In a suit filed on behalf of affected voters, the Florida Supreme Court unanimously concluded the ballot’s design, however problematic and consequential it was, did not violate state law. Even if it had, it is unclear what remedy the state court should have provided. There was insufficient time to hold a whole new election in Florida, since the state’s presidential electors were constitutionally required to cast their official Electoral College votes on the same day as the electors in all other states, which Congress had specified as Monday, December 18. Limiting a revote to just Palm Beach County would have raised grave constitutional questions, especially if Palm Beach voters who had not participated in the initial election were permitted to participate in the revote, but Florida voters elsewhere were not similarly given a second chance to cast a ballot.
Although statistics showed that the butterfly ballot deprived Gore of enough votes to cost him the election, it was difficult to see how a court could order a statistical adjustment to the actual count of the ballots as cast. Statistics, by nature, are probabilistic. Was a court to declare that but for the butterfly ballot, Gore maybe would have won by 1,500 votes, or maybe by only 1,000 votes, or maybe even by only 500, when the actual count of the votes recorded on the ballots themselves showed Bush, not Gore, winning by 537?
The Florida Supreme Court might have simply voided the election on account of the faulty butterfly ballot as well as myriad of other problems that undermined the outcome as an accurate reflection of the electorate’s aggregate preference. But as the court itself observed, voiding the election without a revote “would result in the disfranchisement of [all the state’s] voters.” While Florida’s legislature would be entitled to appoint the state’s presidential electors directly (to fill the gap left by voiding all the votes of the citizenry), there was no guarantee that electors chosen by the legislature would match the aggregate preference of the voters who dutifully cast their own ballots to choose the state’s presidential electors. Indeed, because Florida’s legislature was in Republican hands, the Gore campaign fully understood that voiding the election was worse than useless from its perspective. That judicial remedy would guarantee Bush’s receipt of Florida’s electoral votes by legislative fiat—and, with them, the presidency.
Whatever one thinks of the Florida Supreme Court’s decision regarding the butterfly ballot, this much is clear: a correct count of the ballots as cast is not necessarily the same as an accurate recording of the preferences that the voters wished to make. Even assuming for the moment that a full and fair recount of the votes on the eligible ballots actually cast would confirm Bush’s narrow margin over Gore, this assumption is not the same as saying that Bush would have won if Florida had employed a sound system for recording the preferences of the eligible voters who endeavored to participate in the presidential election. As was also true in 1876, an unbridgeable gap can sometimes exist between a fair counting and a fair casting of ballots. A fair recount of the votes on the ballots cannot undo the kind of casting problem caused by something like the butterfly ballot. That kind of problem can be cured—if at all—only by voiding the election altogether, and, in the case of a presidential election, leaving the void to be filled not by a revote of citizens, but by a political choice of the state’s legislature. Ultimately, however, whether or not that option would have been desirable, it was unavailable under Florida’s law according to the state’s supreme court.
Turning then to the second line of inquiry, and cognizant of the distinction between fair counting and fair casting, what would have been the procedures for a fair recount of Florida’s ballots in 2000 and what result would those procedures have produced? Bush’s position was that a fair recount, in fact, occurred pursuant to Florida law: it was the recounting of ballots by machine in the immediate aftermath of Election Day, and it confirmed Bush’s victory (albeit by a reduced margin). Bush’s team argued, not implausibly, that machines are inherently fairer than humans in counting ballots because machines, unlike humans, harbor no psychological preference for one candidate over the other. In any event, Bush’s team further contended, Florida law at the time required a machine recount but contained no provisions designed for a manual recount, by humans, of all ballots in a statewide election. Whatever might be suitable provisions for a manual recount if adopted legislatively in advance of an election, once the ballots had been cast in this particular election the only fair recount was the machine recount provided for by law.
Putting aside this powerful point, suppose for the moment that Florida’s judiciary had been explicitly empowered in advance to order a complete manual recount of all ballots cast in the state’s 2000 presidential election. A model for that kind of recount had occurred in Minnesota’s 1962 gubernatorial election, and Minnesota would repeat a similar version for its 2008 US Senate election. Thus we can imagine Florida having conducted a Minnesota-style recount in 2000, but ultimately we can make no confident judgment on whether that kind of recount would have yielded a result with Bush or Gore ahead.
There never was a manual inspection of all Florida ballots cast in 2000. The closest approximation was an examination by a media consortium of just the ballots that the machines classified as either “overvotes” (those improperly voted for two or more candidates in the same presidential race) or “undervotes” (those showing no choice of any presidential candidate). But this limited examination could not detect any ballots in which a voter wrote on a ballot in an effort to undo a mark for a candidate (where the machine picked up the mark, and recorded the ballot as cast for that candidate, while failing to detect the voter’s intent to nullify that mark). Moreover, although the media consortium’s review was an effort to encompass all overvotes and undervotes, localities were unable to deliver to the media consortium 1,345 ballots that the machines originally had classified as overvotes or undervotes and thus should have been part of the consortium’s review. These ballots had simply disappeared—but, had they still existed, might have made the difference.
The consortium’s limited review produced a result with Gore ahead by a miniscule margin of 107, as long as both overvotes and undervotes were included in its analysis. But overvotes were never part of the recount actually requested by Gore or ordered by the Florida Supreme Court—the problem of dimpled and hanging chads, the focus of the actual litigation in Florida, being a problem of undervotes and not overvotes. Conversely, the media consortium’s review did not replicate the conditions of real-world recount procedures, with lawyers for both sides being able to observe and potentially challenge ballot-specific determinations made by the humans conducting the recount. Moreover, being human, the individuals employed by the media consortium were unable to set aside their own partisan affiliations when evaluating ballots. For example, Democratic reviewers “were 25 percent more likely to deny a mark was for Bush” than Republican reviewers. In a real-world recount, these determinations would have been subject to judicial oversight and potentially reversed. The media consortium’s review cannot be considered to replicate a fair recount, and its results cannot be taken as evidence that either Gore or Bush would have prevailed if a fair manual recount, like those in Minnesota, had occurred in Florida.
