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How the 2000 Election Results Came Down to a Supreme Court Decision

How the 2000 Election Results Came Down to a Supreme Court Decision


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Five hundred thirty-seven votes.

That's all that separated Democrat Al Gore and his Republican challenger George W. Bush when, on November 26, 2000, three weeks after Election Day, the state of Florida declared Bush the winner of its 25 electoral votes in the race for U.S. president.

After a wild election night on November 7, 2000, during which TV networks first called the key state of Florida for Gore, then for Bush, followed by a concession by Gore that was soon rescinded, the results for who would be the nation’s 43rd president were simply too close to call.

In the 36 days that followed, Americans learned Gore had won the popular vote by 543,895 votes. But it's winning the Electoral College that counts. As accusations of fraud and voter suppression, calls for recounts and the filing of lawsuits ensued, the terms “hanging chads,” “dimpled chads” and “pregnant chads” became part of the lexicon.

Andrew E. Busch, professor of government at Claremont McKenna College and co-author of The Perfect Tie: The True Story of the 2000 Presidential Election, says as votes were counted and Bush’s lead grew, TV networks retracted their premature call of Gore, instead giving the state to Bush.

“When the lead shrank to about 2,000 votes in the early hours of the morning, TV reversed again, rescinded the call for Bush, and declared Florida as yet undetermined,” he says. “The initial problem was failure of the exit polls, for which they later overcompensated.”

READ MORE: What Is the Electoral College and Why Was It Created?

Too Close to Call

The result of the 2000 presidential election ending in such a close call wasn’t a huge surprise: According to The Perfect Tie, the Gallup tracking poll showed nine lead changes during the fall campaign, with Bush holding a slight lead in the final week of the campaign, and Gore gaining a swing in momentum on Election Day.

As it became clear the final vote in Florida, which would decide the election, was basically a tie, Gore rescinded his concession during a phone call. Bush, according to The New York Times, asked, ''You mean to tell me, Mr. Vice President, you're retracting your concession?'' That was followed by Gore’s response: ''You don't have to be snippy about it,'' and, ''Let me explain something. Your younger brother is not the ultimate authority on this.''

Gore was referring to the fact that Florida’s governor at the time was Jeb Bush, Bush’s younger brother. Further fueling the fire: Katherine Harris, Florida’s secretary of state, charged with overseeing an impartial election, was a Republican who served as co-chair of Florida’s Bush for President election committee.

“When an election is this close, and closely fought, a recount along these timelines is to be expected,” says Rick Hasen, professor of law and political science at the University of California, Irvine, and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. “The Franken-Coleman recount of the Minnesota Senate race in 2008 took almost nine months to fully resolve. But for a presidential election we need finality much sooner, making everything more difficult.”

Busch says recounts at the local or state level are not infrequent, but an event like this, at the presidential level, hadn’t occurred for some time.

“In 1876, there was a much bigger dispute,” he says, referring to the election in which Republican Rutherford B. Hayes eventually emerged as president after neither major party candidate earned enough electoral votes to win without 20 disputed electors. A congressional stalemate led to the creation of a commission that controversially awarded all 20 disputed electors to Hayes.

“There was a lot of maneuvering, but not the same scenario,” Hasen says. “Florida in 2000 took so long because of multiple legal challenges, stops and starts to the recount that carried it beyond the norm.”

READ MORE: How the 1876 Election Tested the Constitution

The Florida Recount and Hanging Chads

Over the next few weeks, with no winner yet determined, officials conducted an electronic recount, in which ballots were re-fed into the same machines, but Gore asked for a hand recount. “There was much squabbling about when, how, and whether to do such hand recounts,” according to The Voting Wars. “One law firm alone eventually handled forty election-related lawsuits for the Florida secretary of state."

The ballots, themselves, became an issue of contention. The visually confusing paper punch-card "butterfly ballot," in which two columns of candidate names were separated by a middle column with marks to be punched through, was blamed for some Gore votes going to Pat Buchanan due to a misalignment of the names and marks.

And then some of those marks failed to get properly punched through.

“Some counties in Florida used a card-punch system for voting,” Busch says. “Voters would get a card with little perforated squares that lined up with names on the ballot. They would position a card puncher over the square belonging to the candidate they wanted and would push it through the square, creating a hole that would be read by a vote-counting machine. The little square that is supposed to be knocked out is called the ‘chad.’”

At issue: Some holes were not completely punched out of the ballots. “A chad that was not punched out all the way—i.e. was still hanging by one, two or even three corners to the ballot—was called a ‘hanging chad.’” Busch says. “Election officials had to devise standards by which to count the ballots with hanging chads. Do you count it as a valid vote as long as there is some evidence that a voter tried to cast a vote? Do you only count it if three of the four corners are knocked out? Something in between? No consistent standard was developed, which was a key issue in Bush v. Gore.”

After lawsuits, challenges and recounts, the Florida Supreme Court ordered a recount of undervotes in all of Florida's 67 counties, which was quickly appealed by Bush, and the case headed to the U.S. Supreme Court.

READ MORE: What Happens If There's a Tie in a US Presidential Election?

The Supreme Court Decision: Bush v. Gore

According to Busch, the Supreme Court had telegraphed its displeasure with how things were going in Florida a week or so before by sending the first Bush plea to the court back to the Florida Supreme Court by a 9-0 vote, “saying basically, ‘We would rather not get involved, but you are messing this up. Fix it.’"

The Florida Supreme Court ignored the warning signal and pressed forward with its call for a recount, and the case was returned to the U.S. Supreme Court. The case, according to Hasen’s book, put the Florida election under a microscope, examining election machines, voter lists, vote-counting rules, the state’s poorly drafted election statutes, partisan election officials and the role of courts.

“At that point there were actually two key votes,” Hasen says. “The first was a 7-2 determination that the Florida recount, as it was being conducted, was unconstitutional on the grounds that there were no clear standards that were being applied consistently to all ballots. Then, by a 5-4 vote, the court declared that time had run out to devise a remedy. That stopped the process, with Bush ahead.”

The decision resulted in one of the most controversial Supreme Court decisions in American history. With the Florida win, Bush led Gore in electoral votes nationally 271-266, and, out of legal options, Gore conceded.

“The court divided along ideological lines with the conservatives backing Bush, the more conservative candidate, and the liberals backing Gore, the more liberal candidate,” Hasen says. “The case presented difficult questions about court intervention in a process that both sides thought was infected with politics from the opposing side.”

READ MORE: How Sandra O’Connor’s Swing Vote Decided the 2000 Election

Consequences of the 2000 Election

With the decision, Bush became the first president since Benjamin Harrison, in 1888, to lose the popular vote, but win the general election. Not surprising, Democrats were unhappy with the results, Busch notes, while Republicans were happy and relieved.

“I think independents were generally relieved that the partisan bickering was over,” he says. “Overall, about 80 percent of poll respondents told Gallup that they accepted the results as legitimate.”

One result of the outcome: Candidates learned not to concede too early, Busch adds. “One of Gore's political problems throughout the five weeks was that he had conceded to Bush, then withdrew his concession, so he was widely seen as a bad loser,” he says. “Ever since 2000, both parties have maintained a stable of attorneys prepared to swarm over the next Florida on a moment's notice.”

The 2000 election dispute also contributed to the growing polarization in American politics, according to Busch. “Democrats saw Bush as a president who snuck in by the good graces of the Supreme Court, and Republicans saw Gore and Democrats as people who would change rules in the middle of the game just to hold on to power,” he says.

READ MORE: 5 Presidents Who Lost the Popular Vote But Won the Election


Step Aside Election 2000: This Year's Election May Be The Most Litigated Yet

A voter stands by for her ballot as people wait more than four hours for early voting Friday in Fairfax, Va.

The night of Nov. 7, 2000, was cold and wet in Austin, Texas.

"Nobody cared," remembers Republican lawyer Ben Ginsberg, who worked for Texas Gov. George W. Bush's presidential campaign. "We had just won the presidency of the United States."

That excitement quickly evaporated. As the night stretched on, the race between Bush and Democratic nominee Al Gore tightened in Florida. The television networks revised their projections for Bush, deeming the contest too close to call. Before the election night was over, Gore withdrew his concession phone call.

"About 3:30 in the morning, the campaign chair came by my desk and said there's going to be a recount," Ginsberg says. "You'd better saddle everybody up. And so that's when the private planes got put into service, lawyers got recruited, phone calls went out."

Broward County, Fla., canvassing board member Judge Robert Rosenberg uses a magnifying glass to examine a disputed ballot on Nov. 24, 2000. Alan Diaz/AP hide caption

Broward County, Fla., canvassing board member Judge Robert Rosenberg uses a magnifying glass to examine a disputed ballot on Nov. 24, 2000.

Those lawyers on planes ended up in Florida, where Gore sued to force a recount in a few too-close-to-call counties. It was a five-week battle over the ballots, the rules, the law and the courts. A 5-4 decision at the Supreme Court effectively stopped the recount, paving the way for Bush's win.

"The level of litigation that took place in 2000 was unprecedented," Ginsberg says.

That word, unprecedented, gets used a lot when describing the 2000 election. But what was unprecedented two decades ago is starting to look quaint in 2020.

2020, election lawyers say, may be the most litigated election ever.

"Let this election not be close"

"I think it probably already has achieved that status," says Justin Riemer, chief counsel for the Republican National Committee. Riemer says the RNC and other party committees are already involved in more than 40 lawsuits.

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"Dozens and dozens" of lawyers are at the ready, Riemer says, both in-house at the RNC and other party committees. Lawyers have also been retained around the country.

Democratic election lawyer Marc Elias, who is leading the Biden campaign's state-level fights over vote counts and ballot rules, says Democrats are also busy in court.

"We're litigating 30-plus lawsuits in 17 or 18 states," he says.

In 2000, lawyers and election officials endlessly examined and debated butterfly ballots and hanging chads to try to interpret the intentions of voters. Now, the legal arguments are more complex and center on the rules governing mail-in voting as states have expanded voting options to protect people from the spread of the coronavirus.

Hundreds of lawsuits are already swirling around mail-in voting as campaigns, parties and outside groups try to sort issues both basic and technical — questions such as must a ballot be received by or just postmarked by Election Day? Can states require a witness for a mail-in ballot? What standards are being used to judge a voter's signature? Can drop boxes be used to return ballots instead of relying on the U.S. Postal Service?

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Ginsberg says ideally, campaigns and parties want the courts to weigh in on these questions now to minimize uncertainty in the days after the election.

For example, following litigation from the state Democratic Party, the Pennsylvania Supreme Court extended the deadline for mail-in ballots to be received as long as they are postmarked by Election Day.

In some states, such as Pennsylvania, mail ballots can't be opened until Election Day — meaning that the count won't likely be available on election night. Then, factor in the extended deadlines and potential litigation — and it's very possible key states will remain undecided for days after the election.

"What happens if it's a three- or a seven-day deadline, but a whole bunch of ballots arrive after that deadline through no fault of the voters themselves?" Ginsberg says. "That's an area that would be ripe for both litigation and putting off when you know the final results of an election."

Absentee ballots are loaded onto a truck for mailing earlier this month at the Wake County, N.C., Board of Elections. Gerry Broome/AP hide caption

Absentee ballots are loaded onto a truck for mailing earlier this month at the Wake County, N.C., Board of Elections.

Justin Levitt, a professor at Loyola Law School, has been tracking the number of pandemic-related voting lawsuits this year. He's logged 250 so far. Beyond mail voting, Levitt says there's litigation about in-person voting, too, such as how long polls will be open, how many polling places there will be and what safety measures will be taken. Then there's also litigation pushing back on pandemic voting measures — arguing election officials have gone too far in making adjustments due to the pandemic.

"I think that the lawyers and litigation, they're there to help resolve disputes," Levitt says. "It's actually much better that they're trying to resolve the disputes before they happen — that is, we'd much rather have the lawyers engaged, making sure the process is as fair as it can be before the election than trying to fight over rules of the game when the outcome is even more in question after the election. The election administrator's prayer is, dear Lord, let this election not be close. And I fully subscribe to that."

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Republicans plan large-scale poll watching effort

Beyond the pandemic, there's another factor at play in 2020. The Republican Party is no longer bound by certain rules when it comes to poll watchers or so-called ballot security programs.

The RNC had been under a consent decree going back to the 1980s when Democrats accused it of violating the rights of Black and Latino voters. A court found Republicans had stationed off-duty police officers in some minority precincts and sent targeted mailings to minority voters warning about penalties for violating election laws.

A judge let the consent decree expire in 2018 — allowing the RNC to bolster voter fraud efforts and coordinate Election Day poll watching.

"The Democrats were able to have poll watchers there to document what happens if a precinct runs out of ballots, for example, or if there is a voting equipment breakdown or if they weren't using provisional ballots when they were supposed to," Riemer says. "Documenting that evidence is extremely important if there are questions after the election that lead to litigation or lead to a recount. And I compare it to, you know, a court case where one side is able to have all the evidence and the other side has none. How is that fair?"

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The RNC says it's planning to recruit tens of thousands of poll watchers to observe ballot counting — especially mail ballots — at clerk's and registrar's offices in key states.

Elias, the Democratic election lawyer, says that's chilling.

"Under a president who is as hostile to voting and whose record on race is so poor, does anyone really believe that they are going to go out and go to the trouble to recruit 50,000 people to stand there like Boy Scouts and Girl Scouts just observing the election?" Elias asks.

Lessons from 2000

Demonstrators march to the Florida state Capitol in Tallahassee in December 2000 in support of Democratic nominee Al Gore and in protest of the U.S. Supreme Court decision stopping the manual vote recount in Florida. Tony Gutierrez/AP hide caption

Demonstrators march to the Florida state Capitol in Tallahassee in December 2000 in support of Democratic nominee Al Gore and in protest of the U.S. Supreme Court decision stopping the manual vote recount in Florida.

The expiration of the consent decree and the expected challenges to rules governing mail-in ballots — all of it means more legal challenges to the 2020 election. But there's another wild card: the president himself. President Trump has not clearly said he would accept the results of the election and has frequently made false claims about mail voting.

"We could have a situation where there is a large number of outstanding ballots on election night, but the president declares the election over, based on the in-person vote and either sows confusion and chaos as a result of that or even takes steps to try to prevent the counting of properly cast absentee ballots," says Dale Ho, director of the American Civil Liberties Union's Voting Rights Project.

The ACLU already has some 20 suits going in 16 states on coronavirus-related voting issues, and Ho says his office is busier than it's ever been. But he still fears the courts might not be a sufficient guardrail to prevent confusion in the days after the election. He worries the country did not learn the right lessons from the 2000 election.

"The lesson from Bush versus Gore should have gone well beyond voting machines to the notion that maybe, you know, we should have professionalized and nonpartisan election administration where all of the rules are agreed upon in advance to deal with whatever contingency might arise," Ho says.


The campaign

Gore, as Bill Clinton’s vice president for eight years, was the clear favourite in the primary to win the Democratic nomination. He captured it easily, seeing off a challenge from Bill Bradley, a former U.S. senator from New Jersey.

Most of the excitement in the primaries came on the Republican side, as Bush faced a stiff challenge from John McCain, a U.S. senator from Arizona other candidates included businessman Steve Forbes, diplomat and conservative commentator Alan Keyes, U.S. senator Orrin Hatch, and conservative activist Gary Bauer. Bush ultimately prevailed after a strenuous fight, including an especially brutal effort by the Bush campaign in the South Carolina primary.

Despite the continued economic growth that Gore could attribute to his economic stewardship with Clinton, early in the general election campaign it appeared that Bush might easily defeat Gore, who appeared wooden and dismissive of Bush in the campaign’s debates and who was criticized repeatedly by the Bush campaign as an exaggerator. In late October, however, the gap in the polls between Bush and Gore narrowed dramatically.

