Full Version: Bush v. Gore, 2000 SCOTUS decision
As we head up to a new national election, I find myself looking at what went wrong with the election of 2000. In particular the peculiar events that happened in Florida in 2000. So many odd things happened that I don't think I still understand what went wrong and whether the things that went wrong changed the results of the election or not.
In this thread I am trying to investigate one aspect of the election, the SCOTUS decision of 2004 and its legitimacy.
My questions for debate are as follows:
Do you feel that the Supreme Court should have accepted this case? Why or why not?
In your understanding what was the legal decision made in the Bush v Gore decision? In other words, what argument(s) did the court's majority use in rendering its decision and what did the decision do? (A little rehash will help those that may have forgotten.)
Was the decision closer to being good law that protected the union from a dangerous clouded issue of succession or was it a partisan decision made more by people who had a direct interest in the result of the election who searched for legal justification to achieve the ends that each justice desired?
edited to provide links
U.S. Supreme Court rules manual vote recounts unconstitutional
SCOTUS blog (search for the link to the Vanity Fair article
None Dare Call It Treason
Bush v. Gore
In this thread I am trying to investigate one aspect of the election, the SCOTUS decision of 2004 and its legitimacy.
My questions for debate are as follows:
Do you feel that the Supreme Court should have accepted this case? Why or why not?
In your understanding what was the legal decision made in the Bush v Gore decision? In other words, what argument(s) did the court's majority use in rendering its decision and what did the decision do? (A little rehash will help those that may have forgotten.)
Was the decision closer to being good law that protected the union from a dangerous clouded issue of succession or was it a partisan decision made more by people who had a direct interest in the result of the election who searched for legal justification to achieve the ends that each justice desired?
edited to provide links
U.S. Supreme Court rules manual vote recounts unconstitutional
SCOTUS blog (search for the link to the Vanity Fair article
None Dare Call It Treason
Bush v. Gore
Good topic, Eeyore. I think this decision is oft misunderstood...perhaps a reexamination of it 4 years removed from the emotion of the moment will help put this issue to rest...at least one can always hope 
Do you feel that the Supreme Court should have accepted this case? Why or why not?
Yes, and No (nothing like sitting on the fence, eh?). Yes, because it was clearly an important decision, that probably would have found its way to the highest court anyway. No, because the issue facing it didn't justify reaching that level from a legal perspective.
In your understanding what was the legal decision made in the Bush v Gore decision? Basically, the court upheld that legally documented election procedures should be followed.
Was the decision closer to being good law that protected the union from a dangerous clouded issue of succession or was it a partisan decision made more by people who had a direct interest in the result of the election who searched for legal justification to achieve the ends that each justice desired?
I don't believe the decision was 'partisan' in the slightest. I don't think any of the justices allowed their political leanings to sway their decision. Rather, I think the issue was decided based on their siding on the strict interpretation vs. loose definition of law issue. Clearly, there were attempts to violate Florida voting law in order to institute recounts. Those who favored strict following of the law went that way in their decision...those that looked at issues in broader terms of what is right went that way in their decision, as that thought process would allow for there to be exceptions to the stated law, whereas the strict interpretation doctrine would not (ie...I think they would have ruled the same way had the election results been reversed going in).
As such, I believe that their decision was in fact good law. What good are election procedures if they can be violated at the behest of whomever stands to benefit? Might as well not have any procedures at all. I think this becomes clear if the events are viewed outside of the circumstances....ie, if this were being proposed in some minor election, or some place where the entire national election didn't hinge on the outcome. I think the court would have dismissed the issue out of hand then, since the real issue in that case would have been simply whether or not election procedures should indeed be followed, to which the court would clearly have said yes. This only became an issue worthy of consideration at all due to circumstances, not due to the law being applied.
Do you feel that the Supreme Court should have accepted this case? Why or why not?
Yes, and No (nothing like sitting on the fence, eh?). Yes, because it was clearly an important decision, that probably would have found its way to the highest court anyway. No, because the issue facing it didn't justify reaching that level from a legal perspective.
In your understanding what was the legal decision made in the Bush v Gore decision? Basically, the court upheld that legally documented election procedures should be followed.
Was the decision closer to being good law that protected the union from a dangerous clouded issue of succession or was it a partisan decision made more by people who had a direct interest in the result of the election who searched for legal justification to achieve the ends that each justice desired?
I don't believe the decision was 'partisan' in the slightest. I don't think any of the justices allowed their political leanings to sway their decision. Rather, I think the issue was decided based on their siding on the strict interpretation vs. loose definition of law issue. Clearly, there were attempts to violate Florida voting law in order to institute recounts. Those who favored strict following of the law went that way in their decision...those that looked at issues in broader terms of what is right went that way in their decision, as that thought process would allow for there to be exceptions to the stated law, whereas the strict interpretation doctrine would not (ie...I think they would have ruled the same way had the election results been reversed going in).