Turning to the third line of inquiry, what should be said of the US Supreme Court’s involvement in this disputed presidential election? To appraise the Court’s role requires understanding the specific circumstances of the dispute in which it eventually occurred. For that understanding, one must consider how the dispute chaotically unfolded during the five weeks from Election Night, as the polls were closing, to the Court’s decision in Bush v. Gore.
The evening got off to a bad start when the networks, based on faulty exit polling, prematurely declared that Gore was going to win Florida. NBC, CBS, and ABC all made this announcement about ten minutes before the polls had even closed in the western Panhandle—an irresponsible mistake that made Republicans appropriately livid. Although it seems doubtful that Bush lost votes because of this snafu, CNN already had been announcing that the polls would close in Florida at 7:00 p.m. Eastern time, overlooking the fact that the Panhandle would continue voting until 8:00 p.m. Eastern, and in an election that ultimately came down to only a few hundred votes, it is not inconceivable that this earlier misreporting may have suppressed last-minute turnout in that part of the state. Of course, once the Bush campaign discovered CNN’s errors, it activated an emergency get-out-the-vote phone operation, making “tens of thousands of calls into Republican households in the Panhandle,” and thus may have boosted Republican turnout there as a result.
The media’s overall irresponsibility on Election Night 2000, however, ran much deeper than its initial miscall of Florida for Gore. The networks had accustomed themselves to being the pronouncers of presidential victory, as if they—and not government authorities at a later date—made the official declaration of which candidate won the White House. Even worse, in an era of enhanced competition between the traditional broadcast networks and the more recent cable news rivals, there had developed an intense frenzy to be the quickest to call a state for a candidate. Such was the environment when at 7:08 p.m. Eastern time, Dan Rather touted for CBS: “Let’s get one thing straight from the get go. . . . If we say somebody has carried a state, you can pretty much take it to the bank, book it, that that’s true.” With the networks conveying that kind of attitude, it is no wonder that the public was bewildered when later that same night the networks retracted their call of Florida for Gore, then gave the state—and the presidency—to Bush, and still later retracted that second call, leaving the impression that the election was somehow inappropriately up in the air.
But it was not only the networks that were caught by surprise on Election Night in 2000. The candidates, too, were unprepared for an election close enough to need a recount. They were unprepared both logistically and psychologically. Not only did they not have recount teams preassembled to fly to a state where they might be needed (as would occur in subsequent cycles); more significantly, they did not know how to handle themselves in the circumstance where there was no obvious winner on Election Night.
Gore never should have put himself in the situation where he needed to telephone Bush a second time to retract the concession that he had made to Bush in his first call. When the networks declared Florida for Bush (shortly after 2:15 a.m. Eastern), Gore told his advisers, “I want to concede,” and he proceeded to do so by phoning Bush. Gore’s mistake was not merely failing to check in with his own campaign staffers, who had very different numbers from the networks at that moment. His more fundamental mistake was thinking there needed to be a concession speech, from one candidate or the other, on Election Night based on whatever inevitably incomplete and uncertain numbers were then available, from whatever source. Instead, Gore could have taken the position, as Charles Evans Hughes did in 1916, that there was an official canvassing process to occur before a winner of the state was certified; unless he could be reasonably certain that the canvassing process would not alter the outcome, there was no reason not to let the process unfold before any candidate conceded that the election was over.
In his memoirs, Bush acknowledges getting “hot” as a result of Gore’s retraction. He also reveals that he was tempted to “go out and declare victory” anyway, until his brother Jeb persuaded him otherwise. The candor of Bush’s memoirs in these respects is commendable, but his attitude at the time shows that he, too, was not emotionally prepared for a razor-thin (and thus indeterminate) result on Election Night. Like Gore, he believed that the election should be finished on Election Night, with winner and loser conclusively determined based on whichever way the networks added up the best numbers available at the end of the night. He was not oriented to the view, as any candidate should be, that the outcome of an especially competitive election may require waiting for the official result at the end of the canvass.
But for Bush this misimpression was not consequential, as it was for Gore. After all, Gore was the one who had conceded that he had lost the election. Even though that concession had no official status in Florida’s canvassing procedure, it automatically put Gore on the defensive throughout the entire subsequent vote-counting process. In retracting the concession, Gore tried to claim that Florida was “too close to call,” but he himself already had made Bush the presumptive winner whose presumptive victory Gore was attempting to undo. It was an entirely self-inflicted wound.
A Hand Recount or Not? That Was the Question
On Wednesday morning, November 8, the Florida secretary of state’s numbers showed a gap of only 1,784 votes between the two candidates, with Bush in the lead. Almost 6 million ballots had been cast, making the lead about 0.03% of the total—an order of magnitude far smaller than the 0.5% trigger of a mandatory machine recount as set forth in Florida’s election code at the time. By the next day, as a result of that machine recount, Bush’s lead had narrowed to only 327 ballots. It grew again to 930 votes once overseas and military absentee ballots were added eight days later (on Friday, November 17).
The competing strategic imperatives of the two campaigns were clear. For Bush, the objective was to stay ahead by avoiding any additional recounting of ballots. Gore, being behind, had exactly the opposite goal: to figure out a way to have another recount, a manual one to supplement the one that already had occurred by machine.
The relevant Florida statutes were maddeningly unclear on whether or not a manual recount should occur in a statewide election. The statutes provided two ways in which a candidate who was behind after the machine recount, like Gore, could challenge the result. The first, called a “protest,” was an administrative procedure that occurred as part of the canvass before the outcome of the election was officially certified. The second, called a “contest,” was a judicial lawsuit after certification to attack that official result as erroneous.
