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Bush v. Gore 2000 After Super Tuesday the country held its breath waiting for Florida to finish recounting its votes. The world watched as canvassers sat at tables arguing over whether this hanging chad or that indentation would count as an actual vote. Despite all the media attention, the real action was going on in the courts. There are several significant cases in Florida that lead to the Bush v. Gore decision; looking into these cases is the only way to grasp how truly chaotic the events in Florida were leading up to the Bush v. Gore decision. With an understanding of the situation in Florida, it is then possible to review the outcome of the Bush v. Gore . Chronologically, the first significant case relating to this election was Palm Beach County Canvassing Bd. v. Harris 2 . The opinion of the F.S.C. does an excellent job of explaining the situation in Florida in the aftermath of the election. On November 8 th 2000, the Florida Division of Election announced that G.W. Bush had beaten Al Gore by 1,784 votes a difference of less then one half a percent. Section § 102.141 of the Florida election code (F.E.C.), required an automatic recount be conducted when the results of an election were this close. When the results of this recount were presented, G.W. Bush's lead had been seriously diminished. November 9 th dawned on yet a new set of manual recounts in Broward, Palm Beach, and Volusia counties. These were done in response to F.E.C. § 102.166 requiring a sample manual recount of at least one percent of the ballots cast in these counties; since the first recount had shown a possibly significant difference in outcome. This manual recount revealed “an error in the vote tabulation which could affect the outcome of the election”, according to several of the county canvassing boards. With this new information the county canvassing boards voted to do countywide recounts, according to F.E.C. § 102.166(5)(c). This resulted in the first legal issue of the recounts. F.E.C. § 102.111 requires that all county returns be certified and returned no later then 5pm on the seventh day after the election (November 14 th ). Realizing the serious likelihood of not being able to meet this deadline, the Palm Beach County then sought an opinion from their Division of Elections regarding the deadline. The Division of Elections responded, that unless there were “unforeseen circumstances” they had to meet the deadline of November 14 th at 5pm. Utilizing the opinion of the Division of Elections, the Florida Secretary of State Katherine Harris, produced a statement on November 13 th declaring that she would ignore any results from manual recounts submitted after the November 14 th 5pm (the next day!) deadline. At this point it is important to note that Harris had a very serious conflict of interest as the head of Florida elections, because she was also G.W. Bush's presidential campaign manager. It is also noteworthy that Harris ran for the office of Secretary of State of Florida while already G.W. Bush's campaign manager (Moore). So on the one hand she has a duty to the state of Florida to conduct an impartial and fair election. Then on the other she is working to make sure that G.W. Bush beats Al Gore. Later that same day, in response to Harris's statement, the Volusia County Canvassing Board filed suit in the Circuit Court of the Second Judicial Circuit in Leon County Florida, McDermott v. Harris 3 , seeking declaratory and injunctive relief. This would allow them more time to perform a manual recount and ensure that Harris would not ignore the results of the manual recount. This court ruled that Volusia may submit amended returns after the deadline and Harris can decide for herself whether or not to ignore them after, “considering all attendant facts and circumstances”. In response Harris declared she had certified returns for every county (from the first recount) in Florida. She stated further, that if a county wished to amend their previously submitted certified results, they would be due on November 15 th (the next day) at 2pm. Four counties made this deadline; Harris rejected their recounted results, arguing that she did not believe that there was a significant reason to do recounts; and announced that she would use the certified results from the first recount. On November 16 th the Florida Democratic Party (F.D.P.) and Al Gore filed a motion in the Circuit Court of the Second Judicial Circuit in Leon County, Florida, seeking to force Harris to honor the manual recount returns. On November 17 th their motion was denied. In response, the F.D.P. and Gore took their case to the First District Court of Appeals. The First District Court of Appeals certified this case to the F.S.C. with “pass-through” jurisdiction. The F.S.C. sets the tone of their opinion by stating, “the will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principal in election