On election night, no clear winner emerged. Print and broadcast media cited often contradictory exit-polling numbers, and the races in Oregon and New Mexico would remain too close to call for some days. Ultimately, the contest focused on Florida. Networks initially projected Gore the winner in Florida, but later they declared that Bush had opened an insurmountable lead. Gore called Bush to concede the election, but in the early hours of the following morning it became apparent that the Florida race was much closer than Gore’s staff had originally believed. Fewer than 600 votes separated the candidates, and that margin appeared to be narrowing. About 3:00 am Gore called a stunned Bush to retract his concession.

Florida state election law required a mandatory statewide machine recount. By November 10 the machine recount was complete, and Bush’s lead stood at 327 votes out of six million cast. As court challenges were issued over the legality of hand recounts in select counties, news stories were filled with the arcane vocabulary of the election judge. County officials tried to discern voter intent through a cloud of “hanging chads” (incompletely punched paper ballots) and “pregnant chads” (paper ballots that were dimpled, but not pierced, during the voting process), as well as “overvotes” (ballots that recorded multiple votes for the same office) and “undervotes” (ballots that recorded no vote for a given office). Also at issue was the so-called butterfly ballot design used in Palm Beach county, which caused confusion among some Gore voters—prompting them to inadvertently cast their votes for third-party candidate Pat Buchanan, who received some 3,400 (some 20 percent of his total votes statewide).

By late November the Florida state canvassing board certified Bush the winner by 537 votes, but the election still was unresolved, as legal battles remained. Eventually, the Florida Supreme Court decided (4–3) to order a statewide manual recount of the approximately 45,000 undervotes—ballots that machines recorded as not clearly expressing a presidential vote—and accepted some previously uncertified results in both Miami-Dade and Palm Beach counties, reducing Bush’s lead to a mere 154 votes. The Bush campaign quickly filed an appeal with the U.S. Supreme Court, asking it to delay the recounts until it could hear the case a stay was issued by the court on December 9. Three days later, concluding (7–2) that a fair statewide recount could not be performed in time to meet the December 18 deadline for certifying the state’s electors, the court issued a controversial 5–4 decision to reverse the Florida Supreme Court’s recount order, effectively awarding the presidency to Bush (see Bush v. Gore). By winning Florida, Bush narrowly won the electoral vote over Gore by 271 to 266—only 1 more than the required 270 (one Gore elector abstained). Gore, however, won the popular vote over Bush by some 500,000 votes—the first inversion of the electoral and popular vote since 1888.

For the results of the previous election, see United States presidential election of 1996. For the results of the subsequent election, see United States presidential election of 2004.


Here's What To Know About How The Supreme Court Can Decide A Presidential Election

The potential role of the Supreme Court in the upcoming presidential election is getting extra scrutiny after President Donald Trump prematurely called victory on Nov. 3 before all ballots were counted — and subsequently said he'd be taking the matter to the highest court in the land. In light of the Tuesday, Oct. 27 swearing in of new Supreme Court Justice Amy Coney Barrett, you might be wondering if the Supreme Court can decide an election. Here's how the conservative-majority Supreme Court could potentially get involved.

Ahead of the confirmation of Justice Barrett by a 48-51 vote in the Senate just a week before Election Day, President Trump sparked controversy when he told reporters that the Supreme Court could again decide the results of the election. “I think [the election] will end up in the Supreme Court, and I think it’s very important that we have nine justices," Trump told reporters on Sept. 23. President Trump has repeatedly made unverified claims that the election would be a "hoax" due to the high number of mailed-in ballots, but there is no evidence that mail-in voting leads to voter fraud. He again made his plans to go to the Supreme Court apparent in his election night speech on Nov. 3, saying:

It should be noted that as of 9:25 a.m. ET, despite President Trump's claims of a victory, no major news organizations have declared a winner in the presidential election. It's also unclear which states Trump was referring to in his remarks about going to the Supreme Court about at this time. Elite Daily reached out to the White House for comment and clarification on his speech, but did not hear back by the time of publication.

In response to the president apparently calling for mailed-in votes to not be counted, Biden campaign manager Jen O’Malley Dillon said on Nov. 4, "The president’s statement tonight about trying to shut down the counting of duly cast ballots was outrageous, unprecedented, and incorrect." She added, "The counting will not stop. It will continue until every duly cast vote is counted. Because that is what our laws — the laws that protect every Americans' constitutional right to vote — require."

Nevertheless, lawsuits about mail-in ballot deadlines in Pennsylvania and North Carolina hint that the Supreme Court may need to intervene when it comes to whether or not ballots are counted if they arrive after Election Day. This is especially of concern since the results of the race were not called on election night. As expected, President Trump has prematurely declared victory, and is trying to stop the counting of ballots after Election Day. Despite Trump's claims, it's common practice for every state to keep counting ballots after Election Day, and states are under no legal obligation to share voting results by that time, according to The New York Times. Instead, the projected winner is reported by media outlets based on partial counts, not the states themselves. Again, as of 9:25 a.m. ET on Wednesday, Nov. 4, no winner has been announced or projected by any network.

The Supreme Court has only intervened in a presidential election two times in the past — and only once in modern history. Five justices originally decided the 1876 race between Rutherford B. Hayes and Samuel Tilden in favor of Hayes. The only instance of Supreme Court intervention in an election in modern history was 20 years ago, when the Supreme Court decided the 2000 election in favor of then-Republican nominee George W. Bush. After the Florida Supreme Court ruled in favor of recounting votes, the Supreme Court stepped in and ruled 7-2 to halt the vote recount in Florida. Bush went on to win Florida by a mere 537 votes, and thus the election, by just five electoral college votes.

With concerns that Barrett could be the deciding factor in a Supreme Court case on the election results, the new justice dodged answering when asked if she'd recuse herself from a hypothetical case.

"I commit to you to fully and faithfully applying the law of recusal, and part of the law is to consider any appearance questions," she said. "And I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not. But I can’t offer a legal conclusion right now about the outcome of the decision I would reach."

In a Nov. 4 statement, O’Malley Dillon said the Biden campaign is prepared for President Trump to seek legal avenues to stop the counting of ballots. "If the president makes good on his threat to go to court to try to prevent the proper tabulation of votes, we have legal teams standing by ready to deploy to resist that effort," he said. "And they will prevail."

Only time will tell how the Supreme Court will rule if the case winds up before them. Just weeks before the election, the U.S. Supreme Court declined to take on one of the most high-profile pre-race cases in Pennsylvania, thus allowing election officials in Pennsylvania to be able to count absentee ballots received as late as the Friday after Election Day, as long as they were postmarked by Nov. 3.

At the time, conservative judges Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas said they would have ruled against the extension while Chief Justice John Roberts said he would have joined the three liberal judges, making it a 4 to 4 tie. With newly-appointed conservative Justice Barrett now on the court, that ruling could change if the Supreme Court was faced with a similar case.


How the 2000 Election Results Came Down to a Supreme Court Decision - HISTORY

On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic Candidates for President and Vice President. The Supreme Court noted that petitioner, Governor George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. ___ So. 2d, at ___ (slip op., at 4, n. 6). The court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican Candidates for the Presidency and Vice Presidency, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari. Post, p. ___.

The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. ____ (per curiam) (Bush I). On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner, Governor Bush, had received 2,909,135 votes, and respondent, Vice President Gore, had received 2,907,351 votes, a margin of 1,784 for Governor Bush. Because Governor Bush’s margin of victory was less than “one-half of a percent . . . of the votes cast,” an automatic machine recount was conducted under 𨲾.141(4) of the election code, the results of which showed Governor Bush still winning the race but by a diminished margin. Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida’s election protest provisions. Fla. Stat. 𨲾.166 (2000). A dispute arose concerning the deadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. §𨲾.111, 102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari and vacated the Florida Supreme Court’s decision, finding considerable uncertainty as to the grounds on which it was based. Bush I, ante, at ___—___ (slip. op., at 6׭). On December 11, the Florida Supreme Court issued a decision on remand reinstating that date. ___ So. 2d ___, ___ (slip op. at 30㬛).

On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida’s 25 electoral votes. On November 27, Vice President Gore, pursuant to Florida’s contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. Fla. Stat. 𨲾.168 (2000). He sought relief pursuant to 𨲾.168(3)(c), which provides that “[r]eceipt 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” shall be grounds for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court.

Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. Gore v. Harris, ___ So. 2d. ____ (2000). The court held that the Circuit Court had been correct to reject Vice President Gore’s challenge to the results certified in Nassau County and his challenge to the Palm Beach County Canvassing Board’s determination that 3,300 ballots cast in that county were not, in the statutory phrase, “legal votes.”

The Supreme Court held that Vice President Gore had satisfied his burden of proof under 𨲾.168(3)(c) with respect to his challenge to Miami-Dade County’s failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President (“undervotes”). ___ So. 2d., at ___ (slip. op., at 22㬓). Noting the closeness of the election, the Court explained that “[o]n this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt.” Id., at ___ (slip. op., at 35). A “legal vote,” as determined by the Supreme Court, is “one in which there is a ‘clear indication of the intent of the voter. ’ ” Id., at ____ (slip op., at 25). The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to “provide any relief appropriate under such circumstances,” Fla. Stat. 𨲾.168(8) (2000), the Supreme Court further held that the Circuit Court could order “the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes … to do so forthwith, said tabulation to take place in the individual counties where the ballots are located.” ____ So. 2d, at ____ (slip. op., at 38).

The Supreme Court also determined that both Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legal votes for Vice President Gore. Id., at ___ (slip. op., at 33㬞). Rejecting the Circuit Court’s conclusion that Palm Beach County lacked the authority to include the 215 net votes submitted past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts. As to Miami-Dade County, the Court concluded that although the 168 votes identified were the result of a partial recount, they were “legal votes [that] could change the outcome of the election.” Id., at (slip op., at 34). The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount.

The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, ڇ, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5 and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.

The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28, 2000) Kelley, Balloting Problems Not Rare But Only In A Very Close Election Do Mistakes And Mismarking Make A Difference, Omaha World-Herald (Nov. 15, 2000). In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.

This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U.S. Const., Art. II, ڇ. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature’s power to select the manner for appointing electors is plenary it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. Id., at 28㬝. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). 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, 377 U.S. 533, 555 (1964).

There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.

Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them. In some cases a piece of the card–a chad–is hanging, say by two corners. In other cases there is no separation at all, just an indentation.

The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” Gore v. Harris, ___ So. 2d, at ___ (slip op., at 39). 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. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.

The law does not refrain from searching for the intent of the actor in a multitude of circumstances and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.

The want of those rules here has led to unequal evaluation of ballots in various respects. See Gore v. Harris, ___ So. 2d, at ___ (slip op., at 51) (Wells, J., dissenting) (“Should a county canvassing board count or not count a ‘dimpled chad’ where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree”). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.

The record provides some examples. A monitor in
Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.

An early case in our one person, one vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. Gray v. Sanders, 372 U.S. 368 (1963). The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, 394 U.S. 814 (1969), where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed that “[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.” Id., at 819.

The State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary of State, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties.

In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount on the other hand, the citizen who marks two candidates in a way discernable by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernable by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court’s inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way.

That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court’s decision thus gives no assurance that the recounts included in a final certification must be complete. Indeed, it is respondent’s submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court’s decision to permit this. See ____ So. 2d, at ____, n. 21 (slip op., at 37, n. 21) (noting “practical difficulties” may control outcome of election, but certifying partial Miami-Dade total nonetheless). This accommodation no doubt results from the truncated contest period established by the Florida Supreme Court in Bush I, at respondents’ own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.

In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court’s decision raises further concerns. That order did not specify who would recount the ballots. 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. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount.

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. See ____ So. 2d, at ____, n. 26 (slip op., at 45, n. 26).

Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary of State has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. 𨲽.015 (2000).

The Supreme Court of Florida has said that the legislature intended the State’s electors to “participat[e] fully in the federal electoral process,” as provided in 3 U.S.C. § 5. ___ So. 2d, at ___ (slip op. at 27) see also Palm Beach Canvassing Bd. v. Harris, 2000 WL 1725434, *13 (Fla. 2000). That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court’s order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.

Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting) post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. § 5 Justice Breyer’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 the Florida election code, and hence could not be part of an “appropriate” order authorized by Fla. Stat. 𨲾.168(8) (2000).

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution’s design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Pursuant to this Court’s Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith.


A Supremely Bad Decision: The Majority Ruling in Bush v. Gore

Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
-Justice John Paul Stevens [Dissent] Bush v. Gore (2000)

The Supreme Court decision that decided the 2000 Presidential Election should go down in history as one of the court's most ill-conceived judgments. In issuing its poorly-reasoned ruling in Bush v. Gore, the court majority unnecessarily exposed itself to charges of partisanship and risked undermining the court's stature as an independent, impartial arbiter of the law. Although the court majority correctly identified constitutional problems in the specific recount proceedings ordered by the Florida Supreme Court, the decision to end all recount attempts did immeasurable damage to the equal protection rights the court claimed to be guarding, since it favored a convenient and timely tabulation of ballots over an accurate recording of the vote. In the controversy that followed this decision, some critics of the majority decision argued that the court had no business taking on Bush v. Gore in the first place, that it should have remained solely within the Florida courts (Ginsburg, J. [Dissent] Bush v. Gore [2000]). This paper will argue that the court was correct to intervene but that the resulting decision was flawed and inconsistent, with potentially serious, adverse implications for the Federal judiciary if the court continues to issue rulings in this way.

The Court majority intervened in Bush v. Gore because it perceived a violation of the Fourteenth Amendment's equal protection clause in the manual recounts that had been ordered in Florida (Bush v. Gore [2000]). There is no disagreement that Art. II, § 1, cl. 2† of the Federal Constitution clearly specifies that it is the sole right and responsibility of the state legislatures to provide for the selection of Presidential electors. Under Florida law, this had been accomplished by providing for a popular vote, the winner of which was to receive all of the state's electoral votes. Since this right had been extended to the people of Florida, the equal protection clause mandates that the right to vote not be infringed either by preventing the act of voting or by unequal treatment of votes after they have been cast (Bush v. Gore [2000]). In the case of the Florida recount, the Court majority found that this right was being violated due to the lack of standards for how to assess voter intent on a ballot. Moreover, the court found that it would not be possible to conduct a constitutionally-acceptable recount before the so-called "safe harbor" afforded by 3 U.S.C. § 5 expired and that therefore the recount could not proceed (see below).

Concern about equal protection is certainly appropriate and instructive in the Bush v. Gore case, since it is directly linked to the legitimacy of the declared winner and eventual President. However, the court had several options to solve the equal protection problems and the decision that was finally rendered was not nearly the best possible option. The simplest way to solve the issue would have been to rule that legal votes are defined as those that were marked correctly and counted mechanically. This is the definition that Florida Secretary of State Katherine Harris suggested to the court. Unfortunately, this definition is not supported by Florida electoral law and instead the court majority accepted the Florida Supreme Court's definition of a legal vote being one that clearly shows the intention of the voter (Souter, J. [Dissent] Bush v. Gore [2000]). Having accepted that a vote tabulation should seek out the intent of each voter, the court majority found that arbitrary and inconsistent state-wide standards for assessing voter intent constituted a violation of equal protection, making the Florida recount unconstitutional as it had been ordered.

This judgment is more contested but I believe it is also an accurate one. In Florida, the responsibility for determining voter intent is designated to county canvassing boards (Souter, J. [Dissent] Bush v. Gore [2000]). Similarly, the selection of balloting systems falls to the counties, which are free to choose among several options with varying accuracy (Stevens, J. [Dissent] Bush v. Gore [2000]). Assuming, then, that Florida election procedures that allow for differences in voter treatment between counties are constitutional to begin with, at a minimum counties must treat all of their voters uniformly for equal protection not to be infringed. As testimony about voting procedures revealed, this basic equality was not being upheld and so the Court was justified in intervening to stop the recount that was underway (Bush v. Gore [2000]). The Court's suggestion that state-wide tabulation standards are required in a court-ordered recount is more debatable since it begins to raise doubt about the constitutionality of the entire election, which was conducted without any such state-wide assurances of equal protection. However, in the case at hand, the crucial point is simply that although the recount was unconstitutional as ordered by the Florida court, it is entirely possible to conceive of a recount that would be constitutional. At a minimum, it would require county-wide standards for assessing voter intent, with impartial judges working under clear instructions to make the final decision on any contested ballots and, if the court felt it necessary, it could order state-wide standards as well.

