Bush v Gore, the decision of the century

2000 presidential elections

The 2000 American presidential election is arguably the most influential election in world history. George W. Bush winning with a margin of 0.009% votes led to a broadening of The United State's executive powers, shown through Vice President Dick Cheney's Nixon-Esque approach on international politics. The Bush administration had challenged several legislations such as the Foreign Intelligence Surveillance Act, the Freedom of Information Act, the Presidential Records Act, legislations that are intended to keep a check on the executive branch. The article below talks about one of the most important Supreme Court cases, a case that had superfluous international implications because of the stake hand.


Republicans

George W. Bush: Governor of Texas and Republican Candidate for President.

Richard (Dick) Cheney: Former Secretary of Defence and running mate for Vice-President.


Democrats

Albert (Al) Gore: Incumbent Vice-President to Bill Clinton and Democratic Candidate for President

Joel Lieberman: Senator of Connecticut and running mate for Vice-President



The turn of the century election was considered to closest in U.S. History


Background to American presidential elections

The presidential race starts when presidential hopefuls conduct nation-wide campaigns, hoping to win their respective party’s nomination. Voters will then vote in a ‘Primary Election’ which determines their preferred candidate in their party to be the presidential nominee. After the primary elections, political parties will hold a national convention to affirm the party’s choice for the presidential nominee for the ‘General Election’. Contrary to popular belief, American voters do not directly vote for candidates for those offices, but instead for electors, who are members of the Electoral College. The members of the Electoral College, which are its members of the House of Representatives plus its two Senate seats will then cast votes for president and vice-president. The Electoral college is a controversial political body that is relevant to the events of 2000.



In most states, the candidate that gets the most popular vote wins. But not in America.

Using the 2016 election as an example, even though Hilary Clinton has received 65,853,514 of the popular vote, which is 3 million more than Donald Trump’s 62,984,828, the way the Electoral College functions as an indirect representative democracy means that the voting power between citizens is different. For example, North Dakota has a population of 762,062 and 3 electoral college votes, while California has a population of 39.51 million and 55 electoral college votes. This discrepancy means that North Dakota has on average 254,020 voters per electoral vote. In contrast, California has 718,363 per electoral vote, essentially making a vote in California only 35% as valuable as a vote in North Dakota. Even though Trump lost the popular vote, he won more votes from the Electoral College because votes for Trump thrive amongst states that have a higher number of electoral electors. Referring to the statistics above, California has 51 times as many people, but only 18 times as many Electoral College votes. The U.S. uses the first-past-the-post voting system, which is a ‘winner gets all’ approach, and the winner of the popular vote will take all of the Electoral College votes for that particular state. A party that reaches 270 electoral votes will win the office. At the end of election night, November 7, 2000, Al Gore had 266 and Bush had 246. The only state left was Florida with 25 electoral college votes and these votes will dictate who takes over the oval office.




The Case of Bush v Gore

Towards the end of the night, network officials are working late. They have prematurely calculated that Bush secured 85% of the votes from Florida alone. However, the remaining 15% of the ballots resided with the major Democratic counties. What surprised the public next is when the votes were all counted, because Bush’s margin of 100,000 votes shrunk to 1,784. Since the margin is less than 0.05%, Florida Law required an automatic machine recount.[1] A recount further shrunk Bush’s margin of votes to 327 votes. In this situation, a candidate may request a manual hand recount under Florida State law.[2] Gore asked for a manual hand recount on four traditionally Democrat-leaning counties, Palm Beach, Broward, Miami-Dade and Volusia.



As the counties are complying with the recount request, they are concerned they cannot meet the state deadline for certifying elections within a week. The Florida court upheld the deadline but allowed the counties to amend returns and found that the secretary of state could use the amended returns. A lot of the controversy revolving this case came over the validity of votes in the hand recounts. County officials were taking a lot of time trying to ascertain voter’s intent on problematic selections such as the ballot paper used in Palm Beach. The form included an arguably unnecessary butterfly flap-like design, which confused voters. Several Al Gore voters expounded their confusion over easily and mistakenly voting for the Reform Party politician at the time, Pat Buchanan. Pat Buchanan stated on NBC’s The Today Show that by looking on the design of the ballot paper, it is “very likely that Al Gore’s supporters could have mistakenly voted for me”.