cases.” The F.S.C. must decide when it is legal to authorize a countywide recount in accordance with F.E.C. § 102.166(5). It also must decide if the Secretary of State has to accept the results of these recounts after the deadline set in F.E.C. § 102.111 and F.E.C. § 102.112. To the first issue, the F.S.C. replied that the Division of Elections is using a definition of “error in vote tabulation” which is contrary to the plain meaning of F.E.C. § 102.166(5). The Division of Elections believes it to be narrowly focused to “incorrect election parameters or an error in the vote tabulating software”. This mistake was caused by the assumption of the Division of elections that “error in the vote tabulation” was the same as “error in the vote tabulation system”. Without the word “system” it is clear that there are more factors than parameters or software that can justify the need for a recount. With the legality of allowing manual recounts established, the court moved onto the deadline issue. The deadline issue is caused by contradictions in the statutes governing the time frame allowed for a manual recount and the Secretary of State's discretion in accepting revised certified recounts. The conflict over deadlines revolves around “A Board “may” authorize a manual recount…” according to F.E.C. § 102.166, while F.E.C. § 102.111 and F.E.C. § 102.112 say that Boards “must” submit there returns by the seven day deadline. The court found that neither F.E.C. § 102.166 nor F.E.C. § 102.111, F.E.C. § 102.112 were clear on the time allotted to do a manual recount. There is yet another conflict, between F.E.C. § 102.111 and F.E.C. § 102.112. F.E.C. § 102.111 says, “If the county returns are not received by the Department of State by 5pm on the seventh day following an election, all missing counties shall be ignored…”; while F.E.C. § 102.112 says, “ Returns must be filed by 5 p.m. on the 7th day following the first primary and general election and by 3 p.m. on the 3rd day following the second primary. If the returns are not received by the department by the time specified, such returns may be ignored… (2) The department shall fine each board member $200 for each day such returns are late, the fine to be paid only from the board member's personal funds… ” The F.S.C. decided to use legislative intent to sort this mess out. The first rule they acknowledge is that specific statutes always have precedent over the more general. In the case of F.E.C. § 102.111 versus F.E.C. § 102.112, F.E.C. § 102.112 is more specific because it specifies a deadline and penalties for not meeting the deadline. Secondly the court points out that the recently enacted statute is always used over the older, in this case F.E.C. § 102.111 was from 1951, while F.E.C. § 102.112 was from 2000. A third reason is that is if F.E.C. § 102.111 is enforced, the $200 a day personal penalty for dilatory members of the County Canvassing Board in F.E.C. § 102.112, would never be enforced, since F.E.C. § 102.111 requires the Secretary of State to ignore late returns. Therefore, a fine could never be levied since it would be impossible for any late results to count. According to F.S.C. when two statutes conflict in a way that would nullify even just one part of another, the statute causing the conflict, F.E.C. § 102.111 is void; especially since the legislature would never intend for votes not be counted. The F.S.C. found no statutes to govern a deadline in the event of the need for a manual recount. Since, F.E.C. § 102.112 only dictates that returns “may” be ignored. That being the case it was critical for the court to define the parameters in which Harris may ignore the late returns, caused by manual recounts. The court begins this discussion by listing a long string of cases that have set the precedent that the right to vote is of paramount importance in Florida. With this in mind, the court ruled, that Harris may only ignore the returns, if they violate the candidates ability to contest the election or deny any voter in Florida the right to participate fully in the federal electoral process. The court then cited Roudebush v. Hartke 4 , “…results are not final if a candidate's option to compel a recount is exercised.” Since, these were not the reasons Harris gave in her statement regarding her reason for ignoring the late returns, the court ruled, she must now honor the returns. The court further ruled, that to give time for manual recounts, the deadline for certified returns was extended to November 26 th 2000. Bush v. Palm Beach Canvassing Board 5 was a response to the F.S.C. ruling. The U.S.S.C. granted certiorari to G.W. Bush, on two of the questions submitted to the court. First, did the F.S.C. effectively change the rules after the election, violating the due process clause or Title 3, U.S. Code, Section 5 (3 U.S.C. §5). Secondly, did the court's ruling change the way in which state electors are chosen, which would violate the powers