In its decision, the court majority did not deny that such a legal recount was possible. However, it found that circumstances would not permit such a recount before the expiration of the "safe harbor" afforded by 3 U.S.C. § 5. This clause essentially guarantees that the electors selected in the general election to represent a state will be counted in the Electoral College so long as they are selected under legislation that predates the election and are chosen at least six days before the Electoral College convenes (Rehnquist, J. [concurrence] Bush v. Gore [2000]). Since Florida law is designed to take advantage of 3 U.S.C. § 5, the court majority ruled that the selection of electors could not extend past that safe harbor time without ignoring the Florida statutes, which in turn would violate Art. II, § 1, cl. 2 of the Federal constitution. By invoking this restricted time frame, the court majority made it infeasible to conduct a constitutional recount and concluded that it was appropriate to order the cessation of all recounts in Florida.

It is this focus on abiding by the safe harbor clause that leads the court majority astray. Several of the dissenting Justices argue persuasively that in this case, the safe harbor clause can be safely ignored without causing any harm. They note, for example, that the Hawaiian slate of electors counted in the 1960 election was not certified until January 4, 1961 but was still counted by Congress (Stevens, J. [Dissent] Bush v. Gore [2000]). This effectively refutes the argument that missing the safe harbor deadline would risk the disenfranchisement of millions of Florida voters who cast mechanically-recordable ballots. What is not raised explicitly in any of the dissents is that under the circumstances, Florida law requiring that electors be selected under the safe harbor protections of 3 U.S.C. § 5 is itself an unconstitutional violation of the equal protection clause. If, as the court has defined, the undervotes and overvotes (ballots initially disqualified for having no vote for president or more than one vote for president) in Florida represent potential legal votes, it is a violation of equal protection for these votes not to be counted. In the majority's own words, "Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another." (Bush v. Gore [2000])

Counting only those legal votes that happen to be easily tabulated by mechanical equipment to fulfill an unnecessary time limit for vote certification is the very definition of arbitrary and disparate treatment. Thus, the decision issued by the court majority, while claiming to protect the voting rights of Floridians, did the exact opposite, blatantly depriving tens of thousands of voters of their equal protection rights as defined by the court majority. The timing issue is far more relevant with respect to the January deadline for Congress's counting and certification of electoral votes, which cannot be safely ignored without disenfranchising millions of Floridians. At that point, certifying the best available Florida vote total, even if incomplete, becomes the lesser of two equal protection violations. However, by refusing to allow a legal recount to go on for as long as possible, the court majority supported the very abuses that the equal protection clause is designed to prevent, even as it claimed to be ruling in the spirit of equal protection.

It is worth noting that the court found itself in a very difficult situation as it tried to reach a decision in Bush v. Gore. Regardless of the outcome, half the voting public was likely to come out feeling that their candidate had been robbed. Nonetheless, it is not the role of the Judiciary to shy away from controversial rulings when they become necessary and so the court was right to take the actions it felt were needed. However, when the court takes on controversial cases, it must do a better job of ensuring internal consistency within its own rulings. Disagreement over judicial interpretations of the law is to be expected, especially in a complicated case like Bush v. Gore. The problem arises when court decisions contain such manipulated interpretations of the law that they are not even internally consistent, as this decision is not.

By issuing such a ruling in this case, the court exposed itself to charges of blatant partisanship since its decision can be seen as a thinly-veiled maneuver by the conservative majority to hand the election to the more conservative candidate. Whether or not this is accurate, there is an inescapable irony in the juxtaposition of a conservative majority decision that advocates intervention in state election proceedings while the dissents by liberal justices argue that the court has exceeded its jurisdiction and infringed on state's rights. If the court is to maintain its legitimacy in the eyes of the public, it must do a better job of making clear that it is an independent and non-partisan arbiter of the law. The status of the court will survive the Bush v. Gore ruling intact as it has after prior controversial rulings. However, if the court continues to intervene regularly in partisan political proceedings and to use such questionable logic in its decisions, it will risk losing its legitimacy, thereby undermining its own power and relevance, and casting doubt on the role of the entire legal system that the Supreme Court represents.

Case Cited
Bush v. Gore, 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525 (2000)

About writing, Jared says: "In general, I try to strike a balance between planning a paper and letting the paper decide its own course. I often find that my best papers are those that start with a well-defined but somewhat contentious thesis and then proceed to let the various sources interact freely and debate one another. As a result, I sometimes end up with conclusions that I hadn't entirely expected, which forces me to go back and rewrite the beginning, but it usually makes for an interesting paper and leaves me feeling that I learned something novel from the process of producing the paper."


The Election of 2000

History in the making - that's what they called the election of 2000, but not until after the election should have been over. A month after Election Day, the United States was still unsure about who its next President would be.

Vice President Al Gore and Connecticut Senator Joe Lieberman headed the Democratic ticket. Texas Governor George Bush and former Secretary of Defense Dick Cheney headed the Republican ticket. For weeks before the election, polls showed Gore and Bush running neck and neck, too close to call nationally and in many states. Add to the mix the popularity of Green Party candidate Ralph Nader and a handful of other third-party candidates, such as the Reform Party's Pat Buchanan, the results from election night promised to be very interesting. And they were.

In 2000, Election Day fell on Tuesday, November 7, 2000. Electors must have been appointed by December 12, 2000. Electoral College Day was Monday, December 18. The deadline for receipt of the electoral votes by the President of the Senate was Wednesday, December 27, 2000. Congress convened on Wednesday, January 3, 2001. The electoral votes were counted in a joint session of Congress on January 6, 2001. Inauguration Day was Saturday, January 20, 2001.

The networks were chomping at the bit to be the first out of the starting gate, and when 7 pm Eastern time rolled by, they were ready to start making predictions. Vermont was an easy pick, with exit polls showing the state firmly in Gore's camp. Other states quickly fall into one camp or the other, including Florida into Gore's column. The networks had vowed, as in the past, not to call an election until all of the polls in a certain state had all closed - one problem in Florida is that part of the panhandle is in the Central time zone, and when Florida was called, some polls were still open.

Bush pulled out with an early lead, but with just a handful of states accounted for even a 40 point deficit was nothing for Gore to be worried about. As the night wore on, the networks began to hedge on Florida - though polling data showed Gore with the lead there, actual returns were starting to look to be more in Bush's favor. By 10 o'clock, most of the networks had taken Florida out of Gore's column and placed it back into the undecided column.

For several hours, as more and more states came in and more and more projections were made, Bush and Gore swapped the lead, finally settling on a 242-242 electoral vote tie. This projection was made in the late hours of the evening . and in the wee hours of the morning, returns from now-crucial Florida, with its 25 votes, began to swing in Bush's favor. Many networks call Florida for Bush and are able to declare him the winner at 2:15 a.m. Ready to concede to Bush, Gore placed a call. In the later words of Barbara Bush, "I was the mother of a President for about 30 minutes." Before Gore could give his concession speech, his advisors watched the web site for the Florida Board of Elections and watched as Bush's lead waned, at one point down to only 200 votes. His advisors told him that it was too close, and Gore had to call Bush to retract his concession. The networks flip-flopped again, taking Florida out of Bush's column and placing it back into the undecided group.

Bush had a lead of about 1700 votes in Florida, out of almost 6 million cast. Florida law demands a recount in such a close count, and as if the week decided it could not be outdone by the night, the wheels are set in motion for an electoral horse race.

With a recount triggered, the nation waited. With a margin of victory of only 1700 votes, anything could happen. Things that usually are not relevant to victory suddenly became so. Overseas absentee ballots are a perfect example. Florida, by law, did not finish counting them until November 17. With several thousand ballots sent out, and more coming back all the time, they could make for a decisive win one way or the other. Different balloting methods were examined and called into question, including one done by punching perforated holes out of ballot cards. This so-called butterfly ballot design was the source of complaints by many, mostly seniors, that the ballot was confusing and charges that the design caused an abnormally high number of votes for Buchanan in one county the ballot was used. Calls for a re-vote in one populous county were eventually denied on November 20th.

Quick recounts were done immediately following Election Day, and in doing so the final vote tally changed from a margin if over 1700 votes for Bush to one of just over 300 votes. In Palm Beach county, 19,000 ballots were found to be spoiled and were discarded. More Floridians began to demand a re-vote, something unprecedented in electoral history, and all eventually denied. The Gore campaign started to issue calls for, and eventually court hearings demanding, a manual recount of votes.

Meanwhile, with the outcome of Florida uncertain, other states start to show signs of trouble. In New Mexico, Gore had an early lead, but a programming error was found that pushed Bush into the lead. His lead was so slim as to trigger a recount. During recounts, as few as four votes separated them, before another error was found that gave Gore a 500 vote advantage. In Oregon, which uses a mail-in ballot only, delays in counting votes caused the election returns to be delayed, though Gore maintained a more sizeable lead (though still "slim": 5000 votes out of 1.4 million). Both camps began to eye close races in other states, to see if recounts might be warranted. Neither New Mexico nor Oregon alone or combined would win the election for either man, but some other combination of states could.

On November 14, 2000, Florida Secretary of State Katherine Harris was handed a court ruling that upheld her order that all counties in Florida must have certified election returns in to her office by 5:00 pm on that day (by Florida statute, one week following the election). The judge did specifically say, however, that the Secretary may not summarily dismiss amended returns that were sent in after the deadline. In the certified returns, Bush held a 300-vote lead. On the 15th, several counties decided to proceed with recounts, trying to beat the November 17th deadline for overseas absentee ballots. Heavy hitters from both parties were out in force in Florida, with former US Secretary of State Warren Christopher heading the Gore team, and former US Secretary of State James Baker heading the Bush team.

Ten days after the election, the controversy swirled around two key questions in Florida. First, was it legal for some counties to do a manual recount of ballots? And second, was it legal for the Florida Secretary of State to reject the recount numbers after the statutory deadline had passed. Several counties were counting ballots by hand, bolstered by a terse ruling from the Florida Supreme Court that said they could continue, though the ruling spoke nothing of the second point. Lawyers for the Bush campaign tried to stop all hand recounts, saying that hand recounting is inherently error-prone and subject to bias. The Gore camp argued that hand counts has been used for centuries and that the only way to instill faith in the election outcome was to resolve nagging count concerns.

Though the Florida Supreme Court ruled that the Florida vote could not be certified until after it had heard arguments from both sides, pushing the deadline to no earlier than the 20th of November, the counting of overseas absentee ballots went ahead as planned. The reported results were highly in Bush's favor, giving him an eventual state-wide lead of 930 votes. Legal wrangling continued through the end of the week, with most court rulings pointing toward allowing manual recounts of ballots. Democrats said that the process provided the most accurate way of counting, where the Republicans countered that hand counting was fraught with human error or deliberate tampering. Over the weekend, with the state Supreme Court's ruling to back them, several counties proceeded with a manual recount.

The Florida Supreme Court heard two and a half hours of arguments from both the Bush and Gore camps on the 20th. The Gore camp argued that there is no hurry to the certification of the election, since US law states that electors do not need to be appointed until December 12. The counties that wished to do recounts ought to be done with the recounts by that time, and the Court should err on the side of caution, allowing every ballot to be counted. The Bush camp argued that the more time that slips by, the more chance there is for fraud in the recount process that Florida law plainly states when the counting and recounting deadlines are and that it is not the place of the judiciary to step on the shoes of the executive departments charged with certifying the election in law duly passed by the legislature. For a day and a half, the Court deliberated on the issue.

On the 21st of November, late in the evening, the Court did rule, saying that the Florida Secretary of State must continue to accept returns from counties doing recounts, but setting a deadline of no later than 5 p.m. on November 26th (as this is a Sunday, the Court stated that if the Secretary's office was not to be open, then an alternate deadline of 9 a.m. on November 27th would substitute - the Secretary assured Floridians that her office would be open on the 26th). The 43-page ruling did not address some issues, such as the countability of some of the ballots. The date chosen by the Court were designed to allow ample time for manual recounts to be finished, and to allow ample time for either candidate to protest the results under Florida law, and still meet the December 12th date set in US law for the appointment of electors.

Vice President Gore appeared on national TV that night, saying that he thought democratic principles were prevailing. He also put the kibosh on some thoughts of asking Bush electors to defect to the Gore camp on Electoral College Day, stating plainly that he did not want to short-circuit the constitutional process.

In Florida's Broward and Palm Beach Counties, manual recounts which started prior to the Supreme Court ruling continued unabated. But in populous Dade County, the canvassing board finally decided not to do any manual recounting, considering the time provided by the Court to still be too little to recount its over 600,000 votes. A proposal to examine all "under vote" ballots (those rejected by the machine counters because of no Presidential preference indicated) was rejected. Initial returns from the other two counties showed only small net gains, but in both directions - Palm Beach for Bush, Broward for Gore, and counting continued through the Thanksgiving holiday. The Bush camp, on the 22nd, appealed the Florida Supreme Court's decision to the U.S. Supreme Court.

Not ready to rest on its laurels, the Bush camp also filed suits on the 25th and 26th against several counties over the counting, or non-counting, of overseas absentee ballots. Armed with the knowledge that the majority of uncounted votes were from military personnel whose ballots did not meet technical requirements such as proper postmarks, the Bush team had a strong military following. The argument was that just as partially poked holes are being counted as proof of voter intent in Broward and Palm Beach counties, a signed ballot, even if not valid under other technicalities, should imply intent on the part of the absentee voter.

Adding drama to the already exciting, or perhaps arduous, story, Republican Vice Presidential hopeful Cheney was hospitalized on the 22nd for what doctors called a minor heart attack. Speculation began to fly about how the Electoral College would handle it if Cheney could not serve. The situation was not without precedent, however, and confidence in the College despite Cheney's health was as high (or as low, depending to whom you spoke) as ever. Cheney was released a few days after being admitted, promoting the notion of healthful living.

Florida Secretary of State Harris's office was open for business on Sunday the 26th, in order to receive any recount numbers and for the purpose of certifying the election. In accordance with the trend of the three weeks past, there was no lack of drama. In Palm Beach County, the canvassing board raced to finish counting ballots before the 5pm deadline. When it was apparent that they would need a couple extra hours, the board sent partial recounts to the Secretary and pleaded for extra time. The Secretary denied the extra time and rejected the partial numbers. She used the county's previous recount numbers instead, and certified the election: By a vote total of 2,912,790 to 2,912,253, or a difference of 537 votes, Bush was certified the winner of Florida's 25 electoral votes.

Bush supporters were ecstatic, and Bush himself appeared on TV on the evening of November 26th to ask the Gore camp to accept the certification and stop any legal proceedings. He announced the appointment of his chief of staff and announced that Cheney would be heading the transition team. But the Gore team was not ready to give up. It was angry about the rejection of the Palm Beach results, and was also challenging the lack of hand recounts in several counties (Florida law requires that multi-county challenges be heard in one county, causing hope for quick and uniform settlement). In addition, in Seminole County, individual voters were challenging absentee ballots that had been sent after ballot applications were allegedly altered by Republican workers to fill in missing required information, and in two counties, local Republicans challenged the disqualification of overseas ballots that had not been properly postmarked.

Officially, the election entered the "contest" phase, a period of time following certification in which challenges to election results could be filed. So though it seemed like the end, the Secretary's announcement on the 26th was really just another beginning.