Certification was a pivotal, and hugely important, point in the whole process. Unlike anything that occurred on Election Night, it was the official—and legally authoritative—declaration of the winner. After certification, the losing candidate truly would be attempting to take away a victory that the law had determined belonged to the opposing candidate. It is therefore understandable that Bush’s team wanted to convert his lead, however small, into a certified victory as quickly as possible, whereas Gore’s strategists wanted to prevent Bush from becoming the certified winner. In the first week of the vote-counting fight, Gore’s advisers did not think that he could survive a certified Bush victory. Especially in the aftermath of Gore’s retracted concession on Election Night, they thought that the public pressure for Gore to reinstate that concession after certification of a Bush victory would be too withering to withstand.
The protest statute provided that a candidate could request a manual recount, but said that those requests were to be directed to “the county canvassing board,” as if it applied only to local and not statewide elections. Moreover, the statute said that the county canvassing board may choose to conduct a manual recount, but did not say that it must do so. The statute also seemed to suggest that a countywide manual recount might be appropriate only in the event of “an error in the vote tabulation,” understood to mean a technological failure that prevented the voting machines from tabulating the ballots in the way that they were designed to do.
Interpreted this way, the statute would not contemplate a countywide recount for the purpose of reviewing ballots for which the machines, operating as designed, failed to detect a vote. These were the undervotes, which were known and expected to occur in every election with machines operating exactly as designed. Undervotes regularly occurred using both optical scan or punch card ballots, although they were more prevalent with the latter, a more primitive form of voting technology. With an optical-scan ballot, on which voters filled in ovals (like standardized tests), sometimes the oval was not filled in well enough for the scanner to detect. With a punch-card ballot, voters were required to punch out small perforated pieces of their ballots—these pieces were called chads—so that the machine could detect the holes that the voters had created by dislodging the chads. With some frequency, however, voters would fail to dislodge their chads completely, causing the machines to miss votes that the voters had intended.
The question, then, was whether it was appropriate in a statewide election to use the protest procedure to conduct a manual recount, where the machines were working as designed, for the purpose of discovering undervotes on either optical-scan or punch-card ballots that the machines had failed to detect. In furtherance of its strategic objective, the Bush campaign took the position that, no, to do so would not be a proper use of the protest procedure. The Gore campaign, by contrast, needed there to be a manual recount in search of undervotes undetected by the machines; otherwise, it was all over, and Gore had lost. Accordingly, the Gore campaign pressed for an interpretation of the protest statute that, not limited to errors in the functioning of the vote-tabulation machinery, would permit the manual retrieval of undervotes.
Another problem for the Gore campaign was that Secretary of State Katherine Harris, in partisan alliance with the Bush campaign, adopted the more restrictive interpretation of the statute. Even if this interpretation was the more natural reading of the statute’s text, and thus would have been adopted by a neutral arbiter, Harris was no neutral. In what appeared to be a flagrant breach of professional ethics, she was consulting with the Bush campaign in deciding how to exercise her supervisory authority over the canvassing process. When Gore asked four counties to look for undervotes, Harris told them that under the statute it was unlawful for them to do so.
Even worse from Gore’s perspective was the deadline that the state’s statutes set for completion and certification of the canvass. In two separate places, the statutes stated that the secretary of state must receive the returns from each county “by 5 p.m. on the seventh day following an election." This same deadline applied whether or not a county chose to conduct a manual recount as part of a protest. Even if a county was willing to go ahead and search for undervotes during the canvass (in contravention of the secretary of state’s instructions), the county needed to complete this search by close of business on November 14, one week after Election Day. That tight schedule did not leave much chance for a large urban county, like Miami-Dade, to complete a countywide manual recount, further suggesting that the protest procedure was not suited to a search for undervotes.
Furthermore, the statutes seemed to be quite strict about this deadline. One of the two relevant statutes said that the secretary of state “shall” ignore “all missing counties” and proceed forthwith to a statewide certification of the election based only on the county returns in compliance with the deadline. The other statute was more lenient, saying that the secretary “may” ignore a county’s late returns and proceed immediately with the statewide certification, leaving that county out of the final results. Either way, the statutes did not require the secretary to wait past the deadline for a county to finish looking for undervotes in response to a protest.
In hindsight, Gore’s strategic objective would have been better served by skipping the protest procedure and moving straight to a contest. Although that alternative approach would have required Gore to acquiesce in the certification of Bush’s victory, it would have permitted more time for the contest to unfold. More significantly, it would have avoided Gore’s having to ask the Florida Supreme Court to adopt a strained and dubious interpretation of the relevant state statutes—an interpretation that cast the Florida Supreme Court in an extremely unfavorable light, especially in the eyes of the more powerful US Supreme Court. But Gore felt compelled to fight a certification of Bush’s victory at all costs. To the extent that he did so because of his earlier retracted concession, then it was indeed that concession that put him in a posture from which he could not recover.
Gore’s Self-Defeating Use of the Protest Procedure
The three counties that Gore most cared about were Miami-Dade, Broward, and Palm Beach. Located at the southeastern end of the state, these were the three most populous of Florida’s 67 counties, with Democratic-leaning constituencies that provided Gore the greatest potential to cut Bush’s lead by uncovering undervotes. Gore was heavily criticized for seeking manual recounts in only four counties. (Volusia was included because of oddities in its fluctuating Election Night returns.) His defense was that the protest statute required him to ask on a county-by-county basis.