of the state legislature as outlined in Art. II § 1, cl. 2 of the United States Constitution. The U.S.S.C. ruled per curiam that the F.S.C. did not address how they could “circumscribe the legislative power” in a manner consistent with Art. II § 1, cl. 2; nor did the F.S.C. adequately consider the time frame dictated in, 3 U.S.C. § 5, for the resolution of election controversies by, December 9 th . The U.S.S.C. therefore, vacated the F.S.C. decision and remanded it back for clarification. In Florida, November 26 th passed and G.W. Bush was still ahead, consequently Harris certified him the winner, while recounts were still incomplete. The following day Gore sued in Leon County Circuit Court, Gore v. Harris 6 , to contest the certification of the election results pursuant to F.E.C. § 102.168. Judge Sauls made an oral ruling from the bench mere hours after the U.S.S.C. ruling in Bush v. Palm Beach Canvassing Board. Gore was challenging the certification of Bush based on the grounds that he believed there were illegal votes counted and some legal votes were left out of the count entirely. Specifically, he was challenging the certification of the Canvassing Boards of Dade, Palm Beach, and Nassau Counties. Judge Sauls responded, by first citing State ex rel. Millinor v. Smith 7 , establishing any irregularities found in the Florida state election system, that could indicate a need for a recount, must be reviewed by the court; and a legal basis for a recount must be found. Furthermore, Smith v. Tynes 8 established that to challenge election results under F.E.C. § 102.168; Gore needs to prove that the illegal votes counted and the legal votes not included would have certified him the winner. Judge Sauls found “no credible statistical evidence and no other competent substantial evidence… evidence does not establish any illegality, dishonesty, gross negligence, improper influence, coercion, or fraud”, therefore without a reasonable preponderance of evidence to suggest the outcome would be changed by a recount, he saw no reason to challenge the certification. In response to the remand of the U.S.S.C. the F.S.C. issued an opinion on remand Palm Beach County Canvassing Bd. v. Harris , on December 11, 2000, in consolidating three cases relating to this issue, the F.S.C. partially reversed and ordered the Circuit Court of Leon County, to manually count 9,000 ballots in Miami Dade County. The F.S.C. also ordered that the previously hand recounted ballots in Palm Beach and Miami Dade counties to be included in the certification. Furthermore, the court ordered that all “undervotes” be manually counted and added to the certification. “Undervotes” are ballots the machine could not read and consequently have not been counted. The F.S.C. partially reversed on the grounds that Gore had meet the burden of proof that “receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election” pursuant to F.E.C. § 102.168(3)(c) and therefore a recounts could be legally conducted in counties where Gore had met the burden of proof. This caused Bush to issue an emergency application to stop this latest ruling and the recount to the U.S.S.C. On December 9 th the U.S.S.C., with the recount in progress and Gore steadily gaining and only 66 votes behind Bush, the court order a stay on the recount and agreed to hear the case, Bush v. Gore. In the words of Justice Scalia, “counting every legally cast vote can constitute irreparable harm.” As she questioned the legality of the votes cast. Justice Stevens argued in his dissent that, “there is a danger of that a stay may cause irreparable harm to the respondents (Gore)—and, more importantly, the public at large—because the risk that,” “the entry of a stay would be tantamount to a decision on the merits in favor of the applicants.” National Socialist Party of America v. Skokie 9 , He goes on to say, “Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.” Bush was petitioning that the F.S.C. ruling was in conflict with Art. II § 1, cl. 2 of the United States Constitution, by creating “new standards for resolving Presidential election contests.” Bush further argued that the ruling did not coincide with 3 U.S.C. § 5. He also argued that the lack of uniform recounting standards in all of the counties was a violation of the equal protection and due process clauses of the 14 th amendment of the U.S. constitution. The court made its ruling on December 12 th 2000. The court begins by stating that the constitution does not grant its citizens a right to vote for the president; that comes from their state legislatures who have chosen to delegate that power to their citizens. However, the court goes on to say, “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.” What the court is trying to determine is whether the state of Florida's recount met this standard. The standard the F.S.C. instructed the Canvassers to use when recounting ballots was to find the “intent of the voter”. The