Gore went on TV on the evening of the 27th to explain his position. To justify the continued court challenges, he said that "ignoring votes means ignoring democracy itself." He vowed to try to ensure that every vote in Florida is counted, regardless of whom the winner would then turn out to be. He cited some counties where thousands of votes had gone uncounted since Election Day, and blamed Republicans for blocking efforts to count all ballots. Most pundits agreed that both Bush and Gore had valid points to make, but that Gore was the one under the gun. Americans were being patient, but their patience was not unlimited.

In a move some found surprising, the US Supreme Court agreed to hear part of the Bush's November 22nd appeal. Though it rejected several of Bush's points of appeal, it did agree to hear arguments a week later, on December 1, concerning the ruling of the Florida Court that allowed hand recounts in some counties but not all. Bush argued that this was a violation of the 14th Amendment's equal protection clause. The Court set a very tight schedule for the filing of arguments and replies. The Court asked that both sides address what they thought the consequences would be if the Court found the Florida election to not be in accordance with 3 USC 5, which deals with the appointment of electors. It also rejected an appeal of a decision not to halt the manual recounts, effectively allowing the counties still counting to continue to do so unfettered.

On Friday, December 1, the Court heard the oral arguments from both sides. The hearing was remarkable in several ways. First, both sides were given 45 minutes to present their case, 15 minutes more than normal. Second, audio tapes of the hearing were released soon after the hearing was over, a direct departure from the normal end-of-term release of tapes. Lastly, the speed at which the case had been heard and with which the justices returned with a verdict was very unusual.

The contest phase of the election was in full swing when Florida's legislature decided that it needed to be prepared. On December 12, according to federal law, electors had to be selected. Most agreed that there was no flexibility in this date. It was possible, the legislature believed, that the court cases concerning the election might not be resolved by the 12th, and rather than be caught by surprise, Republican-dominated legislature started to plan a possible special session. The Gore camp appeared ready to prevent this in any way possible, asking the judge in the Leon County recount case to expedite the proceedings. Gore also asked for an ordered recount of disputed ballots in Dade and Palm Beach, a request which was denied. The judge did agree that all of those two counties' ballots should be moved to Tallahassee, where the case was being heard. The ballots in question numbered just about a million.

The judge in the case, N. Sanders Sauls, opened his court on the Saturday immediately after the Supreme Court hearing. His task was to decide if the recounts of the Palm Beach and Dade county ballots should proceed. Throughout the day on Saturday the 2nd, and almost the entire next day, the judge heard testimony from dozens of witnesses, on topics ranging from voting machines to statistics. One voter testified to about his decision not to vote, and he wondered if he might have somehow marked the ballot unintentionally. The Bush team used its witness to call into question the entire "dimpled chad" question, or, whether or not a mark on a push-hole ballot could be made in error. The Gore team focused on 80 years of Florida election law to make the case that Gore's request for a recount is not unusual and has much precedent in Florida's election history.

Sauls promised, after closing arguments late Sunday night, to render a decision the next day.

Meanwhile, in Seminole county, the suit brought by voters in which the Gore camp had not joined, was starting to gain attention - in that case, it is alleged that Republican Party workers filled in incomplete absentee ballot requests, which the plaintiffs argue should necessitate the elimination of all the county's 15,000 absentee ballots. The other cases brought by Bush supporters also were still in the works, most to ask that rejected overseas ballots be counted.

After just a few days, on December 4, the U.S. Supreme Court returned with their verdict in the case they had heard. The aspect of that case was whether the Florida Supreme Court overstepped its bounds in extending the tally submission deadline from the 14th to the 26th. On the 14th, Bush had a 930-vote lead over Gore, and after the 26th it had changed to a 537-vote lead. The immediate effects of the U.S. Supreme Court decision were not apparent, though Leon County Judge Sauls put off his decision until after he reviewed the opinion.

Technically, the Supreme Court ruling did not invalidate the ruling of the Florida Supreme Court - it merely "set it aside." The opinion was unsigned, meaning that it is unknown how many of the justices voted for the course of action. The Court remanded, or sent back, the case to the Florida Supreme Court so that that court might have a chance to better explain the reasons for why it extended the deadline. It declined to rule on the legality or constitutionality of the Florida Court's ruling. The ruling did not change the 537-vote lead as the Bush camp had hoped.

Judge Sauls did put off his decision in the Leon County case to review the Supreme Court decision, but there was little to review - the two cases were not related in any legal way. So just a few hours late, on December 4, 2000, Sauls ruled on the Palm Beach County and Dade County recount contests. He found that there was no evidence presented by the plaintiff (Gore) to suggest that a hand recount of the ballots in question would change the outcome of the election. He rejected Gore's arguments on all counts. Immediately the Gore camp appealed to the Florida Supreme Court, but the feeling in Florida and in Washington was that the end was near. The Florida Supreme Court agreed to hear the appeal directly, without going through normal appeals court processes, at least in part because the deadline for selecting electors was now just a week away. The Gore challenge was now much tougher - they could only argue that Sauls had made errors in his conduct of the hearings or in his ruling, a standard few seemed to believe could be proven.

The Florida Supreme Court announced that it would hear the appeal on Thursday the 7th of December, with written arguments to be filed by noon the day before. Pundits on both sides of the political spectrum saw this as Gore's last chance, most saying that even if other options were available following the Supreme Court decision, Gore should concede if he lost. Gore, putting on a brave face, said in a news conference on the 5th that he was "optimistic." Bush, on the other hand, had the luxury of being the defendant, and was using the time to explore options for his staff and Cabinet. Bush also got his first national security briefing from the CIA, at the request of the Clinton administration (Gore, as Vice President, already got a daily briefing).

On the evening of the 5th, Bush appeared for his first full television interview since the election. In it, he expressed his belief that he had won the electoral vote, but insisted on being called "Governor" and not "President-elect," because of all the outstanding suits. He also declined to call for Gore to concede nor did he fault Gore for his efforts, saying that both he and Gore had "poured our heart and soul" into the campaign.

With victory in the Florida Supreme Court appearing to be unlikely, all eyes turned to court cases in Seminole and Martin Counties. Both were brought by local Democrats that accused Republican election workers of altering absentee ballot applications, by adding or fixing missing information, and, in the Martin County case, of removing the applications from the county election supervisor's office. Though the Gore team was not a party to the cases, both of which had hearings held on December 6th, many said that Gore's best chances hinged on them. The plaintiffs were seeking to have all absentee ballots thrown out, a move which could put Gore far into the lead, since Bush won a vast majority of the ballots. The Seminole County case contested 15,000 ballots, the Martin County case about 10,000. Both cases were heard in the circuit court in Leon County. Another suit filed in Bay County alleges that Florida Governor Jeb Bush sent letters to residents illegally urging them to stay home and vote by absentee ballot instead of at the polls. It sought to affect some 20,000 ballots.

Not to be outdone, state Republicans contested the rules used to throw out some overseas absentee ballots in seven counties. The GOP claimed in particular that procedures used disenfranchised military personnel in particular. The suit stated that the lack of a postmark on mail coming from military post offices should not be used as a basis to exclude a ballot. The suit is similar to one filed earlier by the GOP against 14 counties, but later dropped. The case was heard in U.S. District Court on the 5th.

In the Florida Legislature, as the December 12th federal deadline for the appointment of electors drew near, arrangements were being made to hold a special session to appoint those electors if the legal challenges were not yet complete by the deadline.

The Seminole County hearing was held all day on the 6th, and the Martin County hearing was held in sessions book-ending the Seminole County hearing, with testimony running until midnight. There was general agreement that technical violations of the law occurred, but the issue was whether or not the violations amounted to fraud. The Democratic lawyers tried to paint the filling in of missing data on absentee ballot applications as a grand conspiracy, while Republican lawyers tried to paint the same acts as those of well-meaning political workers trying to ensure that a Party error did not disenfranchise voters. Both trials continued on the 7th, marking one month since Election Day, with closing arguments in both setting up rulings the next day.

Also on the 7th, the Florida Supreme Court heard oral arguments in the Gore appeal of the case denied by Judge Sauls. The justices seemed skeptical that the requested recount could be completed by the December 12th deadline, but Democratic lawyers assured the Court that the recount would be finished if allowed. Republican lawyers' main argument against the recount was that the courts had no business ruling in the case at all. After just over an hour of oral arguments, the justices took the case under consideration, promising a rapid response.

Other possible trouble loomed for the Bush/Cheney ticket on the 7th, outside of Florida. A federal court granted a hearing on the issue of whether Cheney was a resident of Texas. Cheney claimed residency in Wyoming, though he had physically lived in Texas for quite some time before changing his status. If he was found to be a resident of Texas, Texas electors would not be able to vote for both Bush and Cheney, according to the 12th Amendment. Though several lower courts had thrown out the case, the appeals court decided to take up the issue. The issue sounded worse than it was as the press misreported that no elector can vote for two people from the same state. The seriousness of the issue was no less important for Texas electors, however, because of the closeness of the election. But quickly the judges in the case ruled that Cheney met the constitutional requirements for citizenship in Wyoming, clearing the way for all Republican electors to vote for both Bush and Cheney.

December 8, 2000 was lined up to be a fateful day for the Gore campaign. Rulings in both absentee ballot application cases were expected, along with one from the Florida Supreme Court, and a special session of the Legislature to consider its appointment electors. Though delayed, the judges in the Seminole and Martin County cases both ruled that the absentee ballots were not to be thrown out, with one judge saying that though there were irregularities, the integrity of the election had not been violated. The Gore team, which had been watching the cases but had never been a party to them, looked to the Supreme Court for the last ruling. The Florida Supreme Court, on the 12th, upheld the decisions in the Seminole and Martin County cases.

After weeks of defeats, many felt the Supreme Court would deal the final blow - but instead, in a split 4-3 decision, the Florida Court ruled that not only did the disputed Dade and Palm Beach county undervote ballots have to be hand counted, but all undervotes in the whole state would have to be recounted. Because of the time crunch, the Court ordered the counts begin immediately. Additionally, the Court added unaccounted votes from Palm Beach and Dade Counties, cutting Bush's lead from 537 votes to 154. But the victory was short-lived. Though statewide standards were set and some actual counting got under way, the U.S. Supreme Court stepped in on Saturday, December 9th. By a 5-4 vote, it stopped all recounts and called for a hearing on the morning of the 11th, to hear arguments as to the legality of the newly ordered recount. Once again the courts were extending the process . and polls showed more and more people were tiring.

Amid raucous protests outside, the U.S. Supreme Court met on the morning of the 11th. Bush's attorneys asked the court to uphold its stay of the recounts, charging that the Florida Supreme Court far over stepped its bounds in ordering the recount. It called the Court's recounting scheme "arbitrary, capricious, unequal, and standardless," and a violation of the Article 2 powers of the state legislature to decide how electors are to be chosen. The Gore team countered that the Florida Court was simply interpreting the laws provided by the Florida legislature, as all courts do, and urged the U.S. Supreme Court to rule promptly so that counting could be completed before the December 12th Title 3 federal deadline for selection of electors.

December 12, the day that 3 USC 5 said that electors must be chosen, came in like a rush. What would the Florida Legislature do? What about the Supreme Court? The legislature did what it felt it had to do to ensure that Florida was represented in the Electoral College. On the 12th, its House voted 79-41 to approve the Bush slate of electors. The State Senate decided to wait until the 13th to take up the issue, hoping the Supreme Court will have ruled by then.

The decision came at a late hour, 10 p.m. Eastern time, and it did not bode well for Gore. By a vote of 7-2, the Court said that the Florida Supreme Court had erred in calling for a manual recount. But by only a 5-4 vote, it declared that the counting of the undervotes only amounted to a violation of the Constitution's Equal Protection Clause. It sent the case back to the Florida Supreme Court, essentially saying that there may be remedies for Gore, but whatever the remedy, it could not include a recount. With a recount seeming to be the only possible way of keeping Gore's chances alive, the contest appeared to finally be over. Calls from even ardent supporters began to ring out - Gore should finally concede the election.

The Gore team decided to take the night to examine the decision and see if any options were left open. By early next morning, it was clear that there weren't. The Vice President prepared to address the nation on the evening of the 13th, as did the Governor an hour thereafter.

As expected Gore conceded in his speech. He commented on the Supreme Court ruling days before, saying "Let there be no doubt, while I strongly disagree with the court's decision, I accept it." At the same time, he called for all Americans to unite behind President Bush: "I personally will be at his disposal, and I call on all Americans — I particularly urge all who stood with us to unite behind our next president. This is America. Just as we fight hard when the stakes are high, we close ranks and come together when the contest is done." Gore concluded by saying: "As for the battle that ends tonight, I do believe as my father once said, that no matter how hard the loss, defeat might serve as well as victory to shape the soul and let the glory out."

Bush's speech, given from the floor of the Texas House, was conciliatory. Bush was clearly trying to build a bipartisan feeling from the starting gate: "Tonight I chose to speak from the chamber of the Texas House of Representatives because it has been a home to bipartisan cooperation. We've had spirited disagreements. And in the end, we found constructive consensus. It is an experience I will always carry with me, an example I will always follow." He promised to serve to the best of his ability, to be a President for all Americans: "I was not elected to serve one party, but to serve one nation. The president of the United States is the president of every single American, of every race and every background. Whether you voted for me or not, I will do my best to serve your interests and I will work to earn your respect."

The race run, the challenges over, the decision made, the electorate breathed a collective sigh of relief.

Throughout the nation, people began to take second looks at the Electoral College system. Gore was pretty clearly the popular vote winner, though only by about 500,000 votes out of over 100 million cast. Subjects that used to cause students' eyes to glaze over in civics class were suddenly the focus of barroom, water cooler, and dinner table discussions. Rumors and theories were flying about like so many swarms of mosquitoes. News organizations began their own counts of the disputed ballots, once they became public records, in an attempt to put the issue to rest and to find out, in the words of the Miami Herald, "What went wrong." Most found that Gore would not have overcome his vote deficit, even with the most liberal of standards for counting partially-marked ballots.

Calls for some sort of national standards for balloting, to set residency requirements, and to set methods of vote tabulation and how to determine when a recount should be done and when a hand recount should be done. Everyone agreed that there were flaws in the system, flaws which may not be fixable, and flaws which usually had a negligible effect on the outcome of any one election, let alone a national election. How to make changes is another story.

In his dissent of the December 12th decision, U.S. Supreme Court Justice John Paul Stevens lamented that the Bush case relied on "an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed." He echoed the fears of many that the impartiality of the judiciary, at the federal level too, but particularly at the state level, was suspect.

Of the Bush presidency, no one knew how the election dispute would affect its effectiveness. Calls for a bipartisan Cabinet, unheard of but for a few notable exceptions, rang out. Democrats chomped at the bit for the 2002 election season, hoping voter distrust of the system and some lingering animosity or suspicion of the Republicans would help carry them to the congressional leadership, and ultimately to the White House in 2004. Republicans were faced with a close House and a tied Senate, and moderate members of both parties were courted.

The 2000 election could be called a watershed event in American history. But it will only be those who write the history books a generation from now who will be able to say for sure - embroiled as we are today in the heat of it all, we cannot tell. Suffice it to say, it was an interesting time to be an observer of American politics.

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Why was the 2000 Presidential Election historically significant?

The 2000 Presidential Election was a contentious race between George W. Bush and Vice President Al Gore. As the results came in, Florida showed a close margin of victory for Bush, with the then Texas Governor leading by 900 votes when the counting of military ballots began, which triggered a mandatory recount.

Litigation ensued, reaching the United States Supreme Court in Bush v Gore. The Supreme Court ruled in favor of Bush, granting him the victory, despite Gore’s lead in the overall national popular vote.

The popular vote came down to 50,456,002 for George W. Bush and 50,999,897 for Al Gore. However, the electoral results showed Bush with 271 versus 266 for Gore. Below is the Electoral College map from the 2000 election.


