Bush v. Gor
The Bush v. Gore decision by the U.S. Supreme Court in 2000 was momentous due to the gravity of the situation: the presidency hung in the balance. Unlike many of the Supreme Court’s cases which are carefully selected and laboriously debated, this one happened quickly, had a deadline, and put the court in a most controversial position.
The electoral contest between Republican George W. Bush and Democrat Albert Gore came down to the state of Florida, where the margin was very thin: initial voting returns showed Bush had fewer than 2,000 more votes than Gore. When mandatory recounts took place that lead shrunk to under 400 votes. Then the Florida Secretary of State claimed she had certified returns from all counties while several were still conducting recounts. The winner of the popular vote in Florida would take all of the state’s electoral college votes and win the presidency.
The Florida Supreme Court ordered a complete recount but the U.S. Supreme Court, by a vote of 5-4, ordered the recount stopped, saying that because of differences among the ways votes cast in various counties were counted or rejected (a.k.a. the “hanging chad” issue) which could damage or be unfair to candidate George Bush. This was the court’s only decision; it did not decide the presidency except by stopping the recount.
As the deadline of December 12 was looming for the state to send its electors to determine the winner the Court stepped in and stopped the recount. Questions swirled: did the deadline mean the mandatory recount had to be concluded by then, or halted? Did the December 12 deadline mean a court-ordered recount could not pass that preordained date? Did the Electoral College schedule trump constitutional issues? Rather than seek the answers to those questions the Court simply squelched the process.
The Equal Protection Clause of the Fourteenth Amendment was the primary consideration, with Bush arguing that the recount in Florida was unconstitutional because there was no standard procedure across all 67 counties. Gore held that it would be unconstitutional to throw out the recount in Florida because that action would render every recount void.
The Supreme Court used the rare per curiam option for releasing its decision, a technique that is usually brief and shields individual justices. Although the Bush v. Gore decision was released per curiam it included concurrences and dissents.
The dissenting Supreme Court justices criticized their colleagues for getting involved in a state-level dispute (albeit one with national repercussions). Others pointed out that the Court’s actions in this case were self-serving because at least two justices had family members actively working on the Bush campaign or on its behalf.