The infamous butterfly ballot design. It is quite possible that voters mistaken Buchanan's hole 4 for Al Gore's.

Lawyered up and meddled with Conflicts of Interests

By the time the machine recount is complete, Bush’s margin had dropped to 327 votes. It is essential to note that Katherin Harris, who is the Florida Secretary of State is also conveniently the co-chair of Bush’s Florida campaign. She had tried to certify and affirm the results before the recount, which was shot down by the Florida Supreme Court. The Supreme Court ruled that the recounts should proceed and added into the state’s final count. On Al Gore’s side was attorney general Bob Butterworth, but he did what no politician will do, to not abuse his Attorney General powers to influence the court trajectories. Not satisfied with the Florida Supreme Court’s decision, Harris was determined to get her buddy Bush into the Oval Office, and it is off to the U.S. Supreme Court we go.



Public Law fiasco ensued

The Supreme Court arrived at a 5-4 decision that halted the manual recounts in Florida. The reprieve allowed arguments from both parties to air their grievances. Bush presented an assertion that the Florida Supreme Court was acting ultra vires and had no authority to allow recounts of problematic votes. Gore, on the other hand, argued that the decision has been made on a state level and should not engage with federal jurisdiction.



The Supreme Court incidentally conceded with Bush because they believed that the manual recounts had violated the 14th Amendment’s equal protection clause. The amendment establishes legal rights to all citizens in the United States. The Court affirmed that without proper objectivity and standards asserted to assess voter intent, it would be a considerable violation the right provided to other non-problematic votes. Justice Antonin Scalia suggested that there should be state-wide tabulation standards to ensure state-wide assurances of equal protection between votes.

Furthermore, they argued that the recount should not proceed because, under Title 3 of the United States Code, Section 5, any issues arising out of an election should reach its determination decision six days prior before the time fixed for the meeting of the electors. The determination is conclusive, and it governs the recounting of the electoral votes. The Court here purported that such a legal recount is possible, but circumstances do not allow for a recount before the ‘safe harbour’ of 6 days expires. The ‘safe harbour’ argument is extraordinarily contentious and continues to be challenged by many scholars. For example, in a previous election in Hawaii, electors were counting election results from 1960 and only validated the results in early January.

The dissenting Judges were focusing on Justice Scalia’s statement that “counting the votes of questionable legality will threaten irreparable harm to Bush”. Dissenting Justice Stevens had stated that by preventing the recount, people would lose faith in the legitimacy of the election.


Final words

Justice Stevens’ dissenting statement best described how the majority of the population in the U.S. felt on December 11, 2000.

“Although we may never know with complete certainty the identity of this year’s Presidential election, the identity of the loser is clear. It is the Nation’s confidence in the judge as an impartial guardian in the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision.”

I provide an antithetical to the final sentence with the results of the 2016 United States Presidential Elections.


Credit to Mark Wilson @ Geddy Images


This judgement has been widely criticised by legal scholars to be clear evidence of partisanship in the American Judicial System. As Harvard Professor Alan Dershowitz puts it, Bush v Gore is "most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants".


[1] Section 102.141(7) & (7)(a) Florida Statutes, Chapter 102 Conducting Elections and Ascertaining the results.

[2] Section 102.166(2000)


Sources

Cases

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

  • Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000)

  • Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (2000)


Legislation

  • Florida Statutes, Chapter 102 Conducting Elections and Ascertaining the results.

  • The Constitution of the United States

  • 3 U.S. Code Section 5 - Determination of controversy as to appointment of electors


Journal Articles

  • Ackerman, Bruce A (2002) Bush v. Gore: the question of legitimacy, New Haven: Yale University Press.

  • Dionne, E. J., Jr.; Kristol, William (2001) Bush v. Gore: the court cases and the commentary, Washington, D.C.: Brookings Institution Press.

  • Bloom, Lackland H (2014) Do great cases make bad law? (Chapter 21: Bush v Gore), Oxford University Press.

  • Balkin, Jack M. (2001)Bush v. Gore and the Boundary Between Law and Politics, Yale Law Journal 110(8), 1407–1458.


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