Bush v. Gore
| Bush v. Gore | |
|---|---|
 | |
| Argued December 11, 2000 Decided December 12, 2000 | |
| Full case name | George W. Bush and Richard Cheney, Petitioners v. Albert Gore, Jr., et al. |
| Citations | 531 U.S. 98 (more) 121 S. Ct. 525; 148 L. Ed. 2d 388; 2000 U.S. LEXIS 8430; 69 U.S.L.W. 4029; 2000 Cal. Daily Op. Service 9879; 2000 Colo. J. C.A.R. 6606; 14 Fla. L. Weekly Fed. S 26 |
| Case history | |
| Prior | On writ of certiorari to the Florida Supreme Court |
| Holding | |
| In the circumstances of this case, any manual recount of votes seeking to meet the December 12 “safe harbor” deadline would be unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. | |
| Court membership | |
| |
| Case opinions | |
| Per curiam | |
| Concurrence | Rehnquist, joined by Scalia, Thomas |
| Dissent | Stevens, joined by Ginsburg, Breyer |
| Dissent | Souter, joined by Breyer; Stevens, Ginsburg (all but part C) |
| Dissent | Ginsburg, joined by Stevens; Souter, Breyer (part I) |
| Dissent | Breyer, joined by Stevens, Ginsburg (except part I-A-1); Souter (part I) |
| Laws applied | |
| U.S. Const. art. II, amend. XIV; 3 U.S.C. § 5 | |
Bush v. Gore, 531 U.S. 98 (2000), was a United States Supreme Court case heard on December 11, 2000, which determined the outcome of the 2000 Presidential election. The court ruled 7 - 2 that the attempt to perform selective recounts with differing counting standards in different areas without a single overseer violated equal protection. Then, in a per curium opinion as to which there were 4 of the 9 justices dissenting, the Court held that a ballot recount then being conducted in certain counties in the State of Florida was to be stopped due to the lack of a consistent standard. The per curiam opinion found that there was insufficient time to establish standards for a new recount that would meet Florida's deadline for certifying electors.[1]
The decision stopped the recount that was occurring in Florida and allowed Florida Secretary of State Katherine Harris to certify George W. Bush as the winner of Florida's electoral votes. Florida's 25 electoral votes gave Bush, the Republican candidate, the 271 votes necessary to be elected President by the Electoral College, defeating Democrat Al Gore.
Background
The Presidential election in question took place November 7, 2000. Under the Electoral College system, each state conducts its own popular election for President, and the winner of each state's election receives a number of electoral votes. The winner of a majority of the electoral college is elected President of the United States. In 2000, 270 electoral votes were required for victory.
On November 8, 2000, the Florida Division of Elections reported that Bush had a margin of victory of 1,784 votes.[2] The margin of victory was less than 0.5% of the votes cast, so a statutorily-mandated[3] automatic machine recount was issued. The recount resulted in a much smaller margin of victory for Bush — on November 10, with the machine recount finished in all but one county, Bush's margin of victory had decreased to 327.[4]
Florida's election laws[5] allow a candidate to request a county to conduct a manual recount, and Gore requested manual recounts in four Florida counties: Volusia, Palm Beach, Broward and Miami-Dade. The four counties granted the request and began manual recounts. However, Florida law also required all counties to certify their election returns to the Florida Secretary of State within seven days of the election,[6] and several of the counties conducting manual recounts did not believe they could meet this deadline. On November 14, the statutory deadline, the Florida Circuit Court ruled that the 7-day deadline was mandatory, but that the counties could amend their returns at a later date. The court also ruled that the Secretary, after "considering all attendant facts and circumstances," had discretion to include any late amended returns in the statewide certification.[7] Prior to the 5 p.m. deadline on November 14, Volusia county completed its manual recount and certified its results. At 5 p.m., Florida Secretary of State Katherine Harris announced that she was in receipt of the certified returns from all 67 counties, while Palm Beach, Broward, and Miami-Dade counties were still conducting manual recounts.[8]
Harris issued a set of criteria (see the full criteria) by which she would determine whether to allow late filings, and she required any county seeking to make a late filing to submit to her, by 2 p.m. the following day, a written statement of the facts and circumstances justifying the late filing. Four counties submitted statements, and, after reviewing the submissions, Harris determined that none justified an extension of the filing deadline. She further announced that after she received the certified returns of the overseas absentee ballots from each county, she would certify the results of the presidential election on Saturday, November 18, 2000.[9]
Prior history
On November 16, Gore and Palm Beach filed suit to compel Harris to accept the amended returns, and on November 17 appealed the case to the Florida Supreme Court.[10] On November 17, the Florida Supreme Court issued an injunction preventing Harris from certifying the election, pending a final ruling of the court. On November 21, the Florida Supreme Court, in Palm Beach County Canvassing Board v. Harris (Harris I) ordered Harris to accept the results of any manual recount certified before November 26 at 5 p.m.[9]
On November 22, Bush appealed the Florida Supreme Court's ruling to the United States Supreme Court. On December 4, the Court rendered its decision in Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000). The Court opinion remanded the case back to the Florida Supreme Court for a clarification as to whether the basis for their ruling was the Florida constitution or Florida statutes. The Court was concerned that if the basis of the ruling was the Florida constitution, which was not written by the Florida legislature, the ruling might be unconstitutional under Art. II, § 1, cl. 2 ("Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . .").