U.S.S.C. found that this standard did, “…not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right.” The Court argues that this was not a sufficient standard to create a critically necessary uniform system of recounting the ballots. As a result there is evidence that Miami Dade, Palm Beach and Broward counties all used different methods to discern voter intent and in some cases multiple methods were used in the same recount. Due to all of these facts and more, the court found it “… is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a state wide recount…” Consequently, the court ordered a stay on the recount because by current standards they violated the constitutional standard of equal protection. Furthermore, the court believes that it would be nearly impossible for a fair recount to take place in the time remaining, due to the fact there is no state standard already in place for a recount, and there would be numerous legal challenges. The lack of time also means that anymore time spent recounting would violate 3 U.S.C. § 5 since the deadline to comply is today. The court also agreed with Bush that it was not within the F.S.C.'s power to create “new standards for resolving Presidential election contests.” The result of the decision of the order to halt the recount is that Harris is to use the results of the first recount to declare G.W. Bush the winner of Florida's 25 electoral votes. At this point, it also important to note other key conflicts of interest, two of the U.S.S.C. justices that voted with the majority had conflicts of interest in Bush v. Gore. Justice Thomas's wife, Virginia Thomas had just been hired by Bush, to find staff for his administration; logically if Bush did not become president, she would be out of a job. Justice Scalia's also had a conflict, her son Eugene Scalia was a lawyer for Gibson, Dunn & Crutcher, the firm that was representing Bush at the U.S.S.C. Thomas & Scalia both declined to remove themselves from the case (Moore). It is noteworthy, that with regard to the constitutionality of the recounts, the justices voted 7-2. Finding a solution to this situation was the factor that caused the four dissenting opinions. Although, all four dissenters, including the two that agreed there had been a violation of the equal protection clause, stated they did not believe the court should have taken the case. It should have been left up to the F.S.C. to decide as it best saw fit. To this point Justice Breyer refers to the 12 th amendment that grants only congress the power and authority to count and resolve disputes resolving electoral votes, the U.S.S.C. is not authorized to get involved. The four dissenters also believed that the F.S.C. did not commit any substantial legal conflicts with the constitution. Justice Breyer's dissent notes that the F.S.C. might have been reluctant to issue strict standards for the recount due to the Bush v. Palm Beach Canvassing Board decision, concerned anything stricter would violate Article II. Justice Ginsberg went so far as to quote Sumner v. Mata 10 , and state the justices of the F.S.C. did no less then “their mortal best to discharge the oath of office.” The consensus of the dissenters was, if we have to take the case, and the majority believes that there was a substantial violation of the equal protection clause, then the right remedy would have been to remand the case back to the F.S.C. and order new recounts. To the issue of time, Justice Ginsberg notes that congress has until the “sixth day of January” according to the rules of congress in regards to collecting electoral votes; 3 U.S.C. §5 only gives December 12 th as the deadline only if the electoral votes received by congress “had not been … regularly given”. The intent of this paper was to review the legal history of the critical cases involving the 2000 election after the people had cast their ballots and the polls had closed. It is clear that the state of Florida had many problems with their election system going into the 2000 election; namely a punch card voting system that produced infamously ambiguous ballots and contradictory & incomplete election statutes. These problems plus the conflicts of interest of several key figures in this very important event, made it unlikely that any fair outcome was ever going to come out of the mess. However, the dissenting opinions of Ginsberg and Breyer suggest that the U.S.S.C. was out of its jurisdiction in hearing a case that was up to congress or the F.S.C. to settle, according to the 12 th amendment. In addition, despite what the majority opinion claims, there was still time for the U.S.S.C. to follow its own precedent in allowing state supreme courts to interpret their own laws by remanding the case back to the F.S.C. Now recognizing all the ambiguity in Florida election statutes let alone the ballots cast, its now possible to explain how a man who lost the popular vote, became our commander in chief. |