None of Gore’s three targeted counties came close to completing a manual recount by the statute’s deadline of 5 p.m. on Tuesday, November 14. Miami-Dade and Broward had not even agreed to look for undervotes. Palm Beach, which had started, reversed course after learning of Secretary of State Harris’s disapproval. When Secretary Harris announced the next day (Wednesday, November 15) that she would not accept any late-arriving amended returns based on manual recounts—and would instead certify the election on Saturday, November 18, once all the overseas and military ballots were in—Gore made the fateful decision to challenge her decision rather than proceeding directly to a judicial contest of that certification.
Terry Lewis, the Tallahassee-based state judge to whom the case had been assigned, upheld Secretary Harris’s decision to reject any late-arriving recounts. Earlier, he had required Harris to provide reasons for her decision, but since the relevant Florida statutes said that she either “shall” or “may” ignore late returns, Judge Lewis accepted the reasons that she gave. Her primary point was that, as long as the voting machines had functioned as designed, a manual search for undervotes was not a valid excuse for late returns.
Gore’s team appealed Judge Lewis’s decision to the Florida Supreme Court, which extended the protest period by requiring Harris to accept any amended returns resulting from manual recounts as long as they were complete by Sunday, November 26. This new deadline left little time for conducting a subsequent judicial contest, given that the state’s presidential electors were constitutionally required to cast their official Electoral College votes on Monday, December 18 (only three weeks later). Moreover, the Electoral Count Act of 1887 gave states a safe harbor deadline of six days earlier: if Florida could resolve all disputes over the appointment of its presidential electors before Tuesday, December 12 (using rules and procedures the state had promulgated in advance of Election Day), then Congress promised to abide by the state’s resolution of those disputes. Everyone, including the Gore legal team, presumed that Florida would want to take advantage of this safe harbor deadline. Strategically, the Gore team stressed the safe harbor deadline’s importance: they did not want the US House of Representatives, controlled by Republicans, to be entitled to disavow a Florida-based recount favorable to Gore. But the new protest-phase deadline of Sunday, November 26, then left only sixteen days to hold an entire judicial contest of the election, including appeals, before the safe harbor window slammed shut.
Extending the deadline turned out, for Gore, to be a waste of precious time. Broward County managed to finish a manual recount by then, but Palm Beach County did not (missing by a couple of hours). Most famously, Miami-Dade halted its manual recount after the so-called Brooks Brothers riot, in which Republican protesters—fearful that fraud was occurring in a process largely shielded from public view on the nineteenth floor of Miami’s Clark Center office tower—vociferously demanded a stop to the recount. On November 26, with no new numbers from either Miami-Dade or Palm Beach, Katherine Harris certified Bush’s presidential electors as victorious. The certification that Gore’s legal team had fought so hard to avoid happened eight days after it would have without the deadline’s extension.
Moreover, the Florida Supreme Court’s opinion setting the new deadline was an exercise of judicial gymnastics that made the US Supreme Court suspicious of the state court’s motives. The Florida Supreme Court more than doubled the explicit statutory deadline of “5 p.m. on the seventh day after the election” to the nineteenth day after the election. Whereas the statutory language said that the secretary either “shall” or “may” ignore local returns submitted more than a week after Election Day, the Florida Supreme Court now insisted the opposite: the secretary must not ignore local returns as long as they arrive within three weeks after Election Day.
The Florida Supreme Court claimed that it was eschewing a “hyper-technical” reading of the statutes in order to protect the constitutionally guaranteed right to vote. But the court never explained how constitutional law required a manual search for undervotes as part of the protest phase of Florida’s electoral process, to the point of necessitating such a drastic alteration of the statutory language. Was it unconstitutional, as distinct from bad policy, to confine the protest phase to a machine recount in those situations where the machines were working as designed? The Florida Supreme Court seemed to assume that the answer to this question was yes, although constitutional law had never been understood to require any recount at all.
James Baker, the chief of Bush’s legal team, recommended that Bush take the case to the US Supreme Court. Other Bush lawyers were dubious about this move. “What’s the federal question?” they essentially asked, knowing that the US Supreme Court is jurisdictionally limited to questions of federal rather than state law. The Florida Supreme Court’s opinion, however aberrant it might be, was premised mostly on state rather than federal law. (The general references in its opinion to the constitutional right to vote could be construed to implicate federal as well as state constitutional principles, but otherwise it seemed to be an exegesis of state law.) Furthermore, even if there were a federal question for the US Supreme Court to consider, why would the Court take the case? The US Supreme Court has discretionary jurisdiction, meaning it is entirely free to accept or decline cases within its power to decide. Because the Court might wish not to ensnare itself in the process of picking the next president, most seasoned Court-watchers predicted the Court would decline to review the Florida Supreme Court’s decision. But Bush took Baker’s advice to go to the US Supreme Court, and Baker was correct.
On Monday, December 4, the US Supreme Court issued a unanimous opinion vacating the Florida Supreme Court’s decision and remanding it for clarification. The federal high Court diplomatically, but pointedly, observed that it could not discern the basis for the state court’s decision. The federal Court, in particular, was concerned that the state court had ignored the federal constitutional provision in Article Two that gave the state legislature the authority to determine the method by which to appoint the state’s presidential electors. If the state court had so distorted Florida’s statutory deadline as to contradict the Florida legislature’s chosen method for appointing the state’s presidential electors, then the state court might have violated the state legislature’s authority vested by Article Two.
The US Supreme Court’s opinion was a shot across the bow, warning the Florida court to avoid any further signs of inappropriate bias in favor of Gore (including by means of deviating from preestablished rules).
Florida law was unclear on the circumstances that might justify a manual recount as part of a contest. The statute provided that “grounds for contesting an election” included “rejection of a number of legal votes sufficient to change or place in doubt the result of the election.” To enforce this substantive standard, the statute gave the court wide-ranging powers: “The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.” Together, these statutory provisions appeared to grant the contest court the authority to require a manual recount in order to search for undervotes.
