Thursday, November 05, 2020

 This is an analysis I did on the 2000 election almost 18 years ago:

Summary of the Bush v. Gore U.S. Supreme Court Decision, December 12, 2000

Based on the book Betrayal of America by Vincent Bugliosi and The US Supreme Court published decision in Bush v. Gore, December 12, 2000

By Jim Maxedon

Note: I will state up front that I accept that George Bush is President of the United States and is due all the respect and deference due the President. I do not advocate that this fact be changed except through the established means of a fair and proper 2004 Presidential election. I further state that I voted for Al Gore in the 2000 election. While I am a life-long Democrat, and I consider myself moderate, I do not consider the term "liberal" to be any more pejorative than the term "conservative", and I will assume that anyone who does is most likely an extreme right winger or "survivalist".

I have read the US Supreme Court's December 12th 2000 decision on Bush v. Gore as well as all concurring and dissenting opinions. You can, too at:

My goal in this essay is simply to enlighten interested people about the way in which the result of the 2000 Presidential election was determined by the US Supreme Court.

Text in red is attributed to Bugliosi's Betrayal of America. Text in green is attributed to the US Supreme Court. Where the words "Court" or "Supreme Court" are capitalized they refer to the US Supreme Court. The same words in lower case refer to the Florida supreme court.


Summary Points:

Situation: By the day after Election Day enough votes had been counted in all 50 states to determine that the winner of the majority of electoral votes (the eventual President) would depend on which candidate had the most votes in Florida. After the initial machine count and automatic recount in Florida, Bush led Gore by just 327 votes.

Briefly, Al Gore believed that since the Florida machine counts were so close, there was a very good chance that there were enough uncounted legal votes to change the outcome of the election. He asked the Florida supreme court to order a manual recount of those votes. The Florida supreme court agreed and ordered a recount of the undervotes in all counties in Florida on December 8th. The recount was proceeding in a timely manner until the US Supreme Court halted the vote on December 9th saying, in essence, that Bush's "presidency" may be harmed if it turned out that he didn't get the most votes. After waiting most of 3 and a half days to issue a ruling, at 10:00PM on December 12th, the Supreme Court ruled that the winner had to be determined by midnight of that same day, that the recount might treat different voters' ballots differently, and that there was no way to remedy this violation of the equal protection clause and complete the recount in two hours. The Court, therefore reversed the Florida court's order for a recount, effectively declaring the election over and George W. Bush the winner.

Boiled down to its essence, the Supreme Court ruled that because of the various standards of determining the voters' intent in the Florida counties, voters were treated unequally, since a vote disqualified in one county (the so-called undervotes, which the voting machines did not pick up) may have been counted in another county, and vice versa. This, they ruled, would violate the Fourteenth Amendment's equal protection clause. Since no standard could reasonably be put in place and the recount could not be completed in the two hours between the Court's ruling and their perceived deadline, they ruled that the count could not resume and effectively ended the election. But the Court had previously stopped the recount on December 9th then ruled on the 12th that there was no time to complete the recount.

Recount ordered by the Florida supreme court. On December 8th, 2000, the Florida supreme court ordered a recount of all undervote ballots throughout the entire state. This means counties that favored Bush as well as counties that favored Gore would have recounts. Thus, the ordered recount would not, on its face, favor Gore nor "harm" Bush.

Recount stayed by the US Supreme Court. On December 9th, the Supreme Court issued a stay of the Florida court's ruling in which Justice Scalia declared that a continuation of the recount of all undervotes in all Florida counties would threaten irreparable harm to Bush by casting a cloud upon what he claims to be the legitimacy of his election. In other words, although the election had not yet been decided, Justice Scalia was presupposing that Bush had won the election, had a right to win it, and any recount that showed Gore got more votes in Florida than Bush could "cloud" Bush's presidency.

Bush sued Gore on three points. The equal protection issue is the only issue upon which the Court based their final decision in ruling in favor of Bush. In order to "equally protect" all undervoters, the Court decided that none of their votes could be counted.

The December 12, 2000 Supreme Court decision was a per curiam decision. Per curiam means "by the court" and is almost always a 9-0 ruling on a relatively unimportant and uncontroversial case. Furthermore, a per curiam ruling is issued with no justice's name attached to it. This ruling was not unanimous. The Court ruled 5-4, along party lines, in favor of Bush. Some have argued that the ruling was 7-2 and therefore included two "liberal" justices, but the fact is that while two of the justices in the minority (Souter and Breyer) agreed that there was merit to the question of "equal protection" in the case, they disagreed that there was no way to fairly remedy the situation in Florida in a timely manner so that the counting of valid ballots should be halted. In fact, they agreed with the Court's minority that the US Supreme Court should not have taken this case in the first place. Justice Souter in his dissent stated, "Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18".

