Today in 2000: Bush v. Gore is decided

December 12, 2014

Today in Legal HistoryThere are many commentators who argue that many of the Supreme Court’s more recent rulings are politically-motivated, and that the current court is more politically divided than nearly any other time in recent history.

Of course, in the public mind, when the phrase “politically-motivated Supreme Court ruling” is uttered, there is one case above all others that comes to mind: Bush v. Gore.

The ruling halted the manual recount of votes in the state of Florida in the 2000 presidential election, thereby handing Florida’s 25 Electoral College votes to George W. Bush, bringing his total to 271, one more than needed to win the presidential election.  In other words, the Supreme Court decided the winner of the 2000 presidential election.

Naturally, there is some disagreement on this point, and those who disagree point to a study by a consortium of newspapers released in November 2001 that found that Bush would have won the election even if the Court hadn’t stepped in.

That conclusion is somewhat erroneous, though, since the study also concluded that “[i]f all the ballots had been reviewed under any of seven single standards, and combined with the results of an examination of overvotes, Mr. Gore would have won, by a very narrow margin.”

How did the study that concluded Bush would have won, had the recount proceeded unhindered, also make this same observation?  The study assumed that the counties would have only evaluated “undervotes” – that is, ballots on which voting machines didn’t register any vote for president – while ignoring “overvotes” – ballots on which voting machines registered two or more votes for president.  Without these “overvotes,” Bush would have won the election (though by a narrower margin than the 537 vote margin that came from the officially certified votes after the Court ruling).

According to reports, however, Judge Terry Lewis, who was charged with overseeing the recount efforts, had ordered counties to count both undervotes and overvotes.  Thus, had the manual recount been allowed to proceed without Court intervention, it’s likely that Gore would have emerged as the winner.

But there’s no definite way of knowing the results of the recount, so there’s no way to know the outcome for certain.  But it is certain that Bush v. Gore removed that uncertainty by effectively declaring Bush the winner of the election.

But even though the ruling all but decided the election, and was decided 5 to 4 along ideological lines, was the opinion’s legal foundation sound?

Well, that’s difficult to say, since the theory used by the majority to justify its holding – that the Florida Supreme Court ruling had violated the equal protection rights of some voters by not setting forth a uniform standard for what constitutes a legal vote – hadn’t been seen in any previous Court rulings.

The majority noted that, since different counties may use different standards of counting votes, there would be some votes that would be considered “legally cast” in one county, while another county may have reached the opposite conclusion.  And this lack of a prevailing standard violated the Equal Protection Clause of the Constitution.

Although the justices of the majority have largely stayed silent about the case since the ruling – with the sole exception being Justice Sandra Day O’Connor, who last year called the Court’s review of the matter “a mistake” – the dissenting justices were and continue to be vocal about the ruling (even the text of the opinion itself is comprised more of dissent than majority, since each dissenting justice wrote his or her own dissenting opinion).

For all the consternation that it’s caused over the years, however, there’s no changing the result of the ruling: President Bush served his eight years in office already, and nothing short of time-travel will change that.

Nevertheless, the ruling remains a sore topic for many – even six years after Bush left office.