Cutting the other way, however, was the fact that the contest statute provided no guidance for when a court-ordered manual recount would—or would not—be appropriate. In a statewide election, was a contestant automatically entitled to a statewide manual recount merely by filing the contest? Surely not. What if the number of apparent undervotes exceeded the certified winner’s margin of victory; did that fact alone warrant a manual recount in a contest? Without any evidence on point, there was no reason to believe that the mere existence of undervotes would benefit one candidate or the other. Indeed, one might presume the undervotes randomly would be split 50–50 between two candidates. Thus even with an estimated 60,000 undervotes, if Bush and Gore split the undervotes evenly, Gore would not overcome Bush’s 537-vote victory. Since Gore necessarily would bear the burden of proof in a contest (as he was seeking to overturn Bush’s certified victory), was he entitled to a manual recount in a contest if all he showed was a large number of undervotes—without any additional evidence that the undervotes would split more favorably in his direction, enough to overcome Bush’s 537-vote advantage? That question would prove crucial.
On Monday, November 27 (the day immediately after Sunday’s certification), Gore filed the contest that his advisers had wrongly thought the public would not tolerate. It turned out that the public had much more patience than the pundits had predicted. But Gore still did not seek a statewide manual recount. Instead, his contest asked only for a completion of Miami-Dade’s manual recount as well as a revision of Palm Beach’s recount using a more favorable standard for identifying undervotes on punch-card ballots.
The contest was assigned to Judge Sanders Sauls, who held a two-day trial over the weekend of December 2 and 3. Gore’s expert witnesses testified to the existence of retrievable undervotes but did not establish a factual basis for believing that Gore rather than Bush would receive more of them. Bush’s expert, conversely, testified to the expectation that these undervotes would be randomly—and thus evenly—distributed between the two candidates.
On Monday, December 4, Judge Sauls rejected Gore’s contest entirely. Invoking precedent, he declared that Gore as plaintiff was obligated to show “a reasonable probability that the results of the election would have been changed” as a consequence of the uncounted undervotes. Gore had failed this essential obligation: “In this case, there is no credible statistical evidence, and no other competent substantial evidence to establish by a preponderance of a reasonable probability that the results of the statewide election in the State of Florida would be different from the result which had been certified.”
Judge Sauls’s interpretation of the statute was reasonable. Otherwise, a contestant could demand a recount just because there were more undervotes than the certified margin of victory. Nonetheless, the Florida Supreme Court repudiated it on December 8. This time, however, the Florida Supreme Court was not unanimous, but instead split 4–3.
The majority opinion’s interpretation of the contest statute permitted the contestant to plead selected uncounted votes that were enough “to place in doubt the result of the election.” Moreover, the majority said that Gore was entitled to have the court assume—without any obligation to provide supporting evidence—that all of the targeted undervotes were cast for him rather than Bush:
A person authorized to contest an election is required to demonstrate that there have been legal votes cast in the election that have not been counted (here characterized as “undervotes” or “no vote registered” ballots) and that available data shows that a number of legal votes would be recovered from the entire pool of the subject ballots which, if cast for the unsuccessful candidate, would change or place in doubt the result of the election.
It was a huge assumption, and the majority gave no explanation for why it was appropriate, compared to the alternative assumption that undervotes might split evenly between the two candidates.
The majority did say that it was necessary to examine all undervotes statewide, not just those in Miami-Dade, and thus remanded the case for a statewide recount. The majority, however, rejected the idea of redoing the recount in Palm Beach pursuant to a more lenient standard for recovering undervotes. This particular aspect of the majority’s ruling would become all-important, because it indicated that different localities were entitled to conduct their recounts according to different standards for evaluating undervotes. According to the majority opinion, no statewide uniform standard was required.
Justice Major Harding wrote the main dissent, agreeing with Judge Sauls that Gore had failed to meet his “obligation to show, by a preponderance of the evidence, that the outcome of the statewide election would likely be changed” by a recount of undervotes. Chief Justice Wells added his own impassioned dissent, inviting the US Supreme Court to intervene again. Wells claimed that the majority opinion violated the US Constitution because it provided no standard for conducting the statewide recount that it ordered. Wells also argued that it was wrong for the majority’s recount to exclude overvotes. In short, Chief Justice Wells teed up the equal protection issue on which the US Supreme Court would rely to nullify the majority’s recount.
The case went back to Judge Sauls, who immediately stepped aside, and it was reassigned to Judge Terry Lewis. Now the case needed to move at hyperspeed to meet the safe harbor deadline, just four days away. At 8 p.m. on Friday, December 8, just a few hours after the Florida Supreme Court’s order requiring the statewide recount of undervotes, Judge Lewis held a hearing on what the standard for reviewing those undervotes should be. In particular, he wanted to know how the recount should handle the dimpled and hanging chads on the punch-card ballots.
Different localities had adopted different standards for these chads. A “two-corner rule,” which required at least two corners of a chad to be dangling in order to count, was much stricter than the “sunshine standard,” which would count any chad that let light show through. This sunshine standard in turn was stricter than one that was willing to count any dimpled chad where the “totality of the circumstances” indicated that it reflected the voter’s intent to vote for that candidate. Broward County had changed standards in the middle of its recount, moving from the two-corner rule to the most lenient dimpled chad standard. Likewise, Palm Beach adjusted its standard in response to a state trial judge’s ruling that it should use the most lenient standard, but it did not go back and review ballots previously evaluated under a stricter standard.
In light of all this, Judge Lewis was asking a genuinely vexing question when he pressed the lawyers for what standard to apply. Gore’s team wanted the most lenient standard. Bush’s attorney argued that to adopt any specific standard now would be to change the law after Election Day, thereby depriving Florida of safe harbor status. Judge Lewis decided against setting a specific standard, implying only “if in doubt, throw it out.” He ordered all counties to complete their recounts by 2 p.m. Sunday. He said he was available to resolve any disputes, including on how to discern a voter’s intent under the general standard that was left unspecified.