Legal standing to sue and "harm" to Bush. In most every equal protection case, the case is brought by the party being harmed. In the case of the Florida election, the party harmed according to the equal protection clause would be the voter who was treated differently from other voters. No such voter brought suit. Instead George W. Bush sued under the equal protection clause. He claimed the recount would harm him. But Bush could only be "harmed" if the recount favored Gore or if he somehow had a legitimate claim to the presidency and a recount would change that. Since the recount was for all counties, there was just as much chance for the vote to go Bush's way as for Gore's. What legitimate claim to the presidency did Bush have? An incomplete tally of only the machine-counted votes? "But the votes were counted twice; they didn't have to be counted again," was heard. However, the absentee votes were still being counted. "All legal votes had been counted." Just because a machine did not count a vote doesn't mean the vote was not a legal, valid vote. As a further and defining note, the Court has ruled in numerous prior cases that the equal protection clause of the Fourteenth Amendment only applies where the discrimination is intentional. No intentional discrimination was ever suggested in the case in Florida.

Treating votes differently. Some Florida counties use punch card readers to tally ballots. Others use optical scanners. Optical scanners have a significantly lower rate of undercounting votes. Therefore based on the balloting and counting method used in each county, ALL voters in one county WILL have a higher or lower probability of having their votes not counted and therefore all are denied "equal protection" based on the reasoning of the Supreme Court in Bush v. Gore. The fifty different states have many ways of balloting and determining how a voter voted. Most states (including Texas) allow for manual counts with varying standards for counting undervotes. The Supreme Court presented no relevant precedent for their interpretation of the equal protection clause in this ruling and further stated that this interpretation applied ONLY to Bush v. Gore and was not to be used as precedent in any future case. According to the decision, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Bush sued Gore citing three points:

  1. The Florida supreme court's decision to allow the counties to continue counting votes after Secretary of State Kathleen Harris had "certified" the Florida election count on November 26th, was, in effect, creating "a new law" after the election was held thus violating the US Code (3 USC § 5). The Court did not uphold this claim.
  2. The Florida supreme court's decision to allow the counties to continue counting votes after Secretary of State Kathleen Harris had "certified" the Florida election count on November 26th would violate Article 2 of the Constitution which says that the states' legislatures would determine the manner in which electors were chosen. In effect, Bush was arguing that the Constitution's delegating the authority to create laws to the legislature eliminated the state court's power to interpret those laws. The Court did not uphold this claim.
  3. Because of various standards of determining the voter's intent in the Florida counties, voters were treated unequally, since a vote disqualified in one county (the so-called undervotes, which the voting machines did not pick up) may have been counted in another county, and vice versa. This would violate the Fourteenth Amendment's equal protection clause.

The equal protection issue is the only issue which the Court upheld in reversing the order of the Florida supreme court, ruling in favor of Bush. The Court gave no merit to points 1 and 2. When Bush originally asked the US Supreme Court to overturn the Florida court's order for a recount (Bush v. Palm Beach Canvassing Board), he cited these exact three issues. Astonishingly, the Court agreed to hear the case based on points 1 and 2 and completely ignored point 3, the equal protection issue upon which they based their final decision that ended the election.

The Court's "deadline" of midnight on December 12th to have the Florida vote count finalized was not a true deadline but an excuse to end the recount. If a state certifies its electors by December 12th, Congress can't question them. If a state does not make that deadline, nothing happens. The counting could continue. In 1960, Hawaii appointed two slates of electors and Congress chose one on January 4th. The appropriate US Code merely provides rules for Congress to follow when there is a conflict. Nothing in the rules prohibit a state from counting legal votes until a bonafide winner is determined. And just because votes were not counted by a punch card reader or optical scanner does not mean they were not legal votes. A legal vote based on Florida state laws and legal precedent is a vote which clearly shows the intent of the voter.

In other words, there was plenty of time to allow the Florida Supreme Court to set standards and complete a recount. The recount called for by the Florida court on December 8th was on a pace to be completed on the 10th or 11th of December, at the latest. But then the Supreme Court stepped in and stopped the counting. Even if the recount had to be started over with specific standards, there were six days remaining before the Electoral Collage was to meet. Even that date, December 18th, was not a final deadline for determining electors based on the 1960 precedent.

The Supreme Court should not have heard, much less ruled, on Bush v. Gore. The Supreme Court's minority in their dissents and numerous "liberal" and "conservative" legal scholars agree that the Court should never have agreed to consider Bush v. Gore and should not have granted Bush's request to stay the manual recount.

Justice Stevens said it best in his dissent, writing, "The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors . . . When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion [emphasis added]." Justices Ginsburg and Breyer agreed.

Justice Souter in his dissent stated, "The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd. . . or this case, and should not have stopped Florida's attempt to recount all undervote ballots . . . by issuing a stay of the Florida Supreme Court's orders during the period of this review." Justice Breyer said, "And whether, under Florida law, Florida could or could not take further action is obviously a matter for Florida courts, not this Court, to decide."

Justice Stevens concludes. "Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. 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."

More reading on Bush v Gore:

Bush v. Gore Blues - Professor David Kairys, Beasely School of Law, Temple University; in JURIST

Bush v Gore: What Were They Thinking? - David A. Strauss, an essay from The Vote: Bush, Gore, and the Supreme Court. "The most plausible hypothesis, I believe, is that several members of the United States Supreme Court were convinced that the Florida Supreme Court would try to give the election to Vice President Gore and would act improperly if necessary to accomplish that objective."

Bush v. Gore and the Boundary Between Law and Politics - Jack M. Balin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School. This article takes every "justification" to stop the count and analyzes its reasoning and precedent. This is a long article but worth the time.

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© 2002 by James R. Maxedon. All rights reserved.


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