Contents

The controversy began on election night, November 7, 2000, when the national television networks, using information provided to them by the Voter News Service, an organization formed by the Associated Press to help determine the outcome of the election through early result tallies and exit polling, first called Florida for Gore in the hour after polls closed in the peninsula (in the Eastern time zone) but about ten minutes before they closed in the heavily Republican counties of the panhandle (in the Central time zone). Later in the evening, the networks reversed their call, moving to "too close to call", then later giving it to Bush then they retracted that call as well, finally indicating the state was "too close to call". [2] Gore phoned Bush the night of the election to concede, then retracted his concession after learning how close the Florida count was. [3]

Bush led the election-night vote count in Florida by 1,784 votes. The small margin produced an automatic recount under Florida state law, which began the day after the election. That first day's results reduced the margin to just over 900 votes. [4] Once it became clear that Florida would decide the presidential election, the nation's attention focused on the manual recount.

The Florida election was closely scrutinized after Election Day. Due to the narrow margin of the original vote count, Florida Election Code 102.141 mandated a statewide machine recount, [5] which began the day after the election. It was ostensibly completed on November 10 in the 66 Florida counties that used vote-counting machines and reduced Bush's lead to 327 votes. [4] [6] According to legal analyst Jeffrey Toobin, later analysis showed that a total of 18 counties—accounting for a quarter of all votes cast in Florida—did not carry out the legally mandated machine recount, but "No one from the Gore campaign ever challenged this view" that the machine recount had been completed. [7]

Once the closeness of the election in Florida was clear, both the Bush and Gore campaigns organized themselves for the ensuing legal process. On November 9, the Bush campaign announced they had hired George H. W. Bush's former Secretary of State James Baker and Republican political consultant Roger Stone to oversee their legal team, [8] [9] and the Gore campaign hired Bill Clinton's former Secretary of State Warren Christopher.

Following the machine recount, the Gore campaign requested a manual recount in four counties. Florida state law at the time allowed a candidate to request a manual recount by protesting the results of at least three precincts. [10] The county canvassing board was then to decide whether to do a recount, as well as the method of the recount, in those three precincts. [11] If the board discovered an error that in its judgment could affect the outcome of the election, they were then authorized to do a full recount of the ballots. [12] This statutory process primarily accommodated recounts for local elections. The Gore campaign requested that disputed ballots in Miami-Dade, Broward, Palm Beach and Volusia Counties be counted by hand. Volusia County started its recount on November 12. Florida statutes also required that all counties certify and report their returns, including any recounts, by 5:00 p.m. on November 14. The manual recounts were time-consuming, and it soon became clear that some counties would not complete their recounts before the deadline. On November 13 the Gore campaign and Volusia and Palm Beach Counties sued to have the deadlines extended. [13]

Meanwhile, the Bush campaign worked to stop the recount. On November 11, it joined a group of Florida voters in suing in federal district court for a preemptive injunction to stop all manual recounting of votes in Florida. Bush's lawyers argued that recounting votes in just four counties violated the 14th Amendment and also that similarly punched ballots could be tabulated differently since Florida had no detailed statutory standards for hand-counting votes. [14] : 8–9 On November 13, the federal court ruled against an injunction.

On November 14, the original deadline for reporting results, with the Volusia County recount complete, Bush held a 300-vote lead. The same day, a state judge upheld that deadline but ruled that further recounts could be considered later. Florida's secretary of state, Katherine Harris, a Republican, then gave counties until 2:00 p.m. on November 15 to provide reasons for recounting their ballots. The next day, the Florida Supreme Court allowed manual recounts in Palm Beach and Broward Counties to continue but left it to a state judge to decide whether Harris must include those votes in the final tally. Miami-Dade County decided on November 17 to conduct a recount but suspended it on November 22. The Gore campaign sued to force Miami-Dade County to continue its recount, but the Florida Supreme Court refused to consider the request.

As the manual recounts continued, the battle to certify the results intensified. On November 17, Judge Terry Lewis of Leon County Circuit Court permitted Harris to certify the election results without the manual recounts, but on the same day the Florida Supreme Court stayed that decision until it could consider an appeal by Gore. On November 21, the Florida Supreme Court ruled unanimously that manual counts in Broward, Palm Beach and Miami-Dade Counties must be included and set 5:00 p.m. on November 26 as the earliest time for certification. After that decision, the Bush campaign appealed to the U.S. Supreme Court, arguing that the state court effectively rewrote state election statutes after the vote.

As the manual recounts progressed, most of Florida's counties were considering overseas absentee ballots. That part of the vote count was completed on November 18, increasing Bush's lead to 930 votes. The Palm Beach County recount and the Miami-Dade County recount (having been suspended) were still incomplete at 5:00 p.m. on November 26, when Harris certified the statewide vote count with Bush ahead by 537 votes. The next day, Gore sued under Florida's statutory construct of the "contest phase". On November 28, Judge N. Sanders Sauls of Leon County Circuit Court rejected Gore's request to include the recount results from Miami-Dade and Palm Beach Counties. Gore appealed that decision to the Florida Supreme Court. Sauls also rejected Gore's contest of the election result on December 4, and Gore appealed that decision too. On December 8, the Florida justices, by a 4–3 vote, rejected the selective use of manual recounts in just four counties and ordered immediate manual recounts of all ballots in the state where no vote for president had been machine-recorded, also known as undervotes.

The U.S. Supreme Court convened on December 1 to consider Bush's appeal. On December 4, the Court ordered the Florida Supreme Court to clarify its ruling that had extended the certification date. On December 9, the Court suspended the manual recount, in progress for only several hours, on the grounds that irreparable harm could befall Bush, according to a concurring opinion by Justice Antonin Scalia.

Meanwhile, on December 6 the Republican-controlled Florida legislature convened a special session to appoint a slate of electors pledged to Bush, as the U.S. Constitution bestows upon state legislatures the duty to determine how its state's electors are appointed. On December 12, the same day as the U.S. Supreme Court ruling, the Florida House approved awarding the state's electoral votes to Bush, but the matter was moot after the Court's ruling. Some have argued that awarding the electors in this manner would be illegal. [15]

On December 13, Gore conceded the election to Bush in a nationally televised address.

During the recount, controversy ensued with the discovery of various irregularities that had occurred in the voting process in several counties. Among these was the Palm Beach "butterfly ballot", which resulted in an unusually high number of votes for Reform Party candidate Pat Buchanan. Conservatives claimed that the same ballot had been successfully used in the 1996 election [16] [17] in fact, it had never been used in a Palm Beach County election among rival candidates for office. [18] : 215–216 Also, before the election, the Secretary of State's office had expunged tens of thousands of citizens identified as felons from the Florida voting rolls, with African-Americans identified on some counties' lists at up to five times their share of the population. Democrats claimed that many of these were not felons and should have been eligible to vote under Florida law. [19] It was expected that had they been able to vote, most would have chosen the Democratic candidate. [20] Additionally, this Florida election produced many more "overvotes" than usual, especially in predominantly African-American precincts in Duval County (Jacksonville), where some 21,000 ballots had multiple markings, such as two or more choices for president. Unlike the much-discussed Palm Beach County butterfly ballot, the Duval County ballot spread choices for president over two non-facing pages. [21] At the same time that the Bush campaign was contesting hand recounts in Democratic counties, it accepted hand recounts in Republican counties that gained them 185 votes, including where Republican Party workers had been permitted to correct errors on thousands of applications for absentee ballots for Republicans. [22] Alternately, Republicans charged that Democrats had registered non-citizens to vote, fought to exclude overseas military ballots, and arbitrarily changed vote-counting criteria after the election. [16]

Political commentator and author Jeff Greenfield observed that the Republican operatives in Florida talked and acted like combat platoon sergeants in what one called "switchblade time", the biggest political fight of the century. On the other hand, he said, Democrats talked like referees with a fear of pushing too hard, not wanting to be seen as sore losers. [18] : 221–234

While Democrats did make their way down to Florida, there was nothing like the certainty or the passion that ignited Republicans. The only exception: African-Americans. For all the furor over Palm Beach, it was black precincts where voters had been turned away, denied a ballot because some had been mislabeled as felons, blocked from voting because of bureaucratic bungles, or because the huge increase in black turnout had overwhelmed local officials. For those with memories going back four decades, all this was no accident. It was instead a painful reminder of the days when the battle for the ballot was, literally, a life-and-death matter. At an NAACP-sponsored hearing in Miami four days after the election, prospective voters told of police cars blocking the way to the polls, of voters harassed by election workers. It was anecdotal evidence at best, and local authorities argued persuasively that the police presence near a polling place was pure coincidence. Such explanations did little to lessen the sense of anger among black Democrats.

Controversial issues Edit

Various flaws and improprieties in Florida's electoral processes were immediately apparent, while others were reported after later investigation. Controversies included:

  • All five major U.S. TV news networks (CBS, NBC, ABC, Fox and CNN) assumed that they could confidently call a winner in any state "where the vast majority of polls had closed", based on history. No call in a state with two different poll-closing times had ever turned out wrong. [18] While most of Florida is in the Eastern time zone, polls in the westernmost counties in Florida were open for another hour, until 8:00 p.m. EST, as they are in the Central time zone. The network calls were made about ten minutes before the polls in the Central time zone closed, based on the Voter News Service calling the state of Florida for Gore at 7:48 p.m. EST. This region of the state traditionally voted mostly Republican. A survey estimate by John McLaughlin & Associates put the number of voters who might not have voted due to the networks' call as high as 15,000, which could have reduced Bush's margin of victory by an estimated 5,000 votes [23] a study by conservative researcher John Lott found that Bush's margin of victory was reduced by 7,500 votes. [24] This survey assumed that the turnout in the Panhandle counties, which was 65%, would have equaled the statewide average of 68% if the state had not been called for Gore while the polls were still open. But the relatively smaller turnout percentage in the Panhandle has been attributed to the surge in the black vote elsewhere in Florida to 16% of the total, from 10% of the total in 1996. [18] Research conducted by Henry Brady and David Collier strongly disputed Lott and McLaughlin's findings. [25] Brady and Collier were sharply critical of Lott's methodology and claimed when all relevant factors are accounted for, Bush was likely cost only between 28 and 56 votes. [26] In a 2010 television special by the TV Guide Network, the "2000 Election Flip Flop Coverage" ranked #3 on a list of the 25 biggest TV blunders, having caused news outlets to change the way they report on election night. [27][28]
  • Democratic State Senator Daryl Jones said that there had to have been an order to set up roadblocks in heavily Democratic regions of the state on the day of the election. [29] The Voting Section of the U. S. Department of Justice later investigated reports from the Tallahassee and Tampa areas and concluded that there was no evidence that roadblocks were related to the election or had occurred in close proximity to voting places. [30]
  • On November 8, Florida Division of Elections staff prepared a press release for Secretary of State Katherine Harris that said overseas ballots must be "postmarked or signed and dated" by Election Day. It was never released. [4] : 16 Harris did send out a letter saying that absentee ballots without postmarks must be discarded, but Florida's Attorney General subsequently said they should not be. [31] On November 13, Harris issued her first statement on overseas ballots, saying that they had to be "executed" on or before Election Day, not "postmarked on or prior to" Election Day. [4] : 18 Over Thanksgiving, 14 county boards decided to include 288 overseas ballots that had been rejected days earlier, an act that was dubbed the Thanksgiving stuffing. [32]
  • On November 14, Democratic lawyer Mark Herron authored a memo on how to challenge flawed ballots, including overseas ballots cast by members of the military. The Herron memo gave postmark and "point of origin" criteria that Herron maintained could be used to challenge overseas ballots. It was in line with a letter sent out by Harris stating that if a postmark was not present on an overseas ballot, it had to be thrown out. Meanwhile, Republicans relied on their own 52-page manual for the same purpose. [14][32] But on November 19, Democratic vice-presidential candidate Senator Joseph I. Lieberman appeared on Meet the Press and said that election officials should give the "benefit of the doubt" to military voters rather than disqualifying any overseas ballots that lacked required postmarks or witness signatures. Florida Attorney General Bob Butterworth, a Gore supporter, later told the counties to reconsider those ballots without a postmark. [33] Before that, the Democrats had pursued a strategy of persuading counties to strictly enforce postmark requirements by disqualifying illegal ballots from overseas, which were predominantly for Bush. [34] In contrast, Republicans pursued a strategy of disqualifying overseas ballots in counties that favored Gore and pressuring elections officials to include flawed overseas ballots in Bush counties. [32]
  • A suit by the National Association for the Advancement of Colored People (NAACP v. Harris) argued that Florida was in violation of the Voting Rights Act of 1965 and the United States Constitution's Equal Protection Amendment. A settlement agreement was reached in this suit with ChoicePoint, the owner of DBT Online, a contractor involved in preparing Florida's voter roll purge list. [35]
  • Four counties distributed sample ballots to voters that differed from the actual ballot used on election day, including Duval County, which used a caterpillar ballot, so called because the list of presidential candidates stretched over two pages. The instructions on the sample ballots said "Vote every page". More than 20% of ballots in black precincts of Duval County were rejected because of votes for president on each page. Further, counties and precincts with large black populations disproportionately had technologies where ballots would predictably go uncounted. In punchcard counties, 1 in 25 ballots had uncountable presidential votes. In comparison, counties that used paper ballots scanned by computers at voting places (in order to give voters a chance to correct their ballot if it had an error) had just 1 in 200 uncountable ballots. [36] A systematic investigation by the United States Commission on Civil Rights concluded that although blacks made up 11% of Florida's voting population, they cast 54% of the uncounted ballots. [37]
  • Between May 1999 and Election Day 2000, two Florida secretaries of state, Sandra Mortham and Katherine Harris, contracted with DBT Online Inc., at a cost of $4.294 million, to have the "scrub lists" reworked. In a May 2000 list, over 57,000 voters were identified as felons, with all counties being ordered to remove all listed names from their voting rolls. Democrats claimed that many simply had names similar to actual felons, some listed "felonies" were dated years in the future, and some were random. Some counties refused to use the list, finding it error-ridden. In other counties, supervisors of elections notified those at risk of being scrubbed, giving them a chance to prove they were not felons, which a small number chose to do. In most cases, those on the scrub list were not told that they weren't allowed to vote until they were turned away at the polls. An estimated 15% of the names on the county lists were in error. Florida was the only state in the nation to contract the first stage of removal of voting rights to a private company and did so with directions not to use cross-checks or the company's sophisticated verification plan. [19] See Florida Central Voter File. Katherine Harris was ultimately responsible for oversight of the state's elections and certification of the results, even though she had served as a co-chair of the Bush campaign in Florida. Furthermore, George W. Bush's brother Jeb Bush was serving his first of two terms as the governor of Florida at the time. Although Jeb Bush recused himself from involvement in the recount, Democrats alleged there was still an appearance of possible impropriety.
  • Some observers, such as Washington County Elections Chief Carol Griffen, have argued that Florida was in violation of the National Voter Registration Act of 1993 by requiring those convicted of felonies in other states (and subsequently restored their rights by said states) to request clemency and a restoration of their rights from Governor Jeb Bush, a process that could take two years and ultimately was left to the governor's discretion. [38] In 1998 Schlenther v. Florida Department of State held that Florida could not prevent a man convicted of a felony in Connecticut, where his civil rights had not been lost, from exercising his right to vote. [citation needed]
  • The Brooks Brothers riot: A raucous demonstration by several dozen paid activists, mostly Republican House aides from Washington, flown in at Republican Party expense to oppose the manual recount in Miami-Dade County. [39] The recount was shut down a couple hours after the screaming protesters arrived at the county offices, where they began pounding on the doors, chanting and threatening to bring in a thousand Republicans from the vociferous Cuban-American community. Some Republicans contend that their demonstration was peaceful and was in response to the Miami-Dade election board's decision to move the ballot counting to a smaller room closer to the ballot-scanning machines to speed up the process. The election board consisted of three appointees, Myriam Lehr and David Leahy, who were Independents, and Lawrence King, a Democrat. The demonstration, which took place in view of multiple national network television cameras, resulted in the election board reversing their earlier decision to recount ballots, after determining that it could not be completed by the court-issued deadline. The Republican representatives involved in the recount effort credit this demonstration, dubbed the "Brooks Brothers Riot" because of the suits and Hermès ties worn by the Republican operatives, as a key factor in "preventing the stealing of the 2000 presidential election". [40][41][42]
  • The suppression of vote pairing. Several websites sprang up to match Nader supporters in swing states like Florida with Gore supporters in non-swing states like Texas. For example, the Nader supporters in Florida would vote for Gore, and the Gore supporters in Texas would vote for Nader. This would have allowed Nader to get his fair share of the vote and perhaps to cross the nationwide total vote threshold to allow the Green Party to participate in the presidential debates in the 2004 election, while helping Gore to carry swing states. Six Republican state secretaries of state, led by Bill Jones of California, threatened the websites with criminal prosecution and caused some of them to reluctantly shut down. The ACLU got involved in a legal (not political) effort to protect the sites, and the Federal Ninth Circuit Court of Appeals ruled against Jones seven years later. The vote-pairing sites allegedly tallied 1,412 Nader supporters in Florida who voted for Gore. [43][44]
  • The actions of the Florida Supreme Court. At the time, 6 of the Court's 7 justices were Democrats. [45] It was argued, particularly by Republicans, that the court was exceeding its authority and issuing partisan rulings biased in Gore's favor. On November 17, the court acted "on its own motion" to stay the official certification of the election until it could hear Gore's appeal of Harris's decision to reject late-filed hand recounts, while specifically allowing counting of absentee and other ballots to continue, an action the Gore legal team did not request. [46] Similarly, in 4–3 split decision, on December 8, the court ordered a statewide counting of undervotes, which the Gore team had also not requested. [47]James Baker, among other Republicans, in speaking of this ruling, accused the court of being "inconsistent with Florida law", on which basis Bush appealed to the U.S. Supreme Court. [48] Democrats argued that the Florida Supreme Court was simply trying to ensure a fair and accurate count. [49]
  • While the Bush campaign opposed the Gore campaign's requests for manual recounts in four heavily Democratic counties, they quietly accepted manual recounts from four Republican-leaning counties. Polk, Hamilton, Seminole, and Taylor Counties, which used the more reliable optical scanners, decided to manually examine unreadable ballots (both undervotes and overvotes) during the counties' electronic recounts, in accordance with those counties' existing policies (see County-by-county standards below). These manual counts garnered Bush a net gain of 185 votes. [22]

