Bush v. Gore

Brief Fact Summary.

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Synopsis of Rule of Law.

Under the Equal Protection Clause of the Fourteenth Amendment, states cannot value some votes over others by arbitrary and disparate treatment. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966).

Under3 U.S.C. § 5, states can resolve controversies pursuant to existing law so long as they do so six days before electors meet.

Facts.

The 2000 presidential election was very close in Florida, and some ballots were not registered—and thus not counted—in a machine vote count. The ballots were supposed to be perforated, but they were not perforated precisely enough for the machines to count them. The Florida Supreme Court ordered a manual recount of these ballots. They mandated that the manual recount be done by considering the “intent of the voter.”

Issue.

Did the Supreme Court have the authority to invalidate the Florida Supreme Court’s decision calling for  a manual recount considering the intent of voters?

Was a recount pursuant to the Florida Supreme Court’s decision arbitrary and disparate treatment in violation of the Equal Protection Clause of the Fourteenth Amendment?

Held.

Yes, the Supreme Court had the authority to invalidate the Florida Supreme Court’s decision calling for a manual recount considering the intent of voters.

Yes, the Florida Supreme Court’s decision would result in arbitrary and disparate treatment in violation of the Equal Protection Clause of the Fourteenth Amendment, because the court did not establish procedures for uniformity in the recount.

Reversed.

Dissent.

Justice Breyer

Justice Breyer argued that this case involved a political issue, and that there was no legal basis upon which the Supreme Court could base jurisdiction. Justice Breyer cited the Electoral Count Act, which named Congress as the government branch tasked with resolving disputes about electoral votes when states are unable to do so through judicial or other means. According to Justice Breyer, the Court should have allowed Florida to recount the votes under uniform standards.

Justice Stevens

Justice Stevens argued that there was no legal basis for federal judicial intervention in this case. Article II of the federal constitution allows state legislatures to direct the manner in which electors are appointed. Under Article V of the Florida Constitution, the state legislature was subject to judicial review. Justice Stevens argued that the Florida Supreme Court acted within the powers granted to it by the Florida Constitution, and that the Florida Supreme Court’s exercise of jurisdiction was also consistent with the federal constitution.

Justice Souter

Justice Souter argued that, although the Florida Supreme Court’s decision might have resulted in impermissible arbitrariness, the Supreme Court should have allowed the Florida courts to establish uniform standards for the recount.

Justice Ginsburg

Justice Ginsburg argued that the Court did not have authority to decide this case under Article II of the U.S. Constitution.

Concurrence.

Justice Rehnquist

Justice Rehnquist argued that Article II § 1, cl. 2 of the U.S. Constitution explicitly vests legislatures with the power to determine how electors for presidential elections will be appointed. Under this provision, Justice Rehnquist argued, the Florida Supreme Court undercut legislative intent to take advantage of the safe harbor provision in 3 U.S.C. § 5. Justice Rehnquist also agreed with the arguments made in the per curium decision.

Discussion.

The Court determined that it had the authority to reverse the Florida Supreme Court’s decision by citing 3 U.S.C. § 5. According to the Court, the Florida Supreme Court did not provide a constitutional recount procedure to satisfy the statute. The Florida Supreme Court’s “intent of the voter” instruction, without more guidance, amounted to arbitrary and disparate treatment in violation of the Fourteenth Amendment.  According to the Court, this case was rightfully before the Court, because it contained a federal and constitutional issue.