As such, I believe that their decision was in fact good law. What good are election procedures if they can be violated at the behest of whomever stands to benefit? Might as well not have any procedures at all. I think this becomes clear if the events are viewed outside of the circumstances....ie, if this were being proposed in some minor election, or some place where the entire national election didn't hinge on the outcome. I think the court would have dismissed the issue out of hand then, since the real issue in that case would have been simply whether or not election procedures should indeed be followed, to which the court would clearly have said yes. This only became an issue worthy of consideration at all due to circumstances, not due to the law being applied.
I also believe that this case is often misunderstood.
A good resource: Bush v. Gore
The Equal Protection Clause was the issue here. Can different standards be applied in different venues?
The Supreme Court ruled (correctly, in my opinion) that the different standards were a violation of the Equal Protection Clause. A recount of some votes and not all votes was also un-Constitutional.
It should be noted that the decision was 7-2, not exactly a split along Party lines.
A good resource: Bush v. Gore
QUOTE
Facts of the Case
Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.
Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.
QUOTE
Question Presented
Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?
Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?
QUOTE
Conclusion
Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case
Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case
The Equal Protection Clause was the issue here. Can different standards be applied in different venues?
The Supreme Court ruled (correctly, in my opinion) that the different standards were a violation of the Equal Protection Clause. A recount of some votes and not all votes was also un-Constitutional.
It should be noted that the decision was 7-2, not exactly a split along Party lines.
Do you feel that the Supreme Court should have accepted this case? Why or why not?
No, the Supreme Court should not have ruled on the issue. The initial arguments which caused the case to be heard were as follows, from the infamous Vanity Fair article (part 1) PDF:
The Bush legal team had their first complaint right, but too bad it was Katherine Harris (a Republican) that was attempting to change election laws and not Al Gore.
When the Absentee Ballot debacle came around, Harris made a declaration that absentee ballots were not required to be postmarked on or before election day to be counted. However, Florida election law stated that absentee ballots could only be accepted 10 days after an election as long as they were sent from abroad and postmarked by election day.
Equal Protection was also not violated by Gore, he was fully justified according to Florida election law to request a partial recount of certain counties. It was partisan politics at its worst. Also from the Vanity Fair article:
Finally, the Florida Supreme Court was not overstepping its powers, it was simply trying to ensure that election law was followed. It was not attempting to change election law or anything of the sort.
This was and should have been an issue decided upon by the Florida Supreme Court. In the US Constitution Article II and Amendment XII, it is not written that a state is required to send electors to vote for the president. If Florida couldn't come to a consensus on the president, the vote should have been done based on the other 49 states in my opinion. That would have been very unfortunate, but it would have been much more fair and equitable than having the supreme court "select" the President of the United States.
Was the decision closer to being good law that protected the union from a dangerous clouded issue of succession or was it a partisan decision made more by people who had a direct interest in the result of the election who searched for legal justification to achieve the ends that each justice desired?
Regarding this question, I think that what went on behind closed doors was clearly partisan in nature. To get some insight into this, it is worth taking the time to read the 30 page article that appeared in Vanity Fair called "The Path to Florida" - Part 1 (PDF) and Part 2 (PDF). As you may or may not know, this article is infamous because some of the clerks working in the court broke with their ethics to be interviewed for this story. I don't necessarily agree with their decision, but the point here is that the bell has been rung and it can't be un-rung. As an example, consider the following passage:
Additionally, the motivations behind this were highly suspect from the beginning. When the supreme court was petitioned, the conservative justices immediately jumped on the chance to hear the case.
No, the Supreme Court should not have ruled on the issue. The initial arguments which caused the case to be heard were as follows, from the infamous Vanity Fair article (part 1) PDF:
QUOTE
The first, based on an obscure law from 1887, prohibited states from changing the rules after the date of that election. The second, a jurisdictional issue, was that by stepping into the case the Florida Supreme Court had usurped the Florida legislature’s exclusive powers to set the procedures for selecting electors, as provided for by Article II of the United States Constitution. The Bush lawyers claimed, too, that the selective recounts violated constitutional guarantees of due process and equal protection - meaning the different criteria for recounting the ballots did not give equal rights to all voters.
The Bush legal team had their first complaint right, but too bad it was Katherine Harris (a Republican) that was attempting to change election laws and not Al Gore.
