December 9, 2011
On December 9, 2000, the U.S. Supreme Court issued an injunction that halted the manual recounting of votes for the 2000 U.S. presidential election in Florida.
Decided 5-4 along political lines, the injunction vacated the Florida Supreme Court’s decision from the previous day that had ordered the statewide manual recount of “undervotes,” and adding in those votes that were “legally cast.”
“Undervotes” are votes for U.S. President that were not counted by voting machines because it couldn’t determine for whom the vote was cast.
There have been various different works surrounding the entire saga of the 2000 election and the Florida recount, and they cover it extensively.
However, this particular decision has several very notable legal aspects by itself that are often overlooked in the larger narrative of the dispute.
First, the injunction also granted a writ of certiorari where none was requested by either party.
Albeit any order enjoining the Florida Supreme Court’s judgment would necessarily require some kind of follow up by the U.S. Supreme Court, it still represents a unique procedural situation.
Because the Florida State Supreme Court ruling was decided purely on the grounds of Florida law, rather than federal law.
That brings up the next significant aspect: jurisdiction.
Theoretically, for the Supreme Court to hear an appeal from a state court of last resort, some federal law must be involved (assuming, of course, that there is no federal subject-matter jurisdiction).
This federal law came in the form of an alleged violation of the Equal Protection Clause of the Fourteenth Amendment.
Specifically, because the Florida Supreme Court hadn’t specifically defined “legally cast,” and each county had different standards, there was a possibility that some votes may be counted that were not “legally cast.”
That, the Court found, would violate George W. Bush’s constitutional right to Equal Protection under the law.
Mind you, this point was contemplated as to whether to grant Bush’s request for an injunction (injunctions require a substantial showing of a likelihood both of success on the merits and irreparable harm).
Meaning, the Court ruled that a continued manual recount of the votes uncounted by voting machines constituted an irreparable harm because some of those votes could be counted incorrectly.
That the Court espoused this expansive view of the Equal Protection clause isn’t as significant as the fact that Justices Thomas and Scalia, and Chief Justice Rehnquist did, considering how narrowly these three Justices had historically applied the Fourteenth Amendment’s Equal Protection clause.
This brings up the final point: the injunction effectively decided the winner of the presidential election.
Although it didn’t officially end all election proceedings – the decision three days later did–it did effectively end all vote recounting and any other election activity by Florida officials.
This isn’t meant to say that SCOTUS’s decision was a different result than had the votes actually been counted, since no official recount was ever completed, it’s impossible to know who was the real winner in Florida.*
What this is meant to say is that SCOTUS, by granting the injunction and making it official two days later, decided what votes should and should not be counted.
As mentioned earlier, we’ll probably never know how Florida would have gone had the manual recount proceeded.
Instead of leaving it up to chance – or rather, the votes – the Supreme Court took matters into its own hands and decided the election itself.