Palm Beach County's butterfly ballots Edit

Many voters in Palm Beach County who intended to vote for Gore actually marked their ballots for Pat Buchanan or spoiled their ballots because they found the ballot's layout to be confusing. The ballot displayed the list of presidential running-mate pairs alternately across two adjacent pages, with a column of punch spaces down the middle. Bush's name appeared at the top of the ballot, sparing most Bush voters from error. About 19,000 ballots were spoiled because of overvotes (two votes in the same race), compared to 3000 in 1996. [18] : 215–221 According to a 2001 study in the American Political Science Review, the voting errors caused by the butterfly ballot cost Gore the election: "Had PBC used a ballot format in the presidential race that did not lead to systematic biased voting errors, our findings suggest that, other things equal, Al Gore would have won a majority of the officially certified votes in Florida." [50]

On The Today Show of November 9, 2000, Buchanan said, "When I took one look at that ballot on Election Night . it's very easy for me to see how someone could have voted for me in the belief they voted for Al Gore." [51]

Although Bush spokesman Ari Fleischer said on November 9 that "Palm Beach County is a Pat Buchanan stronghold and that's why Pat Buchanan received 3,407 votes there", [52] Buchanan's Florida coordinator, Jim McConnell, responded by calling that "nonsense", and Jim Cunningham, chairman of the executive committee of Palm Beach County's Reform Party, responded, "I don't think so. Not from where I'm sitting and what I'm looking at." Cunningham estimated the number of Buchanan supporters in Palm Beach County to be between 400 and 500. Asked how many votes he would guess Buchanan legitimately received in Palm Beach County, he said, "I think 1,000 would be generous. Do I believe that these people inadvertently cast their votes for Pat Buchanan? Yes, I do. We have to believe that based on the vote totals elsewhere." [53]

The ballot had been redesigned earlier that year by Theresa LePore (Supervisor of Elections and member of the Democratic Party). She said that she used both sides of the ballot in order to make the candidate names larger so the county's elderly residents could more easily see the names. [54]

Influential decisions Edit

Florida Supreme Court appeals Edit

The case of Palm Beach Canvassing Board v. Katherine Harris (also known as Harris I) was a lawsuit about whether county canvassing boards had authority to extend manual recounts in order to inspect ballots for which the machine counter did not register a vote. The court ruled that counties had that authority and to allow time for these efforts, extended the statutory deadline for the manual recounts. It also stayed the state certification to November 26.

There were two main issues: [55] [56] [57] [58]

  • Whether the county canvassing boards' authority to conduct manual recounts to correct "errors in the vote tabulation" extended to efforts to remedy situations where machines, though perhaps correctly functioning to detect properly marked ballots, did not count votes on certain ballots on which votes might be found under a manual inspection with an "intent of the voter" standard (Harris had ruled that it did not) and
  • How such recounts in the case at hand could be made to fit into the statutory scheme, which, as Harris interpreted it, contemplated a quick certification followed, if necessary, by an election contest during which a court (rather than the canvassing boards) would be empowered to correct errors.

Regarding the first issue, the court ruled that, while Harris was generally entitled to deference in her interpretation of state laws, in this case the interpretation "contravene[d] the plain meaning" of the phrase "error in the vote tabulation" and so must be overturned.

Regarding the second issue, the court ruled that the statutory scheme must be interpreted in light of the Florida state constitution's declaration that "all political power is inherent in the people," with any ambiguities therefore construed "liberally." Preventing the canvassing boards from continuing to conduct recounts beyond the seven-day timeframe (specified in the law, but with ambiguity as to how firm it was intended to be), would "summarily disenfranchise innocent electors [voters]" and could not be allowed unless the recounts continued for so long as to "compromise the integrity of the electoral process." The court ordered counties to submit returns by November 26, until which time the stay of certification would stand. [59]

Aside from this case, also in dispute were the criteria that each county's canvassing board would use in examining the overvotes and/or undervotes. Numerous local court rulings went both ways, some ordering recounts because the vote was so close and others declaring that a selective manual recount in a few heavily Democratic counties would be unfair.

Eventually, the Gore campaign appealed to the Florida Supreme Court, which ordered the recount to proceed. The Bush campaign subsequently appealed to the Supreme Court of the United States, which took up the case Bush v. Palm Beach County Canvassing Board on December 1. On December 4, the U.S. Supreme Court returned this matter to the Florida Supreme Court with an order vacating its earlier decision. In its opinion, the Supreme Court cited several areas where the Florida Supreme Court had violated both the federal and Florida constitutions. The Court further held that it had "considerable uncertainty" as to the reasons given by the Florida Supreme Court for its decision. The Florida Supreme Court clarified its ruling on this matter while the United States Supreme Court was deliberating Bush v. Gore.

At 4:00 p.m. EST on December 8, the Florida Supreme Court, by a 4 to 3 vote, rejected Gore's original four-county approach and ordered a manual recount, under the supervision of the Leon County Circuit Court and Leon County Elections Supervisor Ion Sancho, of all undervoted ballots in all Florida counties (except Broward, Palm Beach and Volusia) and the portion of Miami-Dade county in which such a recount was not already complete. That decision was announced on live worldwide television by the Florida Supreme Court's spokesman Craig Waters, the Court's public information officer. The results of this tally were to be added to the November 26 tally.

U.S. Supreme Court proceedings Edit

The recount was in progress on December 9 when the United States Supreme Court, by a 5 to 4 vote (Justices Stevens, Souter, Ginsburg and Breyer dissenting), granted Bush's emergency plea for a stay of the Florida Supreme Court recount ruling, stopping the incomplete recount.

About 10 p.m. EST on December 12, the United States Supreme Court handed down its ruling. Seven of the nine justices saw constitutional problems with the Equal Protection Clause of the United States Constitution in the Florida Supreme Court's plan for recounting ballots, citing differing vote-counting standards from county to county and the lack of a single judicial officer to oversee the recount. By a 5–4 vote the justices reversed and remanded the case to the Florida Supreme Court "for further proceedings not inconsistent with this opinion", prior to the optional "safe harbor" deadline which the Florida court had said the state intended to meet. With only two hours remaining until the December 12 deadline, the Supreme Court's order effectively ended the recount.

The decision was extremely controversial due to its partisan split and the majority's unusual instruction that its judgment in Bush v. Gore should not set precedent but should be "limited to the present circumstances". Gore said he disagreed with the Court's decision, but conceded the election.

Florida Secretary of State Katherine Harris's certification of the election results was thus upheld, allowing Florida's electoral votes to be cast for Bush, making him president-elect.

Florida counties' recount decisions Edit

Florida Attorney General Robert Butterworth in his advisory opinion to county canvassing boards wrote: [60]

The longstanding case law in Florida [ ] has held that the intent of the voters as shown by their ballots should be given effect. Where a ballot is so marked as to plainly indicate the voter's choice and intent, it should be counted as marked unless some positive provision of law would be violated. As the state has moved toward electronic voting, nothing in this evolution has diminished the standards first articulated in such [judicial] decisions . that the intent of the voter is of paramount concern and should be given effect if the voter has complied with the statutory requirement and that intent may be determined. . The Florida Statutes contemplate that where electronic or electromechanical voting systems are used, no vote is to be declared invalid or void if there is a clear indication of the intent of the voter as determined by the county canvassing board.

Conservative writer Andrew Sullivan in a contemporaneous article: [61]

There is a real issue here about what voting actually means. To some, voting is a right that should be guaranteed regardless of any incompetence, error, failure, or irresponsibility on the part of the voter. . Others have a different view. They argue that American democracy is . a far stricter, Lockean, Anglo-American system based on the letter of the law and a successful vote cast by a rational, responsible voter. In this constitutional system, the "will of the people" is an irrelevant abstraction. . From affirmative action and hate-crime laws it's a small step to ensuring that all voters, however negligent, have their intent, however vague, reflected in the final result of an election.

Florida Code Section 101.5614[5] states that no vote "shall be declared invalid or void if there is a clear indication of the intent of the voter." [4] A physical mark on a ballot, at or near a designated target, is such an indication.

Pre-certification decisions that altered certified Florida 2000 presidential vote total
Decision-makers Decisions Impact on vote count [a]
Gore Bush
Canvassing boards around the state Decisions by some canvassing boards to count illegal overseas absentee ballots. [b] At Thanksgiving, decisions by 14 county boards to reverse prior decisions in order to include 288 ballots that had been rejected days earlier. [c] [32] [62] [63] [64] 194 [d] 486 [d]
Canvassing boards of Alachua, Bay, Bradford, Charlotte, Columbia, Escambia, Franklin, Gulf, Hendry, Hernando, Holmes, Lake, Manatee, Okaloosa, Okeechobee, St. Johns and Washington Counties Election day decisions by 17 Optiscan counties not to "manually review overvotes that couldn't be properly read by machine" [e] [f] [65] [66] [67] -1278 -826
Canvassing boards of Alachua, Bay, Charlotte, Citrus, Columbia, Escambia, Franklin, Gadsden, Holmes, Jackson, Lake, Leon, Manatee, Monroe, Okaloosa, Okeechobee, St. Johns, Suwanee and Washington Counties Election day decisions by 19 Optiscan counties not to "manually review undervotes that couldn't be read by counting machines" [e] [g] [22] [65] -789 [h] -733 [h]
Canvassing boards of Collier, DeSoto, Dixie, Duval, Glades, Hardee, Highlands, Hillsborough, Indian River, Jefferson, Lee, Madison, Marion, Miami-Dade, Nassau, Osceola, Pasco, Pinellas, Sarasota, Sumter and Wakulla Counties Election day decisions by 21 punch-card counties not to "attempt to determine voter intent on undervotes that couldn't be read by counting machines" [e] [i] [65] -1310 -1858
The above 21 boards plus Palm Beach County Canvassing Board Election day decisions by 22 punch-card counties not to "attempt to determine voter intent on overvotes that couldn't be properly read by machine" [e] [j] [65] -396 -189
Palm Beach County Canvassing Board Decision not to review dimpled ballots with clear indications of intent [k] [65] -2735 -2107
Nassau County Canvassing Board Decision to change county's certified vote from the mechanical recount total back to the election night vote total [c] [68] 73 124
Secretary of State Katherine Harris Decision not to include Palm Beach County's vote recount results (all but 53 precincts) submitted before certification deadline [l] [4] [65] [69] [70] [71] [72] -480 -265
Secretary of State Katherine Harris Decision not to include Miami-Dade County's vote recount results (139 precincts) accomplished before certification deadline [64] [69] [73] -302 -134
Impact of all decisions on candidates' potential statewide totals -7023 -5502
Potential statewide vote count in absence of all decisions [m] 2,919,276 2,918,292
48.85% 48.84%
984 margin

  1. ^ Positive sign indicates number of votes that decision caused to be included (or put back) in state certified total. Negative sign indicates number of votes that decision caused to be excluded from state certified total.
  2. ^ Ballots received after deadline, lacking required postmarks, unsigned, undated, cast after election day, from unregistered voters or voters not requesting ballots, lacking witness signature or address, or double-counted.
  3. ^ ab The NORC study (see below) did not address either of the concerns about overseas absentee ballots and Nassau County's certification change, as their effects were already included in the baseline totals.
  4. ^ ab Dr. Gary King of Harvard University applied statistical modeling to determine that the best estimate for the impact of illegal votes would reduce the certified vote margin for Bush from 537 to 245. [32][62]
  5. ^ abcd According to standards being applied by each county at the time. Two-coder general agreement for punch-card counties.
  6. ^ Taylor County determined voter intent on some overvotes however, it did not include them in its certified results. [65]
  7. ^ Even though four other Optiscan counties (Hamilton, Polk, Seminole, Taylor) manually reviewed machine-rejected ballots for votes to include in their certified totals, [22] there were still an additional 156 undervotes for Bush and Gore that could be reclaimed in these counties under the county custom standard, according to the NORC study (see below). Those 156 votes are included in this line's totals.
  8. ^ ab Includes increase in Orange County's unofficially revised machine-tabulated vote total, due to machine later counting 512 ballots that were previously machine-rejected ("could not be distinguished from ballots that were accepted and counted – they appeared to be properly completed"): Gore 249, Bush 184 (total 433) [64]
  9. ^ Amount excludes 139 Miami-Dade precincts that were recounted.
  10. ^ Unlike the other 20 counties, Palm Beach and Pasco Counties determined voter intent on 74 overvotes for Gore and Bush however, they did not include them in their certified results. [64]
  11. ^ Of these 4842 excluded ballots, 4513 had been set aside by the canvassing board for later inspection by a court (which never happened). All were among 10,310 undervotes in the county. The "set aside" ballots were dimpled ballots that were challenged by the two parties. A January 2001 review by the Palm Beach Post of those "set-aside" ballots determined that 4318 were "unambiguous" valid votes. [4]
  12. ^ When Palm Beach County completed its recount two hours after the certification deadline, its final count was Gore 501 votes, Bush 327 votes excluded from the state certified total.
  13. ^ On December 9, 2000, four counties (Leon, Liberty, Madison, Manatee) completed recounts of undervotes ordered by the Florida Supreme Court, identifying a small number of new votes. Escambia County also reported completing its recount that day but did not include all of its precincts.