While the Florida Supreme Court appeal was pending, Miami-Dade county canceled its manual recount on the ground that it could not complete the recount by November 26.[4] Gore sued to compel Miami-Dade to complete the recount but lost. On November 26, Harris certified the Florida Election. She declared Bush the winner of the Florida election with 2,912,790 votes over Gore, who had 2,912,253—a margin of 537 votes, or about 0.01%.[11] Upon certification officially the electoral college votes were to be given to George Bush (pending settlement of these suits); however statistically neither Bush nor Gore clearly won the state of Florida since by conservative estimates approximately 111,000 votes were not considered, or 1.91% of the 5,825,043 votes officially tallied for Bush and Gore. The implications of a statistical tie gave both parties the political and popular basis of legal challenges in higher courts which normally do not see such cases.
On November 27, Gore filed suit to contest the certified results of the election. The case was heard by Judge N. Sanders Sauls, who denied the requested relief December 4. Gore appealed the case to the Florida Supreme Court. On December 8, the Florida Supreme Court issued its opinion in Gore v. Harris (Harris II). The court ordered a manual recount of only undervotes,[12] to be conducted by the Leon County district court, for ballots from the counties and portion of Miami-Dade county not subject to the previous manual tally. The court further ordered that the results of the November manual recount (which was conducted by the various County canvassing boards) for disputed ballots in three counties and portions of a fourth county be included in the final state tally.[13] This presumably would have included some overvotes. Bush appealed the decision to the U.S. Supreme Court on December 9, and the Court, by a 5-4 vote that would mirror the Court's ultimate ruling in the case, issued an injunction stopping the 64 of 67 county recount pending a final decision.
Case
The oral arguments in Bush v. Gore were brought before the court on December 11 by lawyers representing both sides. Bush was represented before the Court by Theodore B. Olson, a Washington, D.C. lawyer and future Solicitor General. Gore's oral argument was delivered by attorney David Boies. Due to the nature of the case, the U.S. Supreme Court gave its opinion just 16 hours after hearing arguments. The Florida Supreme Court provided the requested clarifications on Bush v. Palm Beach County Canvassing Board while the U.S. Supreme Court was deliberating Bush v. Gore; the two cases were subsequently combined.
Jurisdiction
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had" may be appealed to the Supreme Court under 28 U.S.C. § 1257. In general, the Supreme Court will not hear a case when the state court has remanded the case for further proceedings. There are exceptions to this rule under Cox Broadcasting Corp. v. Cohn, but they are relatively rare. Since the Florida Supreme Court remanded the case, it is slightly surprising that the Supreme Court heard Bush v. Gore at all. Even more controversially, the opinion in Bush v. Gore did not discuss this rule or point to one of the exceptions under Cox Broadcasting.
Relevant law
U.S. Const. art. II, § 1, cl. 2
Article Two defines the executive branch of the federal government; Section 1 specifies the roles of President and Vice President and the method of their election. Clause 2 specified the number of electors per state, and, most relevant to this case,[14] the manner in which they are selected:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors...
The determination to be made was whether the Florida Supreme Court had violated the intent of the Florida Legislature.
3 U.S.C. § 5
Section 5 of Title 3 of the United States Code regulates the "determination of controversy as to appointment of electors"[15] in Presidential elections. Of relevant note[14] to this case was the so-called "safe harbor" provision,[16] which allows states to appoint their electors without interference from Congress if done by a specified deadline:
If any State shall have provided...for its final determination of...the appointment of all or any of the electors of such State...at least six days before the time fixed for the meeting of the electors, such determination...shall be conclusive.[17]
Since the electors were set to meet December 18, the "safe harbor" deadline was December 12, just one day after the case was argued before the Court.
U.S. Const. amend. XIV, § 1
The Fourteenth Amendment consists of the Due Process Clause and Equal Protection Clause among many other provisions of importance after the Civil War. Of importance to this case[18] were only the Due Process Clause, and the Equal Protection Clause which ensures that:
No State shall...deny to any person within its jurisdiction the equal protection of the laws.
The case brought into question whether the standard of counting legal votes in Florida and subsequent recounts met the requirements of this clause.
Issues
The court had to resolve two different questions to fully resolve the case.
- Who wins on the merits of the case: Bush or Gore? In other words, are the recounts as they are currently being conducted, constitutional?[19]
- If the recounts are unconstitutional, what is the remedy?[20]
The court, especially the majority, had trouble with the timing: they thought that there was little chance of the recount being finished by the December 12 safe harbor deadline.
Bush essentially made two distinct claims, one relying on the Equal Protection clause, and the other based on Article II. Gore disputed each of these claims.
