George W. Bush with Al Gore outside of the Naval Observatory on December 19, 2000, after the Electoral College proclaimed Bush President-elect.
Respect for the Rule of Law and Bush v. Gore
The United States presidential election of 2000 was the closest presidential election in United States history because the winner was determined by a margin of 537 votes in the state of Florida. In order to win the presidency in the United States, a candidate must receive at least 270 electoral votes, a majority of the 538 total electoral votes. Republican candidate George W. Bush won the election with 271 electoral votes. The election was held on November 7, 2000. At approximately 8 p.m. that night, immediately after the polls closed in Florida, the Associated Press predicted that Gore would win Florida based on projections from exit polls. Within two hours, the major television networks retracted this prediction because Bush took a significant lead in the actual vote count in Florida. Gore conceded the election to Bush at 2:30 a.m. on November 8th; however, one hour later, when Gore learned that Bush’s lead in Florida has dropped to approximately 1,000 votes, Gore withdrew his concession.
What follows here is a description of the legal battles that took place before the Supreme Court of the United States made its final ruling. Throughout the five-week period between the election day and the meeting of the Electoral College, there was tremendous political tension throughout the country and, of course, especially in Florida. Throughout this five week-week period court orders and decisions were respected and dutifully carried out. The rule of law prevailed. Although the presidency at the United States was at stake, there were no riots or civil unrest. Majority-democratic and majority-republican counties began recounts when instructed to do so, and stopped counting votes when the courts issued injunctions. Vote recounting was undertaken in an orderly manner, despite numerous and simultaneous lawsuits that were taking place within such a short period of time.
Later on the morning of November 8th, Florida counties reported that Bush was leading Gore by 1,784 votes. Florida Election Code 102.141 mandated a machine-recount of the election ballots if the margin of victory was less than 0.5%. Because Bush’s margin of victory was a mere 0.02%, all votes in Florida required a mechanical recount. The governor of Florida at the time, George W. Bush’s brother Jeb Bush, recused himself from the election recount.
Palm Beach newspaper headlines the morning after the election of 2000 indicate the need to manually recount ballots.
By November 9th, 64 of the 67 counties in Florida had mechanically recounted their votes. Bush lead Gore by only 362 votes. In response to this narrow lead, Gore requested that ballots in Palm Beach, Broward, Miami-Dade, and Volusia counties, in all of which registered Democratic voters exceeded the number of registered Republican voters, recount ballots by hand. Two days later, Bush sought a federal injunction in the U.S, District Court for the Southern District of Florida to prohibit the selective hand-counting of ballots on the grounds that this was a violation of the Equal Protection Clause of the Fourteenth Amendment because he believed that all ballots should be recounted in the same manner. The following day, Palm Beach and Volusia Counties announced that they would manually recount all ballots countywide. On November 13, 2000, Florida’s Secretary of State, Katherine Harris, who had been appointed by Jeb Bush, announced that she would not extend the seven-day ballot-recount deadline set forth in Florida Election Code 101.112. That same day, Volusia County sued to extend the deadline in order to complete their full, manual recount and the U.S. District Court for the Southern District of Florida rejected Bush’s request to enjoin the recount.
A Florida ballot being scrutinized during the manual recounting process.
On November 14th, the Leon County state court rejected Volusia County’s request for extension of the ballot-recount deadline. On November 15th, Harris announced that Bush led Gore by 300 votes and brought an action in state court to enjoin any additional manual recounting of ballots in Miami-Dade, Broward, and Palm Beach counties because the statutory recount period set forth in Florida Election Code 101.112 had ended. Palm Beach County, which had halted its manual recount, simultaneously requested state court permission to continue its manual recount. The Florida Supreme Court denied Harris’ request to enjoin the manual recounting of ballots. Gore proposed a statewide manual recount of all votes in all 67 counties in Florida; however, Bush opposed this. The following day, Bush’s legal team submitted written arguments to the Eleventh Circuit Court of Appeals to enjoin manual recounting in Florida. Gore simultaneously filed a motion in Leon County state court to challenge the certification of the election results. Later that day, the Florida Supreme court ruled that Palm Beach County could continue manually recounting its ballots, despite the fact that the statutory recount period had ended. Minutes later, Palm Beach County resumed counting ballots.
On November 17th, the Leon County state court upheld Katherine Harris’ decision to reject recounted votes submitted after the statutory deadline; however, Florida Supreme Court blocked Harris from certifying the results of the election. The Eleventh Circuit Court of Appeals denied Bush’s request to stop further manual recounting; Miami-Dade County therefore resumed its manual recount. On November 20th, the Florida Supreme Court heard arguments as to whether Harris should certify the results of the election prior to completion of a full, manual recount. The next day, the Florida Supreme Court released a unanimous decision that the results of the extended, manual recount must be considered by Harris before certifying the election. The Florida Supreme Court decision extended the manual-recount deadline to November 26th. A day after the Florida Supreme Court released its decision, Bush petitioned the United States Supreme Court to stay it. Miami-Dade County voted to halt its manual recount and Gore brought another action in Florida state court, attempting to compel Miami-Dade County to continue recounting ballots. Gore’s action was rejected by the court and Miami-Dade County did not resume recounting the votes. In addition to the myriad of legal actions relating to the proper deadline for vote recounting, there were also court challenges to the configuration of Florida’s paper “butterfly” ballot and to what types of incompletely perforated marks on ballots should be counted as completed votes.
