Pclear presidential candidate winner did not emerge on November 7, 2000, in the United States election between George W. Bush and Al Gore. Gore had won the popular vote, and news stations had projected Gore to be the winner in Florida. Ultimately, the final vote for the future president relied on the state of Florida. Gore called Bush to concede the election, but after the narrowing margin, Gore told Bush to retract the concession.
The Florida Supreme Court ordered a manual recount of all ballots, including ones that did not indicate a vote for a president, for the election, inter alia. Governor George Bush and his running mate, Richard Chaney, filed for review in the U.S. Supreme Court and sought a petition for a stay in the Florida Supreme Court’s decision. The Supreme Court granted, reviewed and issued the stay.
The question posed in this case is whether the use of standardless manual recounts of votes violates the Equal Protection Clause of the Fourteenth Amendment. The per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if a recount is in theory fair, it was unfair in practice. An individual citizen has no constitutional right to vote for electors for President, unless and until the state legislature chooses a statewide election to appoint members of the Electoral College (Mitchell 2004). Ensuring equality of votes goes beyond making the right to vote available. The dispute over counting votes was driven by the process of coting with a ballot machine, but in some cases, the card was either left hanging or not completely perforated. In issuing its ruling for a manual recount, the Florida Supreme Court directed that those ballots are to be examined to find out the intent of the voter. The Florida Supreme Court’s decision that a recount must have been done was reversed, the case is remanded for further consideration by Florida legislature of standards governing any recount.
Gore opted for manual recounts in four counties with complaints of voting machine malfunction. Florida law required that the election results be certified by the Secretary of State, Katherine Harris, within seven days of the election. Three out of the four counties were unable to meet this deadline, so on November 14th, a Florida circuit court ruled that while Secretary Harris must respect the deadline, she could legally amend the certified results, at her own discretion, to reflect any late returns from the outstanding counties. The three outstanding counties, Miami-Dade, Palm Beach, and Broward, sent an explanation for the delay. Harris had announced that she would entertain late returns only if it was justified in writing by 2 p.m. the following day, November 15. Secretary Harris, however, rejected their explanations and announced that the final Florida vote count would be announced Saturday, November 18.
On November 16, Vice President Gore and Palm Beach County filed for an injunction against Secretary Harris to prevent her from certifying the election until the recounts had been concluded. The Florida Supreme Court issued the injunction on November 17, and on November 21 ruled that Secretary Harris has to give the counties until November 26 to finish the recounts. On November 26, with 537 votes separating Bush and Gore, Secretary Harris certified the election for Bush. Gore sued Harris, alleging that the certified results were illegitimate; the recount process wasn’t complete. After a local court dismissed the suit, Gore appealed to the Florida Supreme Court, which ruled on December 8 that all Florida ballots cast but not counted as "undervotes" must be manually recounted, if they had not been already. On December 9, the application was granted, and treated as a petition for a writ of certiorari and granted certiorari.
The Equal Protection clause guarantees that individual ballots cannot be devalued “later arbitrary and disparate treatment.” The per curiam opinion held 7-2 in that the recounting of the ballots was unconstitutional; fair in theory, unfair in practice. Due to other procedural difficulties, the court held 5-4, that no constitutional recount could be produced in the time remaining. Rehnquist, in concurrence with Scalia and Thomas, argues that the recount was unconstitutional because the Florida Supreme Court’s decision made new election law – which only the state legislature can do. In examining the statutory scheme enacted by the Florida legislature for choosing electors, it is evident that the legislature intended to take advantage of the safe harbor provision in 3 U.S.C. §5. Given all these factors, the remedy issued by the Florida Supreme Court violates the statutory framework in place on election day and the federal safe harbor provision (Seidman 2001).
Breyer and Souter agreed with the per curiam holding but dissented, believing that a recount could have been fashioned. Breyer stated that Bush presents no evidence that a manual recount of votes would identify additional legal ballots, and the Equal Protection Clause concerns in the Florida Supreme Court failed to issue uniform standards for governing the recount. However, despite these concerns, the majority’s decision to stop the recount is unjustifiable. Souter believed the Florida legislature did not have time to announce new standards governing a recount properly. The case should be remanded for additional consideration of new measures by the Florida State Supreme Court, as this would produce the desired result in a more efficient time frame. Time is insubstantial when constitutional rights are at stake.
Ginsburg and Stevens argued that for reasons of federalism, the Florida Supreme Court's decision should be respected. The Florida decision was fundamentally right; the Constitution requires that every vote is counted. Ginsburg stated the Florida Supreme Court’s interpretation of its own electoral law is entitled to deference. Additionally, Bush has not presented a substantial Equal Protection Clause claim. There is no evidence suggesting the new recount adopted by the Florida court would yield a result any less fair or precise than the certification that preceded the recount. Stevens argued that the standard of recounting ballots is not so vague and subjective as to amount to a constitutional violation of the Equal Protection Clause. The majority’s decision to terminate the recount risks disenfranchising an unknown number of voters whose ballots revealed their intent but were still rejected by the balloting machines. Dissenting justices insisted the constitutional need to protect each vote superseded the state's timeline for determining the results of an election. The dissenting minority advocated that while the manual recount process was flawed, it should’ve been allowed to proceed.