The next morning, Saturday, December 9, the recount began. But Bush had already sought an emergency stay from the US Supreme Court, and at 2:40 p.m. on Saturday afternoon, the Court by a 5–4 vote granted the stay. As soon as Judge Lewis heard the news, he halted the recount. Although the recount had been underway for just a few hours, it was moving at a pace that gave it a reasonable prospect of meeting Judge Lewis’s deadline the next afternoon. But the stay, as was its purpose, blocked that from happening.
Although the US Supreme Court’s decision on the merits would come three days later, it was the Court’s stay order of December 9 that prevented completion of the recount by the safe harbor deadline. If the Court had let the recount continue while deliberating its merits, the Court still could have nullified the recount (thus reinstating the certified result) before expiration of the deadline on Tuesday, December 12. But by stopping the recount while deliberating its merits, the Court precluded the possibility of reinstating the recount in time to meet the deadline even if the Court ended up validating the recount on the merits. In this way, the stay order predetermined the subsequent merits decision, even though stay orders are supposed to do the opposite (the purpose of a stay being to freeze a situation in place so that events while the case is pending do not overtake the significance of the subsequent decision on the merits).
Despite being the decisive ruling in the case, the stay order contained no opinion from the Court to justify its imposition. Justice Stevens, on behalf of the four dissenters, captured the essence of the problem in saying the stay was “tantamount to a decision on the merits in favor of the applicants.” Justice Scalia, writing solely for himself, felt obligated to defend the stay: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” Justice Scalia’s idea seems to be that if Gore took the lead based on an improper recount, the public wrongly would think Gore had a valid claim to the office, and that no subsequent judicial repudiation of the recount could erase the erroneous public perception—making it impossible to reinstate Bush’s certified victory so that it would be equivalent to Gore never having taken the lead. “Count first, and rule upon legality afterwards,” Justice Scalia quipped, “is not a recipe for producing election results that have the public acceptance that democratic stability requires.” But with the safe harbor deadline just three days away, “rule on the legality first, and count afterwards” was not an option.
Although the merits appeared moot after the stay, there was a moment during the oral argument at the Court when suddenly it seemed as if Justice Kennedy, the pivotal member of the 5–4 tribunal, might have second thoughts. This moment did not last long. When David Boies, Gore’s celebrated attorney, took his turn at the podium, it quickly became clear that Boies had no answer for the equal protection concern that Justice Kennedy pressed him on. Indeed, Boies even conceded that “you might have an Equal Protection problem” given Kennedy’s premise, which he emphasized repeatedly, that in evaluating the disputed chads Florida had been using at least “two objective standards and they were different.”
Thus, when the Court released its merits decision at 10 p.m. on Tuesday, December 12 (the date of the safe harbor deadline), it was not surprising that the Court ruled that Florida’s recount procedures violated equal protection. The key to the Court’s equal protection analysis, as Kennedy’s questioning of Boies had anticipated, was that the inspection of chads “can be confined by specific rules designed to assure uniform treatment.” Being “practicable,” the Court concluded that this specification was “necessary” to “avoid the arbitrary and disparate treatment” of voters. Because the one-person-one-vote principle of Reynolds v. Sims required safeguarding the right to vote from “arbitrary and disparate treatment,” it followed that this principle could not permit “the standards for accepting or rejecting contested ballots [to] vary not only from county to county but indeed within a single county from one recount team to another”—as Boies had conceded that they might. Indeed, on this point, the Court was 7–2, not 5–4, as Justices Souter and Breyer agreed with the five conservative Justices (including Kennedy) about the presence of an equal protection problem.
Some have called the Court’s equal protection analysis unprincipled and self-consciously so. They point particularly to one sentence of the Court’s opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” On due reflection, however, that sentence is nothing more than an expression of the Court’s conventional methodology, in the tradition of the common law, of taking cases one at a time, judging each on its own facts, and thus issuing binding pronouncements of precedent no broader than necessary to dispose of the particular case at hand. When one considers all the other areas of constitutional law in which the Court has rendered very fact-specific judgments—determining what searches or seizures are unreasonable, what official uses of religious symbolism amount to an establishment of religion, or what pornographic images cross the line into forbidden obscenity (“I know it when I see it”)—one must recognize that there was nothing aberrant about the Court’s caution in Bush v. Gore that equal protection analysis of a state’s ballot-counting procedures would be highly fact-dependent.
More controversial than its equal protection reasoning was the Court’s remedy for the equal protection violation that it found. Rather than simply remanding the case for the Florida Supreme Court to determine whether a recount was possible notwithstanding the state’s apparent desire to meet the safe harbor deadline, the US Supreme Court ordered that no more recounting occur. But like its stay of three days earlier, this order was not the normal way to proceed. Typically, after identifying an error of federal constitutional law committed by a state supreme court, the US Supreme Court returns the case to the state court for further proceedings cleansed of the error. In Bush v. Gore, this conventional approach dictated giving the Florida Supreme Court a chance to decide whether under state law it was more important to meet the safe harbor deadline or to attempt another recount consistent with equal protection. But the US Supreme Court in Bush v. Gore refused to give the Florida Supreme Court another chance. On this point, as with the stay, the federal Court fractured 5–4.
The four dissenters cogently argued: “Whether there is time to conduct a recount prior to December 18, when the electors are scheduled to meet, is a matter for the state courts to decide.” The majority’s only response was that the dissent’s “proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18—contemplates action in violation of Florida Election Code,” given Florida’s own desire for safe harbor status. But that meager response exposed that the majority was resting its remedial decree on a proposition of state law, which the federal Court had no authority to determine.