Butterfly ballot from Palm Beach County. Butterfly ballots were the subject of several lawsuits. Florida voters believed their layout was confusing. Some Gore-supporters claimed that the layout of the ballots led
them to accidentally vote for Reform Party candidate Pat Buchanan.
On November 24th, two days after Bush petitioned it for a stay, the United States Supreme Court granted certiorari to his case and set the hearing for December 1st. On November 26th, the recount extension deadline designated by the Florida State Supreme Court, Harris certified Florida’s election results in spite of numerous, ongoing court challenges. Harris declared Bush the winner by a margin of 537 votes. Jeb Bush signed the Certificate of Ascertainment to designate Florida’s electors to his brother. Gore contested the election certification and filed an action in the Leon County Circuit Court. On December 1, 2000, the United States Supreme Court heard oral arguments regarding the legitimacy of the Florida Supreme Court’s decision to allow counties to continue manually recounting ballots. A Gore request to allow additional, manual recounting of 14,000 disputed ballots from majority-democrat counties, was rejected by the Florida Supreme Court on that same day. Three days later, the United States Supreme Court handed down its decision in Bush v. Palm Beach Canvassing Board (531 U.S. 70,121 S. Ct. 471; 148 L. Ed. 2d 366 (2000)). In Bush v. Palm Beach Canvassing Board, the United States Supreme Court considered the issue of “whether the decision of the Florida Supreme Court, by effectively changing the State’s elector appointment procedures after election day, violated the Due Process Clause…and whether the decision of that court changed the manner in which the State’s electors are to be selected, in violation of the legislature’s power to designate the manner for selection under Art. II … of the United States Constitution.” Although the United States Supreme Court generally gives deference to state court interpretations of state statutes, the United States Constitution and federal legislation set parameters for the selection of electors in presidential elections. According to 3 U.S.C. § 5, the selection of electors made pursuant to a state law in place prior to election day are conclusive. The United States Supreme Court vacated and remanded the Florida Supreme Court’s decision because the United States Supreme Court justices were “unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’s authority under Art. II §1, cl. 2” and to the Florida Supreme Court’s consideration of 3 U.S.C. § 5. Florida Circuit Justice Sanders Sauls ruled that manual ballot recounts in Palm Beach and Miami-Dade counties were not warranted. On December 6th, the Eleventh Circuit Court of Appeals denied Bush’s appeal to disregard the results of the manual ballot recounts in three counties in southern Florida. In a 4-3 decision released on December 8th, the Florida Supreme Court reversed the lower court’s decision and ordered the state to begin manually recounting “undervotes,” votes which had not been counted by voting machines due to unclear ballot markings. Florida immediately began a statewide manual recount of its “undervotes.” Bush subsequently petitioned the United States Supreme Court to stay the Florida Supreme Court’s December 6th order. The Florida state legislature met in a special session to determine whether they should name the state’s 25 electoral college representatives. On December 12th, 2000, the United States Supreme Court handed down its decision in Bush v. Gore (531 U.S. 98; 121 S. Ct. 525; 148 L. Ed. 2d 388(2000)). The United States Supreme Courtheld that the manual recounting of election ballots in Florida ordered by the Florida Supreme Court constituted a violation of the Fourteenth Amendment’s Equal Protection Clause because the methods being used to manually recount votes did “not satisfy minimum requirements for the nonarbitrary treatment of voters that are necessary to secure the fundamental right to vote as the state's legislature has prescribed.” Specifically, no uniform guidelines were set by the Florida Supreme Court for how to determine which types of marks or “chads” on ballots that were not tabulated as a vote by voting machines should be considered sufficient intent of a vote. Since all ballots are anonymous, the intention of the voter had to be discerned from the punch-card ballot itself, a highly subjective exercise. The manual vote counting of “undervotes” that had taken place prior to the United States Supreme Court’s hearing of the case varied by county and within counties. In addition, “overvotes” which should not have counted as legal votes were not being manually recounted. The United States Supreme Court also noted that Florida’s voting machines were not designed to cull out over and under-vote ballots.
Image of and diagram showing possible types of “undervotes” from the Florida ballots used
in the 2000 Presidential Election. Incomplete puncture marks on ballots became known as “chads.”
Given the very limited amount of time that Florida had to certify its election results before the meeting of the Electoral College, the United States Supreme Court concluded that the only fair way to count votes in Florida was to rely on the machine recounts. Even if standardized, statewide guidelines were proposed to the Florida Supreme Court, there was insufficient time for the Florida Supreme Court to approve such guidelines and for manual recounts to be completed. In the wake of the United States Supreme Court’s decision in Bush v. Gore, all counties in Florida immediately stopped recounting their ballots. The following day, Gore conceded the election and, when the electoral college met six days later on December 18th, Bush received 271 electoral votes and became the 43rd president of the United States.
Counties where George Bush won the popular vote are shown in red.
Counties where Al Gore won the popular vote are shown in blue.
Again and to re-emphasize, throughout the five-week period between the election day and the meeting of the Electoral College, there was tremendous political tension throughout the country and, of course, especially in Florida. Throughout this five week-week period court orders and decisions were respected and dutifully carried out. The rule of law prevailed. Although the presidency at the United States was at stake, there were no riots or civil unrest. Majority-democratic and majority-republican counties began recounts when instructed to do so, and stopped counting votes when the courts issued injunctions. Vote recounting was undertaken in an orderly manner, despite numerous and simultaneous lawsuits that were taking place within such a short period of time.