Florida Ballot Project recounts Edit

The National Opinion Research Center at the University of Chicago, sponsored by a consortium of major United States news organizations, conducted the Florida Ballot Project, a comprehensive review of 175,010 ballots that were collected from the entire state, not just the disputed counties that were recounted. [74] These ballots contained undervotes (votes with no choice made for president) and overvotes (votes made with more than one choice marked). The organization analyzed 61,190 undervotes and 113,820 overvotes. Of those overvotes, 68,476 chose Gore and a minor candidate 23,591 chose Bush and a minor candidate. [37] Because there was no clear indication of what the voters intended, those numbers were not included in the consortium's final tabulations. [36]

The project's goal was to determine the reliability and accuracy of the systems used in the voting process, including how different systems correlated with voter mistakes. The total number of undervotes and overvotes in Florida amounted to 3% of all votes cast in the state. The review's findings were reported in the media during the week after November 12, 2001, by the organizations that funded the recount: Associated Press, CNN, The Wall Street Journal, The New York Times, The Washington Post, St. Petersburg Times, The Palm Beach Post and Tribune Publishing, which included the Los Angeles Times, South Florida Sun-Sentinel, Orlando Sentinel and Chicago Tribune. [75] [76]

Based on the NORC review, the media group concluded that if the disputes over the validity of all the ballots in question had been consistently resolved and any uniform standard applied, the electoral result would have been reversed and Gore would have won by 60 to 171 votes (with, for each punch ballot, at least two of the three ballot reviewers' codes being in agreement). The standards that were chosen for the NORC study ranged from a "most restrictive" standard (accepts only so-called perfect ballots that machines somehow missed and did not count, or ballots with unambiguous expressions of voter intent) to a "most inclusive" standard (applies a uniform standard of "dimple or better" on punch marks and "all affirmative marks" on optical scan ballots). [4]

An analysis of the NORC data by University of Pennsylvania researcher Steven F. Freeman and journalist Joel Bleifuss concluded that, no matter what standard is used, after a recount of all uncounted votes, Gore would have been the victor. [37] Such a statewide review including all uncounted votes was a tangible possibility, as Leon County Circuit Court Judge Terry Lewis, whom the Florida Supreme Court had assigned to oversee the statewide recount, had scheduled a hearing for December 13 (mooted by the U.S. Supreme Court's final ruling on the 12th) to consider the question of including overvotes. Subsequent statements by Lewis and internal court documents support the likelihood that overvotes would have been included in the recount. [77] Florida State University professor of public policy Lance deHaven-Smith observed that, even considering only undervotes, "under any of the five most reasonable interpretations of the Florida Supreme Court ruling, Gore does, in fact, more than make up the deficit". [4] Fairness and Accuracy in Reporting's analysis of the NORC study and media coverage of it supported these interpretations and criticized the coverage of the study by media outlets such as The New York Times and the other media consortium members for focusing on how events might have played out rather than on the statewide vote count. [76]

Outcomes of potential recount scenarios in Florida presidential election 2000
(NORC, Florida Ballot Project) [75] [78]
Recount criteria Margin in Florida [a] Total new votes for Bush and Gore
Review of all uncounted ballots statewide (never undertaken by Florida)
County custom standard: what each individual county canvassing board considered a vote, in regard to both undervotes and overvotes. Gore by 171 10,480
Most restrictive standard: requires fully punched chads and complete fills on optical scan ballots, no overvotes Gore by 115 5332
Most inclusive standard: any dimpled chads, any affirmative mark on optical scan ballots includes optical scan overvotes. Gore by 107 24,240
Prevailing standard: requires at least one corner of chad detached on punch card undervotes any affirmative mark on optical scan ballots includes overvotes [b] Gore by 60 7811
Review of limited sets of uncounted ballots (initiated but not completed)
Gore request for recounts in four counties: [c] applies the above "prevailing standard" (but with no overvotes) to remaining uncounted ballots in Miami-Dade accepts uncertified hand counts from Palm Beach and 139 precincts in Miami-Dade and certified counts from other 65 counties Bush by 225 1434
Florida Supreme Court order: accepts completed recounts for Broward, Palm Beach, Volusia and Miami-Dade (139 precincts) applies the above "prevailing standard" (but with no overvotes) to remaining Miami-Dade and other 63 counties Bush by 430 5383
Florida Supreme Court order as being implemented: accepts completed recounts in eight counties and certified counts from four counties that refused to recount [d] applies the above "county custom standard" to remaining Miami-Dade and other 55 counties [e] Bush by 493 7582
Unofficial recount totals
Incomplete result when the Supreme Court stayed the recount (December 9, 2000) Bush by 154 [f]
Certified Result (official final count)
Recounts included from Volusia and Broward only Bush by 537

  1. ^ two-coder general agreement for punch card ballots
  2. ^ Officials in a majority of punch-card counties said they would accept a single-corner detached chad as an indicator of voter intent, and officials in a majority of optical scan counties said they would accept all affirmative marks as described in NORC codes as indicators of voter intent. These standards are applied to both undervotes and overvotes.
  3. ^ rejected by the Florida Supreme Court in its ruling of December 8, 2000
  4. ^ the lightly populated counties of Gadsden, Hamilton, Lafayette and Union
  5. ^ Nine counties (Alachua, Columbia, DeSoto, Glades, Lake, Sarasota, Seminole, Sumter and Wakulla) reported that it was their intent to count reclaimable overvotes under the Florida Supreme Court order. Nine other counties said that it was a possibility, while 49 counties said that they would not have counted reclaimable overvotes per the court's order.
  6. ^ When the Florida Supreme Court ordered a statewide recount of remaining uncounted undervotes, it stipulated that the incomplete results from Palm Beach and Miami-Dade Counties that had been rejected by Katherine Harris be counted. This immediately reduced the Bush margin from 537 to 154 (537–215–168 is 154).
  1. ^ Primarily write-in overvotes
  2. ^ ballots recorded by the assigned review coders as either having "multiple marks" or no punches in the presidential section of ballots, or having indications of voter intent (that meet dynamic filter criteria) recorded by just one of three coders
  3. ^ abc Orange County total of 512 properly filled ballots not read by machine on November 8, 2000. Possible reasons include, but are not limited to, ambient humidity, feeder misalignment and scanner light sensitivity. [64]

The NORC was expecting 176,446 uncounted ballots to be available from Florida's counties, based on county precinct reports that produced the final, state-certified vote totals. [4] : 74

Orange County presented fewer rejected ballots to the NORC than expected. When the county segregated all ballots by machine for the NORC review, 512 previously rejected ballots were determined to be completely valid. Orange County then performed a hand segregation and determined that these votes numbered 184 for Bush, 249 for Gore and 79 for other candidates.

The NORC adjusted its analysis for the Orange County results and a few minor differences by increasing the starting baseline vote total by 535 votes. In addition, some counties had provided an extra 432 total ballots, while others produced 1333 fewer ballots than expected. As adjusted, 176,343 ballots were expected, compared to 175,010 ballots actually provided to the NORC for review. The county-level variance from the total number of ballots was 0.76%. Thus, the project included a sample within less than 1% of the expected total of votes. [75]

Only a fourth of the variance consisted of optical ballots. Most of the variation occurred in Votomatic overvotes, the least likely ballots to yield votes in a recount. [75] Among the nearly 85,000 Votomatic overvotes in the sample, there were only 721 reclaimable votes confirmed in the NORC study.

Media recounts Edit

From the beginning of the controversy, politicians, litigants and the press focused exclusively on the undervotes, in particular incompletely punched chads. Undervotes (ballots that did not register any vote when counted by machine) were the subject of much media coverage, most of the lawsuits and the Florida Supreme Court ruling. [37] After the election, recounts conducted by various United States news media organizations continued to focus on undervotes. Based on the review of these ballots, their results indicated that Bush would have won if certain recounting methods had been used (including the one favored by Gore at the time of the Supreme Court decision), but that Gore might have won under other standards and scenarios. [78] The post-controversy recounts revealed that, "if a manual recount had been limited to undervotes, it would have produced an inaccurate picture of the electorate's position." [4]

USA Today, The Miami Herald, and Knight Ridder commissioned accounting firm BDO Seidman to count undervotes. BDO Seidman's results, reported in USA Today, show that under the strictest standard, where only a cleanly punched ballot with a fully removed chad was counted, Gore's margin was three votes. [79] Under the other standards used in the study, Bush's margin of victory increased as looser standards were used. The standards considered by BDO Seidman were:

  • Lenient standard. Any alteration in a chad, ranging from a dimple to a full punch, counts as a vote. By this standard, Bush margin: 1,665 votes.
  • Palm Beach standard. A dimple is counted as a vote if other races on the same ballot show dimples as well. By this standard, Bush margin: 884 votes.
  • Two-corner standard. A chad with two or more corners removed is counted as a vote. This is the most common standard in use. By this standard, Bush margin: 363 votes.
  • Strict standard. Only a fully removed chad counts as a vote. By this standard, Gore margin: 3 votes.

The study notes that because of the possibility of mistakes, it is difficult to conclude that Gore would have won under the strict standard or that a high degree of certainty obtained in the study's results. It also remarks that there were variations between examiners and that election officials often did not provide the same number of undervotes as were counted on Election Day. Furthermore, the study did not consider overvotes, ballots that registered more than one vote when counted by machine.

The study also found that undervotes originating in optical-scan counties differ from those from punchcard counties in a particular characteristic. Undervotes from punch-card counties give new votes to candidates in roughly the same proportion as the county's official vote. Furthermore, the number of undervotes correlates with how well the punch-card machines are maintained, and not with factors such as race or socioeconomic status. Undervotes from optical-scan counties, however, correlate with Democratic votes more than Republican votes, and in particular to counties that scanned ballots at a central location rather than at precinct locations. Optical-scan counties were the only places in the study where Gore gained more votes than Bush, 1,036 to 775.

Some media reports focused on undervotes (chad blocked hole, wrong ink or pencil used, partial oval mark not detected, humidity affected scanner, ballot feeder misalignment), while others also included overvotes (hole punched or oval filled plus a write-in name, other multi-marked ballots). A larger consortium of news organizations, including USA Today, The Miami Herald, Knight Ridder, The Tampa Tribune, and five other newspapers next conducted a full recount of all machine-rejected ballots, including both undervotes and overvotes. The organization analyzed 171,908 ballots (60,647 undervotes and 111,261 overvotes), 3102 less than the later NORC study. According to their results, Bush won under stricter standards and Gore won under looser standards. [80] A Gore win was impossible without a recount of overvotes, which he did not request however, faxes between Judge Terry Lewis and the canvassing boards throughout the state indicated that Lewis, who oversaw the recount effort, intended to have overvotes counted. [77]

According to the study, 3146 (3%) of the 111,261 examined overvotes "contained clear and therefore legally valid votes not counted in any of the manual recounts during the dispute." [4] According to Anthony Salvado, a political scientist at the University of California, Irvine, who acted as a consultant on the media recount, most of the errors were caused by ballot design, ballot wording, and efforts by voters to choose both a president and a vice president. For example, 21,188 of the Florida overvotes, or nearly one-fifth of the total, originated from Duval County, where the presidential ballot was split across two pages and voters were instructed to "vote every page". Half of the overvotes in Duval County had one presidential candidate marked on each page, making their vote illegal under Florida law. Salvado says that this alone cost Gore the election.

Including overvotes in the above totals for undervotes gives different margins of victory:

  • Lenient standard. Gore margin: 332 votes.
  • Palm Beach standard. Gore margin: 242 votes.
  • Two-corner standard. Bush margin: 407 votes.
  • Strict standard. Bush margin: 152 votes.

The overvotes with write-in names were also noted by Florida State University public policy professor and elections observer, Lance deHaven-Smith, in his interview with Research in Review at Florida State University: [81]

. Everybody had thought that the chads were where all the bad ballots were, but it turned out that the ones that were the most decisive were write-in ballots where people would check Gore and write Gore in, and the machine kicked those out. There were 175,000 votes overall that were so-called "spoiled ballots." About two-thirds of the spoiled ballots were over-votes many or most of them would have been write-in over-votes, where people had punched and written in a candidate's name. And nobody looked at this, not even the Florida Supreme Court in the last decision it made requiring a statewide recount. Nobody had thought about it except Judge Terry Lewis, who was overseeing the statewide recount when it was halted by the U.S. Supreme Court. The write-in over-votes have really not gotten much attention. Those votes are not ambiguous. When you see Gore picked and then Gore written in, there's not a question in your mind who this person was voting for. When you go through those, they're unambiguous: Bush got some of those votes, but they were overwhelmingly for Gore. For example, in an analysis of the 2.7 million votes that had been cast in Florida's eight largest counties, The Washington Post found that Gore's name was punched on 46,000 of the over-vote ballots it, [sic] while Bush's name was marked on only 17,000. –Lance deHaven-Smith [81]

Furthermore, the Florida Administrative Code: 1S-2.0031, "Write-in Procedures Governing Electronic Voting Systems", (7) at the time specified, "An overvote shall occur when an elector casts a vote on the ballot card and also casts a write-in vote for a qualified write-in candidate for that same office. Upon such an overvote, the entire vote for that office shall be void and shall not be counted. However, an overvote shall not occur when the elector casts a vote on the ballot card but then enters a sham or unqualified name in the write-in space for that same office. In such case, only the write-in vote is void." There were two write-in candidates for president who had been qualified by the state of Florida. Under the FAC, a ballot with any other name written in (including Bush and Gore, who were not qualified as write-in candidates) was not an overvote, but rather a valid vote for the candidate whose name was marked by the voter.

County-by-county standards for write-in overvotes in 2000 Edit

  1. ^ abc in answer to "Would the county accept a write-in overvote if the write-in text area contained a non-qualified candidate?"

Opinion polling on recount Edit

A nationwide December 14–21, 2000 Harris poll asked, "If everyone who tried to vote in Florida had their votes counted for the candidate who they thought they were voting for — with no misleading ballots and infallible voting machines — who do you think would have won the election, George W. Bush or Al Gore?". The results were 49% for Gore and 40% for Bush, with 11% uncertain or not wishing to respond. [82]


How the 2000 Election Results Came Down to a Supreme Court Decision - HISTORY

Sunday, December 12 marks ten years since the US Supreme Court effectively decided the outcome of the 2000 presidential election, halting the counting of votes in Florida and awarding the White House to George W. Bush. The 5-4 ruling in Bush v. Gore, together with the contemptible capitulation of the Democratic Party, constituted a milestone in the decay of American democracy.

In a social and political context in which the debacles produced by the Bush administration loom so large in everyday life, it might be thought that the American media and political opinion makers would devote considerable attention to the tenth anniversary of the event that placed Bush in the White House.

In fact, however, the silence is deafening. Neither the New York Times nor the Washington Post, the two leading national newspapers, published retrospectives to mark the occasion. Their example was emulated in the regional and local press and on the television networks. Supreme Court Justice Stephen Breyer, one of the four dissenters in Bush v. Gore, gave a rare live interview to Fox News Sunday, but the subject never came up.

Only one bourgeois pundit, right-wing columnist George Will, took up the issue, and he dismissed the Supreme Court action as one of little or no lasting significance, asserting that the passions over the decision “dissipated quickly” and that “remarkably little damage was done” by the post-election crisis.

Significantly, however, Will’s cursory rehash of the dispute included flatly antidemocratic assertions—that the votes of those who “cast ballots incompetently” should simply have been discarded and that the fundamental right at stake in the court fight was the “rights of state legislatures” (in Florida’s case, Republican-controlled), which have “plenary power” to determine voting procedures.

Will, of course, agrees with the five-member majority in Bush v. Gore that the central issue was not to determine, in as objective a fashion as possible, how the people of Florida actually voted—in other words, to count every vote—but to bring the controversy to a speedy end with the result favored by the political right. This entailed ignoring the result of the popular vote, won by Democrat Al Gore.