Behind the scenes, while the case was pending, the four dissenters had attempted to persuade Justice Kennedy to conform to the conventional practice of a remand on the state-law issue. But Kennedy would not be swayed. Kennedy “would later explain that the outcome had to do with bringing a renegade court to heel”—the renegade court clearly being the Florida Supreme Court in his view. That renegade court could not have another opportunity to concoct a procedure, one previously unknown to state law, evidently aimed at manufacturing a victory for Gore.
Despite the 5–4 directive against any new recount, Gore contemplated going back to the Florida Supreme Court for a ruling on the state-law question that was its prerogative to decide—namely (notwithstanding the fact that the safe harbor deadline was now past) whether Florida law allowed for a recount during the six days before the constitutionally mandated meeting of the presidential electors on Monday, December 18. But the next morning Gore decided against taking that step, which undoubtedly would have escalated the entire controversy immensely, by necessarily challenging the authority of the US Supreme Court for its no-new-recount order and setting up the potential for an ultimate showdown in Congress. Instead, Gore decided that now he would definitively and irrevocably concede. And so he did, in a pitch-perfect speech that began: “Just moments ago I spoke with George W. Bush and congratulated him on becoming the 43rd president of the United States. And I promised him that I wouldn’t call him back this time.”
Eloquent throughout, Gore’s concession speech contained a passage encapsulating a theme of this book:
History gives us many examples of contests as hotly debated, as fiercely fought, with their own challenges to the popular will. Other disputes have dragged on for weeks before reaching resolution, and each time both victor and vanquished have accepted the result peacefully and in a spirit of reconciliation. So let it be with us.
Gore closed, as he began, with a graceful touch of self-deprecating humor: “And now, my friends, in a phrase I once addressed to others, it’s time for me to go.” Gore’s concession did not end the election officially. In fact, as vice president, Gore was required to preside over the official congressional count of electoral votes on January 6, 2001, pursuant to the Twelfth Amendment. But his concession made his official pronouncement of Bush’s victory purely ceremonial. His role on January 6 would have been entirely different, and altogether problematic, if he had been willing (and, with the aid of another recount ordered by the Florida Supreme Court, able) to sustain his fight until then. Imagine the national nightmare if, echoing the impasse of 1876, Gore had claimed that the Twelfth Amendment gave him, as president of the Senate, the authority to decide which of conflicting electoral votes from Florida were the ones to count—while simultaneously the House of Representatives, in Republican hands, propounded an interpretation of the Twelfth Amendment that empowered it to elect Bush directly itself. Gore’s concession of December 13 put to rest fears that any such nightmare scenario might develop. Consequently, it was Gore’s concession—not the official pronouncement of January 6, nor the Court’s rulings in Bush v. Gore—that ended the dispute over the 2000 presidential election.
Some have suggested that if Gore had opened up another front he could have won the vote-counting war. That other front would have concerned military absentee ballots. Florida law (as a result of a consent decree in a previous federal court lawsuit) permitted these ballots to arrive up to ten days after Election Day, but they needed to have been cast on or before Election Day. Florida law further required that as evidence of having been cast on time, they needed to be either postmarked or dated and signed by Election Day.
Gore’s attorneys initially had been inclined to challenge any military ballot that lacked either a postmark or a dated signature. But a memo outlining the approach leaked, and on Meet the Press Joe Lieberman (Gore’s running mate) disavowed the idea. As a result, Bush’s team was able to convince local canvassing boards in Republican territories to count military ballots that they otherwise would have rejected.
There were not enough of these ballots, however, to account for Bush’s ultimate victory. According to a New York Times analysis, there were only 294 ballots counted that lacked either a postmark or a dated signature—not nearly enough to erase Bush’s 537-vote margin of victory through a disqualification of these, even assuming all had been cast for Bush, which of course would be an untenable assumption. Taking account of all military and overseas ballots that were counted despite flaws under Florida law complicates the analysis a bit, but points to the same conclusion. There were 680 of these flawed ballots. Some were military ballots with a domestic rather than foreign postmark. Others lacked the signature of a witness. Still more had a variety of problems. Despite these defects, it is not at all clear that Florida law called for their rejection. Earlier, the Florida Supreme Court had adopted the substantial compliance standard in favor of leniency in the evaluating of such ballots. Still, even if all 680 of these ballots had been rejected, it is highly doubtful that Gore would have come out ahead. To be sure, 680 is more than 537. But 609 of these ballots would have had to have been cast for Bush in order for them to have been outcome-determinative, which would have amounted to a highly improbable 89.5% in Bush’s favor.
There was another issue that arose over absentee ballots. It turned out that some local election officials had acted improperly in how they handled applications for absentee ballots. They had wrongly favored Republican voters in fixing flaws in these applications. But the voters themselves had done nothing wrong, and there were no defects in their absentee ballot submissions as distinct from their antecedent applications. Thus it would have been unduly draconian to disqualify those ballots—and thereby disenfranchise the innocent voters—solely because the officials had acted improperly with respect to the applications.
Even so, some of Gore’s attorneys, including David Boies, wanted to challenge those absentee ballots. Gore refused. There were more than enough of them that excluding them would have made a difference, but they never would have been excluded. Indeed, the courts rejected efforts by litigants unaffiliated with Gore’s campaign to exclude these votes.
Boies says he would have included a claim to disqualify these ballots in Gore’s contest if only to force the courts to be consistent between accepting these ballots despite their defects and accepting uncounted chads that the machines could not read. Boies says the juxtaposition of the two kinds of ballots would show that Republicans could not have it both ways: accepting these absentee ballots while simultaneously rejecting the machine-unreadable chads. (This strategy is reminiscent of the one that Democrats used in the Hayes-Tilden dispute, when they added Oregon into the mix in the hope that doing so would force the Electoral Commission to agree with their position on either Oregon or the other disputed states. But that strategy had not worked then, and Boies’s updated version of it would not have worked in 2000.) Boies overlooks an obvious distinction: the problem with the absentee ballot applications did not involve any deficiency on the part of the voter, whereas the voters at least contributed in part to the failure to punch their chads all the way through. There seems little reason to think that including this absentee ballot issue in any way would have affected the equal protection decision of the US Supreme Court concerning the lack of an adequate standard for the evaluation of chads.