When the Absentee Ballot debacle came around, Harris made a declaration that absentee ballots were not required to be postmarked on or before election day to be counted. However, Florida election law stated that absentee ballots could only be accepted 10 days after an election as long as they were sent from abroad and postmarked by election day.
Equal Protection was also not violated by Gore, he was fully justified according to Florida election law to request a partial recount of certain counties. It was partisan politics at its worst. Also from the Vanity Fair article:
QUOTE
Baker saw his chance that Thursday, November 9, when the Gore team made a formal request for a manual recount in four counties: Volusia, Palm Beach, Broward, and Miami-Dade. Asking for a recount in these large, Democrat-dominated counties left the Gore team fatally vulnerable to the charge that they wanted not all votes counted, as Gore kept claiming in his stentorian tones, but only all Gore votes. Yet the Bush team knew full well that Gore could not have asked for a statewide recount, because there was no provision for it in Florida law. A losing candidate had 72 hours to request a manual recount on a county-by-county basis or wait until the election was certified to pursue a statewide recount. The requests had to be based on perceived errors, not just the candidate’s wish to see recounts done. Certainly, Gore chose counties that seemed likely to yield Gore votes. But he chose them because that’s where the problems were. Proper as this was by Florida election law, the Democrats’ strategy gave Baker the sound bite he’d been seeking: Gore was just cherrypicking Democratic strongholds. It was a charge the Bush team wielded to devastating effect in the media, stunning the Gore team, which thought its strategy would be viewed as modest and fair.
Finally, the Florida Supreme Court was not overstepping its powers, it was simply trying to ensure that election law was followed. It was not attempting to change election law or anything of the sort.
This was and should have been an issue decided upon by the Florida Supreme Court. In the US Constitution Article II and Amendment XII, it is not written that a state is required to send electors to vote for the president. If Florida couldn't come to a consensus on the president, the vote should have been done based on the other 49 states in my opinion. That would have been very unfortunate, but it would have been much more fair and equitable than having the supreme court "select" the President of the United States.
Was the decision closer to being good law that protected the union from a dangerous clouded issue of succession or was it a partisan decision made more by people who had a direct interest in the result of the election who searched for legal justification to achieve the ends that each justice desired?
Regarding this question, I think that what went on behind closed doors was clearly partisan in nature. To get some insight into this, it is worth taking the time to read the 30 page article that appeared in Vanity Fair called "The Path to Florida" - Part 1 (PDF) and Part 2 (PDF). As you may or may not know, this article is infamous because some of the clerks working in the court broke with their ethics to be interviewed for this story. I don't necessarily agree with their decision, but the point here is that the bell has been rung and it can't be un-rung. As an example, consider the following passage:
QUOTE
Even some of the justices voting with Scalia squirmed at how publicly he’d acknowledged the divisions within the Court. To the liberal clerks, what he had written was at least refreshing in its candor. “The Court had worked hard to claim a moral high ground, but at that moment he <expletive> it away,” one recalls. “And there was a certain amount of glee. He’d made our case for us to the public about how crassly partisan the whole thing was.”
Additionally, the motivations behind this were highly suspect from the beginning. When the supreme court was petitioned, the conservative justices immediately jumped on the chance to hear the case.
QUOTE
Under the Court’s rules, Kennedy needed only three votes beside his own for the Court to hear the matter. Quickly, the four others who make up the Court’s conservative block signed on: Chief Justice William Rehnquist, along with Justices Antonin Scalia, Clarence Thomas, and Sandra Day O’Connor.
QUOTE(Amlord @ Oct 19 2004, 02:43 PM)
The Equal Protection Clause was the issue here. Can different standards be applied in different venues?
The Supreme Court ruled (correctly, in my opinion) that the different standards were a violation of the Equal Protection Clause. A recount of some votes and not all votes was also un-Constitutional.
It should be noted that the decision was 7-2, not exactly a split along Party lines.
The Supreme Court ruled (correctly, in my opinion) that the different standards were a violation of the Equal Protection Clause. A recount of some votes and not all votes was also un-Constitutional.
It should be noted that the decision was 7-2, not exactly a split along Party lines.
I was interested when I read the recent Vanity Fair article. I thought the tone of the article violated journalistic standards for solid news in two regards. It used value based language that always favored the Democratic side of the argument. The article relied on rumor to present ideas about why things happened.
I really don't know where Vanity Fair fits into the serious journalism standards, it is the first time I have read one of their articles and I bought the magazine for my wife to read on vacation.
However, it was very detailed and thought provoking in several ways.