The silence of the nominally “liberal” press is a guilty one. They do not wish to revisit the history, not so long ago, in which the Democratic Party and the liberal media surrendered to a right-wing judicial coup d’état, whose effect was to install the most right-wing government in American history.

The election of November 7, 2000

The events of Election Day 2000, encompassing the night of Tuesday, November 7 and the early morning hours of Wednesday, November 8, are among the most extraordinary in American political history. Yet they came after a presidential campaign of the most humdrum character, in which no political issues were seriously discussed. The consensus among political pundits and pollsters was that Bush, then governor of Texas, held a narrow but significant lead over his Democratic opponent, Vice President Al Gore.

As in 1998, however, when predictions of major Republican gains in the midst of the impeachment crisis failed to materialize, it appeared as the votes began to be counted that the political establishment had underestimated the popular hostility towards the right-wing program of the Republican Party, founded on tax cuts for the wealthy and the slashing of domestic social spending.

Gore won many of the big industrial states with relative ease, including Michigan and Pennsylvania. The Democrats were sweeping the northeastern states and were expected to win the Pacific Coast, while Bush carried the south and southwest, the Rocky Mountain states and Ohio. It appeared that the election would be decided by Florida’s 25 votes in the Electoral College.

Just before 8 p.m., several US television networks called the outcome in Florida for Gore, based on their exit polls of voters compiled throughout the day. The Bush campaign reacted immediately, breaking with precedent and putting the candidate before television cameras to denounce the network projections and declare his certainty that Florida—where his brother Jeb was governor and the Republicans controlled the machinery of state government—would end up in his column.

The networks backed down, rescinding their call for Gore and declaring the outcome in Florida still undecided. Then, in the early hours of Wednesday, Fox News became the first network to call Florida for Bush, thereby declaring him the victor in the election.

Heading the decision desk, where the network reviewed vote totals and polls to arrive at projections, was John W. Ellis, a first cousin of George W. Bush. Ellis unilaterally called the election for Bush before any determination by the Voter News Service, the consortium of leading newspapers and television networks, after a 2 a.m. telephone discussion with Bush and his brother Jeb.

When the other networks followed suit, pronouncing Bush the winner, Democrat Al Gore telephoned his concession to Bush. But on the way to make his televised concession speech before an audience of supporters in Nashville, Gore received a phone call from campaign aides who advised him that the numbers in Florida showed the race too close to call. Gore telephoned Bush again and retracted his concession.

These events had critical importance for what was to follow. The media coverage, as well as Gore’s premature concession, gave the impression to the public that Bush had “won” Florida—and the national election—by a narrow margin. Throughout the ensuing crisis, the corporate-controlled media largely parroted the official Republican posture that Bush was the presumptive winner. The fact that Gore had won by a sizeable margin in the national popular vote, as much as a half million votes, was dismissed as of no significance.

The struggle in Florida

Gore retracted his concession phone call to Bush because of reports flowing in to his campaign about numerous and widespread irregularities in the Florida voting, including measures to suppress the Democratic vote by arbitrarily barring black voters. It emerged that in a single county, Palm Beach, some 19,000 votes cast for president were invalidated because the voters, confused by the layout of the ballot paper, had chosen more than one candidate. Thousands more in Palm Beach, in heavily Jewish precincts, had inadvertently cast ballots for the ultra-right independent candidate Patrick Buchanan.

In Miami-Dade, there were numerous reports of ballots being distributed in Haitian immigrant precincts that were pre-punched for Bush. In Duval County, which includes the city of Jacksonville, nearly half the “spoiled” ballots came in four of the county’s 14 districts—those which were largely black and had gone heavily for Gore. In some black precincts the rate of supposed spoilage rose to 31 percent.

The first recount of voting machines, required by Florida law, cut Bush’s supposed margin from 1,725 to 327 votes, but there were tens of thousands of ballots still uncounted, concentrated in four major metropolitan counties—Miami-Dade, Broward, Volusia and Palm Beach—where there was a substantial Democratic majority. Local officials began hand recounts in each of these areas.

The Republican-controlled state government stepped in to block this vote counting. Florida Secretary of State Katherine Harris, co-chairman of the Bush campaign in Florida and a Bush elector, first ordered the counting stopped. When reversed in court, she said she would not extend the November 14 deadline for reporting final totals, even though her own actions, in initially halting the count, made it impossible for three of the four counties to finish their recounts in time.

This arrogant opposition to demands that all votes be counted typified the stand of the Bush camp from the beginning. It was combined with misinformation and lies. The chief of the Bush recount team, former secretary of state James Baker, declared that machine counts were more reliable than hand counts, although hand counts are accepted as the highest standard in most states, and Bush had signed a Texas state law to that effect.

Bush spokesmen continually declared that the votes in Florida had been counted multiple times, each time showing the Republican the winner, although there were tens of thousands of ballots that were never counted at any time. The purpose of such lies was to cover up the basic fact that a Bush election victory required the suppression of votes cast in Florida.

The response of the Democratic Party and the Gore campaign to this procedural coup d’état was belated and halfhearted. The Gore campaign went to court against Harris’s decision, but sought a recount only in the four large metropolitan counties rather than statewide. In contrast to the ferocious partisanship and aggressiveness of the Bush campaign, Gore put his Florida recount effort under the direction of former secretary of state Warren Christopher, a corporate lawyer who was hostile to a court fight and rejected making any appeal to the democratic sentiments of the American population.

The issue of the right to vote

On Friday, November 17 the issue came to a head when a local judge in Tallahassee, Florida ordered a halt to all vote recounts, only to be overturned hours later by the Florida state Supreme Court, which barred Harris from declaring Bush the winner of the state’s electoral votes and reinstated the vote counting in Miami-Dade, Broward and Palm Beach counties, although for a limited period.

Four days later, the court issued a decision compelling state officials to accept and certify the hand recounts, based on the right of Florida citizens to vote and to have their votes counted. Citing the Florida state constitution, the seven justices wrote, “The right of suffrage is the preeminent right contained in the Declaration of Rights, for without this basic freedom all others would be diminished.”

The purpose of election laws was not to arbitrarily exclude voters who failed some technical requirement, but to “facilitate and safeguard the right of each voter to express his or her will in the context of our representative democracy.”

The Bush campaign responded with a vitriolic denunciation of the court, a legal appeal to the US Supreme Court, and frenzied efforts to counter the state court’s decision by any means necessary, including violence.

There were calls for the Republican-controlled state legislature to intervene with legislation that would award Florida’s 25 electoral votes to Bush, regardless of the will of the voters. Florida state legislators began preparations for such action, using as a pretext the December 12 deadline for states to submit the list of electors to Washington. In the US capital, leaders of the Republican-controlled Congress suggested they would refuse to accept Democratic electors from Florida when the electoral votes were officially tabulated in January.

The Bush campaign also made an open appeal to the military to intervene. They claimed that the Gore campaign and the Florida Democratic Party were seeking to exclude absentee ballots cast by military personnel overseas. Bush spokesman Marc Racicot declared, “I am very sorry to say but the vice president’s lawyers have gone to war, in my judgment, against the men and women who serve in our armed forces.”

The day after the court ruling, a mob of Bush supporters besieged the Miami-Dade County board of canvassers, grabbing a Democratic lawyer and threatening to assault those involved in manually recounting the ballots. A few hours later the Democratic-controlled board announced it was abandoning its recount, effectively disenfranchising hundreds of Gore supporters whose votes were not registered in the original machine tally.

The result of the recounts in Palm Beach and Broward cut Bush’s statewide lead to only 537 votes. It was more than likely that if Miami-Dade, the state’s largest county, and heavily Democratic, had conducted a similar recount, the tiny Bush lead would have been erased. As it was, the capitulation of the Democrats in Miami-Dade enabled Katherine Harris to certify Bush as the winner of the state’s electoral votes on November 26.

The Supreme Court steps in

A federal appeals court, with a top-heavy majority of Republican appointees, refused to take jurisdiction over the Florida recount, as demanded by the Bush campaign, citing the right of the Florida state Supreme Court to interpret and make final rulings on state law. The Bush campaign appealed to the US Supreme Court, which scheduled a hearing on Friday, December 1.

The three most right-wing justices, Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas, took the lead in the hearing, suggesting that the Florida state Supreme Court, by elevating the right to vote as the highest principle, was violating Article II of the US Constitution, which delegates to state legislatures the decision on how to choose electors. There was no constitutional right to vote for president, Scalia said.

Neither the four members of the moderate-to-liberal faction, nor Gore’s lawyer Laurence Tribe made any direct attack on this authoritarian argument. The best Tribe could manage was to sputter, “The disenfranchising of the people, which is what this is all about—disenfranchising people isn’t very nice.”

On Monday, December 4 the US Supreme Court issued a unanimous ruling remanding the case back to the Florida Supreme Court, with instructions that the Florida justices clarify the grounds on which they had overruled the Republican state authorities. The opinion of the unanimous ruling included the Article II argument made by Rehnquist, Scalia and Thomas.

The Florida Supreme Court revisited the arguments made by the Bush and Gore campaigns, as well as lower court rulings against the recounts in various counties. On Friday, December 8 it ordered a recount of all “undervotes” (ballots where punch card readers failed to detect the vote) in all Florida counties, so that in all cases where the voter’s intention could be determined by evidence, the vote would be counted.

The majority affirmed basic principles of popular sovereignty: “This essential principle, that the outcome of elections be determined by the will of the voters, forms the foundation of the election code enacted by the Florida Legislature and has been consistently applied by this Court in solving election disputes,” the majority wrote. “We are dealing with the essence of the structure of our democratic society.”

The Bush campaign immediately appealed this decision to the US Supreme Court, and a day later, as election officials throughout Florida were beginning the recount, the Supreme Court issued an emergency order to stop. The 5-4 ruling found that “irreparable harm” would be done to the petitioner, George W. Bush—i.e., he would be deprived of the presidency by a valid count of the votes.

While the four-member liberal minority argued that the federal courts had traditionally deferred to state courts in the interpretation of state constitutions and state election laws, the five-member majority discarded their usual posture of support for “states’ rights” when it came into conflict with the interests of the Republican Party and its ultra-right backers.

Three days later, the same 5-4 majority handed down its final ruling, declaring, in a perfect Catch-22, that the delay in the recount—caused by its own order—had made it impossible to complete a recount in time to meet the December 12 deadline for certifying electors. Accordingly, the decision of the Republican-controlled state government, awarding the electors to Bush, was upheld.

Because the three ultra-right members could not obtain agreement from two other conservatives, Sandra Day O’Connor and Anthony Kennedy, to base the decision on Scalia’s Article II claim that the American people have no constitutional right to vote for president, the court majority found an entirely new legal argument to support its predetermined outcome: putting Bush in the White House.

They ruled that the Florida Supreme Court’s decision that election officials in the 64 counties should set the standards for determining voter intent was a violation of the Fourteenth Amendment’s requirement of “equal protection of the law.” With unparalleled cynicism, Rehnquist, Scalia and Thomas, invariably hostile to “equal protection” arguments when made by plaintiffs who were black, Hispanic, female, poor or otherwise politically disadvantaged, embraced the argument on behalf of the millionaire son of a former president.

Justice John Paul Stevens, in his dissent for the minority, wrote: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

The capitulation of the Democrats

The submission of the Gore campaign to the transparently biased and antidemocratic Supreme Court majority was evident at the hearing held on December 11, the day before the final ruling was issued. Gore’s lead attorney, David Boies, made no mention of the frontal assault on democratic rights embodied in the position of Scalia and sought to appeal to the two “swing” justices, O’Connor and Kennedy, with legalistic quibbling.

Public spokesmen for the Gore campaign and the Democratic Party repeatedly declared their full confidence in the impartiality and fairness of the high court and their determination to abide by whatever result was handed down. When the ruling was issued, Gore went on national television to publicly declare his capitulation and embrace the presidency of George W. Bush as legitimate.

This capitulation was foreshadowed by the entire conduct of the Gore campaign, even before the Florida crisis. Gore selected as his running mate Senator Joseph Lieberman, perhaps the most right-wing Senate Democrat, largely because of his early public denunciation of President Bill Clinton during the Monica Lewinsky sex scandal.

Throughout the Florida crisis, Lieberman acted as a virtual Republican asset, opposing any serious campaign against the efforts to suppress vote counting and hijack the election, and making public statements that frequently echoed the arguments from the Bush camp.

Gore himself, however, set the tone, initially restricting the recount to four counties, opposing efforts to mount a public political campaign that would mobilize working-class supporters in favor of an exclusive focus on the courts. At one point, when the question arose of absentee ballots cast improperly by overseas military personnel, Gore insisted on dropping the issue, declaring that he could not become president over the opposition of the military.

The record of the WSWS

The World Socialist Web Site recognized immediately the fundamental issues of democratic rights at stake in the 2000 election crisis. As socialists, opposed on principle to both big business parties, we did not give political support to Gore or the Democratic Party. But we intransigently opposed the effort of the Bush campaign and the ultra-right to steal the election, and we warned that the success of this effort would have devastating implications for the American people.

In the very first statement published by the WSWS after Election Day 2000, we wrote: “The crisis of the 2000 elections reflects the growth of social contradictions to such a point of intensity that they can no longer be adjudicated within the existing political and constitutional framework… Most fundamental is the enormous growth of social inequality, which has reached proportions not seen in the US since the 1920s. The division of America between a fabulously rich upper crust and the vast majority of the population is, in the end, incompatible with democratic forms of rule.”

Only a few days before the Supreme Court ruling, in an address to a public meeting in Sydney, Australia, WSWS International Editorial Board Chairman David North said: “What the decision of this court will reveal is how far the American ruling class is prepared to go in breaking with traditional bourgeois-democratic and constitutional norms. Is it prepared to sanction ballot fraud and the suppression of votes? Is it prepared to install in the White House a candidate who has attained that office through blatantly illegal and antidemocratic methods?”

North said that unlike the unserious middle-class “left” organizations, which declared the Florida crisis a tempest in a teapot and dismissed its significance, the Marxist movement based its analysis on an understanding of how the political crisis arose from and gave expression to the intensifying class conflicts in America.

He explained that the United States was now the most unequal of the advanced capitalist countries, and that social tensions had reached an extreme pitch, notwithstanding the lack of open class conflict on the surface of society: “Indeed, within the context of the extremes of social inequality, the absence of a politically conscious class struggle testifies, above all, to the intensity of the social oppression of the American working class.”

North concluded that the crisis over the 2000 election was not merely an American crisis, but a world crisis, because it represented the political destabilization of American imperialism, the bulwark of world capitalism throughout the 20 th century.

“The basic article of faith, for all those who have doubted or denied the viability of Marxism, is that, ultimately, no matter what problem capitalism faces in any part of the world, Uncle Sam will always bail it out,” North said. “The events now taking place in America signify the end of that long period where the affairs of world capitalism could rest securely under the leadership of US imperialism. The United States will no longer be able to play that role. However protracted it proves to be, the 2000 presidential election marks a new stage in the crisis of American and, therefore, world capitalism.”

Throughout this crisis, the WSWS warned that a government installed by methods of lying and provocation, against the will of the people, would necessarily conduct itself in the same way in both foreign and domestic policy. These warnings have been vindicated again and again in the decade that has ensued: two illegal wars of aggression, in Afghanistan and Iraq the buildup of the police powers of the federal government, on the pretext of the struggle against terrorism but in actuality directed against the democratic rights of the American people and in the ever-widening social gulf in America between the financial elite and the working people, culminating in the Wall Street crash of 2008 and the ongoing slide into the worst economic crisis since the Great Depression.

FURTHER READING

For the address given by David North, editorial chairman of the WSWS, at a meeting in Sydney, Australia on the eve of the Supreme Court decision, see:

To review the day-by-day analysis of the 2000 election crisis on the World Socialist Web Site, the author recommends the following articles and editorial board statements:


Watch the video: . Presidential Election Results 1789-2020 (May 2022).