Understanding Bush v. Gore: Key Facts and Legal Implications
Explore the facts and background of the 2000 Bush v. Gore case, including the electoral results, voting issues in Florida, and the impact of manual recounts. Delve into the legal aspects such as the Equal Protection holding, Chief Justice Rehnquist's concurrence, and the dissenting opinions. Consider the case in relation to the 2020 election, The Twelfth Amendment, Electoral Count Act of 1887, Political Question Doctrine, Standing, and the role of the Court.
Uploaded on Sep 09, 2024 | 2 Views
Download Presentation
Please find below an Image/Link to download the presentation.
The content on the website is provided AS IS for your information and personal use only. It may not be sold, licensed, or shared on other websites without obtaining consent from the author. Download presentation by click this link. If you encounter any issues during the download, it is possible that the publisher has removed the file from their server.
E N D
Presentation Transcript
U.S. Constitutional Law I(T) Fall 2023 Bush v. Gore
Bush v. Gore Goals: Understand the facts of and background to the case Understand the majority s Equal Protection holding (7-2) Understand the concurrence by Chief Justice Rehnquist (3 votes) and its relation to the 2020 election Understand the majority (5 votes) and dissenting (4 votes) opinions as to halting the Florida recount Consider Bush v. Gore in light of The Twelfth Amendment The Electoral Count Act of 1887 Political Question Doctrine Standing The Court s role
Bush v. Gore: Facts and Background 2000 Election Results Nationwide Popular Vote and Electoral Votes: Bush: 50,456,002 | 271 Gore: 50,999,897 | 266 Florida: Bush: 2,912,790 (48.85%) | 25 Gore: 2,912,253 (48.84%) | 0
Bush v. Gore: Facts and Background Who would have won if Al Gore had gotten the manual counts he requested in four counties? Answer: George W. Bush. Who would have won if the U.S. Supreme Court had not stopped the hand recount of undervotes, which are ballots that registered no machine-readable vote for president? Answer: Bush, under 3 of 4 standards. Who would have won if all disputed ballots - including those rejected by machines because they had more than one vote for president - had been recounted by hand? Answer: Bush, under the 2 most widely used standards; Gore, under the 2 least used. Who does it appear most voters intended to vote for? Answer: Gore. Dennis Cauchon and Jim Drinkard, Florida Voter Errors Cost Gore the Election, USA TODAY, May 11, 2001
Bush v. Gore: Facts and Background Voting in Florida: Punch cards in many counties
Bush v. Gore: Facts and Background Problems: 1. Undervotes: The voter didn t punch the chad with sufficient force to make the machine read it as a vote. This made it appear to the machine that reads the ballots that the voter didn t cast a vote for a particular office (e.g., President, Representative). But a manual examination of the ballot might reveal the intention of the voter. Causes of problem: Not clear to voters how much force is needed. No alert in case of chad punched with insufficient force. Signs posted at voting places, but easy to miss.
Bush v. Gore: Facts and Background Problems: 2. Overvotes: The voter voted for two candidates for one office. A manual examination of the ballot is not likely to reveal the intention of the voter, though guesses might be possible (e.g., the voter cast straight party line votes for other offices, so probably meant to vote for the candidate of that party). Cause of problem: Confusing ballot design. No alert in case of overvote.
Bush v. Gore: Facts and Background How to Resolve? Art. II 1 cl. 2 Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Bush v. Gore: Facts and Background How to Resolve? Art. II 1 cl. 2 Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Bush v. Gore: Facts and Background Pursuant to Art. II 1 cl. 2, each state has statutes governing elections, including presidential elections. Florida statute: Governs recounts, among other things Governing standard is intent of the voter : No vote shall be ignored if there is a clear indication of the intent of the voter on the ballot, unless it is impossible to determine the elector's choice. 101.5614(5)-(6) Fla. Stat. (2000).
Bush v. Gore: Facts and Background Recount: Florida Supreme Court orders a manual recount with regard to undervotes: Manually examine each ballot to determine intent of the voter Overvotes: no solution
Bush v. Gore: Facts and Background Example: Palm Beach County Chad: The scored portion of a ballot card that is punched out when a voter casts a vote. Hanging Door Chad: One corner is still attached to the ballot. (Counted as a vote). Swinging Door Chad: Two corners are still attached to the ballot. (Counted as a vote). Tri Chad: Three corners are still attached to the ballot. (Counted as a vote). Dimpled Chad: Indented but still fully attached to the ballot. (Not counted as a vote). Pregnant Chad: Pierced but still fully attached to the ballot. (Not counted as a vote).
Bush v. Gore: Facts and Background Example: Broward County Broward County did count dimpled chads (but segregated them in anticipation that FL Supreme Court might rule they should not be counted).
Bush v. Gore: Facts and Background Why didn t the Florida Supreme Court, in its order for manual recount, set out a uniform standard for chads? 1.Some uncertainty whether the statute gave it that authority If the Court had nevertheless specified a uniform standard, it would have been criticized for departing from the statute, making up its own rules.
Bush v. Gore: Facts and Background Why didn t the Florida Supreme Court, in its order for manual recount, set out a uniform standard for chads? 2.The recount was to be supervised by a statewide magistrate, and would ultimately be subject to FL Supreme Court review, giving it the opportunity to provide for uniformity Counties typically segregated ballots by chad, so that totals could be adjusted to conform to a final FL Supreme Court ruling.)
Bush v. Gore: US Supreme Court Equal Protection Holding of the US Supreme Court Step 1: A fundamental interest at stake: No right to vote for President, under the Constitution But once the right to vote is granted, it s a fundamental interest for 14th Amendment purposes Why is it fundamental ? One source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.