The attitudinal model of judicial decision making assumes decisions are made by a judge based on the case facts against his sincere attitudes and values. The judge’s ideological views and policy preferences have more of an effect on his decision making than the law. For example, the decisions of two liberal judges will follow a similar pattern – there will be a significant difference in behavior and rulings of liberals and conservatives. A judge’s attitudes are shaped by his experiences and environment. To determine the values of a given judge and his preferences, the ruling on certain matters can be predicted. Burbank and Farhang (2017) states the model uses the phrase “the myth of legality” to describe the view that “cases are decided by application of legal rules formulated and applied through a politically and philosophically neutral process of legal reasoning.”
Bush v. Gore is a great example of the attitudinal model; the four most liberal justices of the Supreme Court supported Gore’s position, while the five most conservative justices ruled in Bush's favor. “While Bush v. Gore may appear to be the most egregious example of judicial policymaking, we suggest it is only because of its recency. Our history is replete with similar examples, although perhaps none as shamelessly partisan” (Segal and Spaeth 2002). The justices' political views clearly impacted their decisions. The attitudinal judicial decision-making model is particularly likely in strongly politically-charged cases and issues. Although it is believed that attitudes play a role in all judicial levels, as Segal (2006) states “it should be at its highest at the U.S. Supreme Court level.” The attitudinal model has a considerable amount of weight in political science because scholars have shown hundreds of empirical studies that prove the accuracy.
Bush v. Gore reveals lessons about judicial independence and the Supreme Court that are sometimes overlooked in conventional discussions. These lessons include: the decision to grant independence to a policy-making institution relative to preferred political agendas from electoral pressure, independent courts often being supported by other power-holders to act as a forum which political questions can be channeled, institutional independence is never complete and nominally independent decision-makers need to assess the political context before choosing risky courses of action, and there is no relationship between the degree of a judge’s decision making autonomy and the chance he/she will engage in good faith interpretations of the law.
The Court’s involvement in the 2000 election revealed an instance of political bias. Political bias is revealed routinely in the ideological patterns of the justices’ decision-making. As Gillman (2003) states “the Court’s involvement was extraordinary because it demonstrated the Court’s fortuitous ability to shape which candidates and parties would control the White House and the Senate, thus making it less likely that political opponents would be able to interfere with its policy-making.” The desire of insulating political agendas is not the only reason of interest in establishing or deferring authority of autonomous policy-making institutions. Delegation is sometimes also a mechanism by which officeholders attempt to achieve political benefits by channeling contentious and potentially unpopular issues into the hands of decision makers (Voigt and Salzberger, 2002). The advantages of channeling are obvious when Congress sets up institutions which are designed to facilitate decision-making on issues that raise political problems. The justices in the Bush v. Gore majority may have revealed their own attachments to a political agenda. However, the unwillingness of other power-holders to defend their own decision-making prerogatives suggests that they believed that there were perceived political advantages to having the Supreme Court take control of this dispute.
Supreme Court justices are privileged to have an institutional setting that insulates them from direct political supervision or manipulation. Segal (1997) states “structural features make it reasonable to assume that justices normally decide cases based mostly on their personal policy preferences (or views of the law) rather than other political motivations or influences, such as direct constituency pressures or the demands of party leaders.” The main point is that Supreme Court independence is a function, not merely of formal structural protections, but also of historically contingent political alignments and the tendency of the justices to assess the strategic context within which they are operating. Without attention to these contextual and strategic variables, a lack of pressure, interference, or retribution might be explained as a purpose of well-functioning institutional barriers rather than the relation between these structural features and the constraints or opportunities generated by the background political climate.
Judges who enjoy life tenure have to worry less about whether voting their preferences will cause a political firestorm, although even life-tenured judges must pay attention to political opposition to their decisions (Baum 2013). Of the judges involved in Bush v. Gore, the ones whose behavior appeared the most partisan, and least motivated by good faith understandings of the law, were the ones who enjoyed the most extreme insulation from conventional political pressure. The five conservatives in the Bush v. Gore majority were the only judges involved in this election dispute whose decisions “across a variety of legal issues were consistent with their political preferences and arguably inconsistent with their pre-election views on issues such as the meaning of the equal protection clause and the appropriateness of having federal courts second-guess state court interpretations of state law” (Gillman 2003).
The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. The case is famous for its impact on one of the closest elections in U.S. history. This case stressed the importance of having a set uniform procedure of hand-counting ballots in the event of a recount. The details of Bush v. Gore have been and will be argued over for a long time, however, the decision was made, and history was made with it.