There is a reference in the article to an opinion footnote that was originally written up by Justice Ginsberg that said the the equal protection clause, if it was to be a basis for the decision, should also be applied to black voters in Florida who seem to have been targeted by several irregular (seeming practices) (Such as a felony list that had lax standards for matching, 70% of a name for example. This reputedly pulled people of aff the list for having a similar name but not a Jr., or having first and last names of a felon but not having the same last name) The article argues that Ginsberg removed this footnote after Justice Scalia called it playing the Sharpton card in resolving the issues of the presidential election.
I get confused by invoking the equal protection clause additionally because of the nature of the system where autonomy exists at the local level and different systems are applied throughout the state, including using different systems to apply the felons list to the voter rolls throughout the state.
I also noted that the unsigned decision in that first eight and then seven of the justices agreed that the equal protection clause was the main issue. (At least this seems to be what the decision is saying.) Yet in reality the decision was a 5-4 decision split between conservatives and liberals.
QUOTE(Hobbes @ Oct 19 2004, 01:48 PM)
I don't believe the decision was 'partisan' in the slightest. I don't think any of the justices allowed their political leanings to sway their decision. Rather, I think the issue was decided based on their siding on the strict interpretation vs. loose definition of law issue. Clearly, there were attempts to violate Florida voting law in order to institute recounts.
On the clear attempts to violate the Florida law in order to institute recounts. At this point it is not so clear to me. I don't have a rebuttal or even a certainty tat I disagree. Hobbes could you finish this point for the sake of debate?
On the strict interpretation versus loose construction side of this argument, doesn't the strict interpretation side tend to say that this is a matter of states rights and leave an issue such as this to be resolved by the high court of the state that is involved. It was a state law, and strict interpretationists have tended not to be big fans of the fourteenth amendment as it trespasses on issues that were formally reserved for the state.
I have to go back to the beginning because this debate has already shaken my confidence of the reason the court heard this case and the way it ruled.
I'll be back....
QUOTE(Hobbes @ Oct 19 2004, 11:48 AM)
Rather, I think the issue was decided based on their siding on the strict interpretation vs. loose definition of law issue. Clearly, there were attempts to violate Florida voting law in order to institute recounts.
I don't believe that is correct, because recounts were not against Florida law. As I laid out in my post:
QUOTE
A losing candidate had 72 hours to request a manual recount on a county-by-county basis or wait until the election was certified to pursue a statewide recount. The requests had to be based on perceived errors, not just the candidate’s wish to see recounts done.
Therefore, according to Florida election law, Gore had every right to request a recount from the counties he did. The problem came in when Harris and those on Bush's side of the fence did everything they could to prevent the application of Florida election law.
Gore would have still been within his rights to request a full recount even after the Supreme Court decision because he had now been certified as the loser, but regrettably he chose not to do so.
If this was an issue concerning the 14th Amendment then I believe that the Supreme Court was right to take it on, as it is surely within its jurisdiction, and incredibly important.
However, I don't think that the equal protection clause definitely falls down on the side of Bush. If all votes are to be counted equally then it clearly goes against that to rule against a process that ought to improve the accuracy of the count. Otherwise it is just as valid to say that there were votes that weren't counted properly in the first place and that the equal protection clause has been violated.
The Supreme Court's decision was based on good law, as the recount clearly could not treat each vote fairly, but there is no way in practice that every vote will be counted perfectly. With the recount you could perfectly well say, as is the case with a normal paper election (as happened at the time of the 14th Amendment I suppose), that even if each vote isn't counted the same way then at least each vote has the same chance as any other vote of being counted in a certain way. A form of equality is maintained. The equal protection clause is designed to prevent electoral fraud, but this case looks at no fraud issues.
I would have gone for a recount, but maybe that's because I would have preferred Gore to win
I think the decision was partisan. They had a choice within the law, and plumped for Bush.
However, I don't think that the equal protection clause definitely falls down on the side of Bush. If all votes are to be counted equally then it clearly goes against that to rule against a process that ought to improve the accuracy of the count. Otherwise it is just as valid to say that there were votes that weren't counted properly in the first place and that the equal protection clause has been violated.
The Supreme Court's decision was based on good law, as the recount clearly could not treat each vote fairly, but there is no way in practice that every vote will be counted perfectly. With the recount you could perfectly well say, as is the case with a normal paper election (as happened at the time of the 14th Amendment I suppose), that even if each vote isn't counted the same way then at least each vote has the same chance as any other vote of being counted in a certain way. A form of equality is maintained. The equal protection clause is designed to prevent electoral fraud, but this case looks at no fraud issues.
I would have gone for a recount, but maybe that's because I would have preferred Gore to win
I think the decision was partisan. They had a choice within the law, and plumped for Bush.
This is a simplified version of our main content. To view the full version with more information, formatting and images, please click here.