Bush v. Gore: US Supreme Court Equal Protection Holding of the US Supreme Court Step 2: Differential treatment of fundamental interets: A state may not treat people differently with respect to a fundamental interest unless doing so is (a) necessary to achieve a (b) compelling governmental interest ( strict scrutiny ) Majority: 7-2 ruling: allowing different counties to count chads differently violates the 14th Amendment under this standard.
Bush v. Gore: US Supreme Court Equal Protection Holding of the US Supreme Court Step 2: Differential treatment of fundamental interests: At the very least: Must not be irrational or arbitrary (minimal scrutiny) Even if the differential treatment passes minimal scrutiny: A state may not treat people differently with respect to a fundamental interest unless doing so is (a) necessary to achieve a (b) compelling governmental interest ( strict scrutiny )
Bush v. Gore: US Supreme Court Equal Protection Holding of the US Supreme Court Step 3: Application: The Court holds that the different treatment of votes based on different standards for chads do not satisfy the minimum requirement for non-arbitrary treatment of voters In other words, doesn t pass even minimal scrutiny. But
Bush v. Gore: US Supreme Court Equal Protection Holding (Majority) But: our consideration is limited to the present circumstances Decision is intended to have no precedential effect. Why not?
Bush v. Gore: US Supreme Court Equal Protection Holding (Majority) The Court: the problem of equal protection in election processes generally presents many complexities.
Bush v. Gore: US Supreme Court Equal Protection Holding (Majority) Vast, nationwide implications if generalized Typically, each county in each state is different. Huge variation in chance of vote not being counted: Voting equipment differs Design of ballot differs Practices of what to do if there s a problem or ambiguity differs. These can differ within state; or from state to state. If generalized, the Supreme Court holding would cast the entire nationwide voting system for President as an Equal Protection violation.
Bush v. Gore: US Supreme Court Equal Protection Holding (Majority) One view: This was a one-day return train ticket good only today. Cf. Newdow, Rehnquist dissent: the proverbial excursion ticket good for this day only. Lower courts divided on the issue
Bush v. Gore: US Supreme Court Equal Protection Holding (Majority) The Supreme Court has never cited it (mentioned by Justice Thomas once in an opinion.) But Justice Kavanaugh cited the Rehnquist concurrence in his own concurrence to a Supreme Court order in 2020 declining to lift a 7th Circuit stay of a federal district court order requiring Wisconsin to extend mail-in ballot deadline.
Bush v. Gore: US Supreme Court Rehnquist concurrence (3 votes) Florida Supreme Court got the Florida statute wrong: Main ground: under the Florida statute, if a machine doesn t count a ballot because of a chad problem, there s no basis for a manual recount. It s the voter s fault. A recount (clearly provided for in the statute) means running the ballots through the reader a second time, and no more. He points to a notice the statute requires to be put up: AFTER VOTING, CHECK YOUR BALLOT CARD TO MAKE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.
Bush v. Gore: US Supreme Court Rehnquist concurrence (3 votes) Florida Supreme Court got the Florida statute wrong: What is the basis for the U.S. Supreme Court to rule that a state court has misinterpreted state law? Normally, none. According to the concurrence, Art. II 1 cl. 2 in the case of a presidential election.
Bush v. Gore: US Supreme Court Relief (5 votes) Halt the ongoing recount, leaving Bush with the majority as tallied without the recount. Main ground: No time to complete the recount by December 12, which was six days before the Electors were scheduled to meet. Was this factually correct? Yes; Supreme Court opinion was issued on December 12.
Bush v. Gore: US Supreme Court Relief (5 votes) Halt the ongoing recount, leaving Bush with the majority as tallied without the recount. But why not let recount proceed for the next 6 days, with final tally by December 18, in time for meeting of Electoral College? The Florida statute indicated state s desire to have final tally completed by six days before the Electoral College was to meet Six days before the Electoral College meets is a safe harbor under the Electoral Count Act of 1887, a federal statute. 3 U.S.C. 5 If a state completes its ballot counting by the safe harbor date, there can be no challenge to its results when the votes are counted before the Senate. Supreme Court assumes that Florida legislature would prefer to cut recount short to take advantage of safe harbor; does not cite a basis for that assumption.
Bush v. Gore: US Supreme Court Relief (5 votes) Halt the ongoing recount, leaving Bush with the majority as tallied without the recount. But why not let recount proceed for the next 6 days, with final tally by December 18, in time for meeting of Electoral College? If the Supreme Court had allowed the Florida Supreme Court-ordered recount to proceed it might well have been completed by December 18, allowing Florida s electoral tally to be submitted on time. This tally would be accepted as valid under the Electoral Count Act, unless challenged. Two questions
Bush v. Gore: US Supreme Court Relief (5 votes) Halt the ongoing recount, leaving Bush with the majority as tallied without the recount. But why not let recount proceed for the next 6 days, with final tally by December 18, in time for meeting of Electoral College? How would a challenge have proceeded? 107thCongress meets January 3, 2001; President Clinton s term to end January 20, 2001. There would need to be a challenge made by at least one member of the House, one member of the Senate Each house meets separately to debate; challenge is rejected unless both houses accept it: Republicans control House; Democrats control Senate by 50-50 split, with Vice President Gore as tie-breaker.
Bush v. Gore: US Supreme Court Political Question Doctrine Was the issue presented in Bush v. Gore a political question under the political question doctrine? Textually demonstrable commitment to a political branch Lack of judicially manageable standards Unusual need for unquestioning adherence to a political decision already made or embarrassment from multiple pronouncements by different branches Standing Did George W. Bush have standing in Bush v. Gore? Did Al Gore?