Thus the ancillary skirmishes over absentee ballots ultimately did not factor in the outcome of the 2000 presidential election. But disputes over absentee ballots would become significant in the decade that followed.
With the story of Bush-versus-Gore now told, we can return to questions we raised at the outset. Was the counting of Florida’s presidential ballots unfair, and, if so, is the US Supreme Court to be blamed (to any extent) for that unfairness? One certainly can fault the US Supreme Court for not letting Florida’s judiciary decide whether Florida law permitted another attempt at a constitutionally acceptable recount during the six days between the safe harbor deadline and the meeting of the presidential electors. But even if another recount had occurred during that period, it might not have made any difference in the outcome (since, as we have seen, the media consortium’s review must be considered ultimately inconclusive). In any event, it is hard to pin on the US Supreme Court primary responsibility for the recount process running out of time. For that, Gore’s own litigation strategy seeking a futile extension of the protest phase, and the Florida Supreme Court’s distortion of the applicable statutes granting an extension even beyond what Gore sought, are much more responsible.
Nor should the US Supreme Court’s equal protection ruling be seen as contributing any unfairness to the counting process that occurred for Florida’s presidential ballots in 2000. On the contrary, that equal protection ruling was a genuinely necessary corrective for unfairness inherent in the ballot-counting process authorized by the Florida Supreme Court. Had the shoe been on the other foot, no Democrat would have found acceptable a procedure that permitted the same ballot, with an identically dimpled chad, to be counted differently depending on whether it was counted by one local official rather than another. In that mirror-image situation, Democrats would have been the ones to contend that the disqualification of one dimpled chad, while simultaneously counting another in the very same election, was arbitrarily discriminatory disenfranchisement in violation of the fundamental one-person-one-vote principle enshrined in equal protection jurisprudence since Reynolds v. Sims.
Indeed, that was the very essence of the Court’s reasoning in Bush v. Gore, and Reynolds v. Sims was the key precedent that the Court cited to support its reasoning. Bush v. Gore was the logical outgrowth of the Reynolds revolution in equal protection jurisprudence applicable to elections. It took four decades for this logical extension to be made explicit, because there had not been a ballot-counting dispute significant and controversial enough to require the Court’s intervention during that period. The Georgia gubernatorial election of 1966 showed that the Court would intervene if the stakes were high and a federal issue squarely presented. The 1994 Alabama chief justice election came close to needing a decision on the merits from the Court, and its refusal to grant an emergency stay in that case was a signal of where the jurisprudence was heading. By letting stand the Eleventh Circuit’s reliance on the Fourteenth Amendment to invalidate Alabama’s abusive manipulation of its own rules for counting absentee ballots, the Supreme Court indicated at the very least that it was open to the jurisprudential step it would take in Bush v. Gore.
That step, however, was contrary to Taylor v. Beckham and Justice Black’s repudiation of the federal district court’s proceedings in the Ballot Box 13 litigation of Stevenson v. Johnson. But no one cited those earlier precedents to the Court in Bush v. Gore. The case moved too quickly for even the best lawyers to reach back for those pre-Reynolds precedents. The Court never had to confront the conflict between two strands of its own jurisprudence. Instead, Bush v. Gore shows implicitly that the idea of the federal judiciary refraining from involvement in a state’s ballot-counting controversy, which was the essence of both Taylor v. Beckham and Justice Black’s decree in Stevenson v. Johnson, did not survive the Reynolds revolution.
One should not lament its passing. Taylor v. Beckham would have been a better decision if Justice Harlan’s dissent had prevailed. Likewise, the battle over Ballot Box 13 would have been fairer if Justice Black had not prevented the federal district court from examining its contents. Insofar as the jurisprudence of Taylor v. Beckham and Bush v. Gore are diametrically at odds, the nation’s ability to fulfill its commitment to democracy is much more secure as a result of the Court’s decision at the close of the twentieth century, rather than the one rendered at the century’s start.
If any single institution is to blame for unfairness in the ballot-counting procedures used in the 2000 presidential election, it is Florida’s legislature. It is the one that established recount rules that made no sense for a statewide election, especially a presidential one. It should have known better given Florida’s role in 1876.
But Florida’s failure in 2000 was more than just its procedures for counting ballots. That failure also included defects in its procedures for casting ballots—defects that no fair recount could have remedied. Moreover, the consequence of those defects was that in 2000 Florida was incapable of achieving even the rough justice that occurred in 1876. Back then the unfair manipulation of the state’s counting rules had the effect of giving the election to Hayes, who would have won if the casting rules had been fair. Even though two wrongs don’t make a right, and the wrongful disenfranchisement of African Americans in 1876 did not justify stuffing the ballot box with invalid votes (as well as the other egregious manipulations of the counting rules undertaken by Florida’s canvassing board in 1876), the end result of a Hayes victory was what the eligible electorate actually wanted in 1876.
The same, however, cannot be said of Florida’s failures in 2000. Its ballot-counting flaws did not erase its ballot-casting defects. Rather, this time the two types of deficiencies reinforced each other. The result was the inauguration of a president that the majority of the participating voters of Florida, and thus the nation as a whole, had not intended to elect.
Excerpted from "Ballot Battles: The History of Disputed Elections in the United States" by Edward Foley. Published by Oxford University Press. Copyright 2016 by Oxford University Press. Reprinted with permission of the publisher. All rights reserved.