Equal Protection claim
Bush argued that the recounts in Florida violated the Equal Protection Clause of the 14th Amendment because there was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. Because each county used its own standard to count each vote, Bush argued, some counties would have more liberal standards than other counties. Therefore, two voters could have marked their ballot in an identical manner, but one voter's ballot in one county would be counted while the other voter's ballot in a different county would be rejected, due to the varying standards.[21]
Gore argued that there was indeed a statewide standard, the "intent of the voter" standard, and that this standard was sufficient under the Equal Protection Clause.[22] Furthermore, Gore argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render every state election unconstitutional[23]. This is because every state uses different methods of recording votes in different counties (e.g., optical scanners, punch-cards, etc.), and that each method has a different rate of error in counting votes. A voter in a "punch-card" county has a greater chance of having his vote undercounted than a voter in an "optical scanner" county. If Bush wins, Gore argued, every state would have to have one statewide method of recording votes to be constitutional.
Article II claim
Bush also argued that the Florida Supreme Court's ruling violated Art. II, § 1, cl. 2 of the U.S. Constitution, which requires each state to appoint electors "in such Manner as the Legislature thereof may direct." Essentially, Bush argued that the Florida Supreme Court's interpretation of Florida law was so erroneous, that their ruling had the effect of making new law. Since this "new law" had not been directed by the Florida legislature, it violated Art. II. Ordinarily, when a state's highest court interprets state law, that interpretation is final, and a federal court can't question it. Bush argued, however, that Art. II gives the federal judiciary the power to interpret state election law for itself to ensure that the intent of the state legislature is followed.[24]
Gore argued that Art. II presupposes judicial review and interpretation of state statutes, and that the Florida Supreme Court did nothing more than exercise the routine principles of statutory construction in order to reach its decision.[25]
Court's decision
The majority ruled 5-4 that the Florida recount was unconstitutional and that no constitutionally-valid recount could be completed by the December 12 deadline, effectively ending the recounts. The opinion stated that the state-wide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter.'"[26]) could not guarantee that each county would count the votes the same way, and held that this violated the Equal Protection Clause of the United States Constitution.
Some of the four dissenters noted some of these issues and others including the principle of fairness, and the conflicting laws which could be interpreted as invalidating the December 12 deadline.[citation needed] It appears the minority would have wished to allow the recount to continue up until the college of electors were mandated to meet on December 18.[citation needed] The majority, however, adopted some of the reasoning of the Florida Supreme Court that the Florida legislature intended to obtain the benefits of federal statute, and said this included the December 12 deadline. Thus, sending the case back to the Florida Supreme Court until December 18, according to the majority could be not appropriate under Florida statute.[27] The actual counting had ended with the December 9th injunction issued by the same 5 justice majority, 3 days before the December 12th deadline.[28]
In brief the breakdown of the decisions were:
- The remedy of ceasing all recounts was approved by 5 to 4. (Kennedy, O'Connor, Rehnquist,[29] Scalia and Thomas in support[1]; Breyer,[30] Ginsburg, Souter[31] and Stevens opposed)
- Seven justices (the 5 Justice majority and Breyer and Souter in dissent) at least agreed that there might be Equal Protection issues in using different standards of counting in different counties.
- The view that the Florida Supreme Court acted contrary to the intent of the Florida legislature was rejected by 6 of the 9 justices. (Rehnquist, Scalia and Thomas in support; Breyer, Ginsburg, Kennedy, O'Connor, Souter and Stevens opposed)
Per curiam opinion
The majority argument here is written as a per curiam opinion. In the opinion the manual recount mandated by the Florida Supreme Court is declared unconstitutional by the majority because there were no standard and uniform means of carrying out the hand recount and therefore violates the equal protection clause.[citation needed] Because of issues with the voting card itself, mainly inconsistent markings and varying states of perforation, the machine was not able to count all votes or in some cases count only one vote on the card disregarding the others.[citation needed] Since the markings on the cards were not all made fully clear, the state made an “intent of the voter” standard for all votes to be counted, but the majority maintained that the equal protection clause is violated by this standard, asserting that without specific standards of discerning the different votes on the voting cards there can be no guarantee of equal protection.[citation needed] The Court said this unequal treatment because although voting cards with a single vote that can not be read by a machine can be read by a human, cards with too many votes or an “over vote” cannot be read by a machine or have their intent be discerned by a human.[citation needed] Further, it was noted that different counties around the state brought together different groups of people, who were said at times to be inexperienced in counting or handling voting ballots, to help with the manual recount. The Court said this again violates the equal protection of the voters as there is no guarantee of uniform recounting teams throughout the state.[citation needed] The majority's per curium opinion noted that although Justices Breyer and Souter in dissent differed on how the matter should be handled and whether the recounting should have been stopped, they did agree that Equal Protections concerns were raised.[citation needed] The per curium opinion of the majority held that a standard, equal, consistent, and constitutional way of recounting the votes would not be found by the December 12th deadline which it insisted should be observed, and so it reversed the Florida Supreme Court decision and remanded the case back to Florida.[citation needed]
Rehnquist's concurrence
Stevens' dissent
Souter's dissent
Ginsberg's dissent
Breyer's dissent
Public response
The case was steeped in controversy as the majority versus minority opinion on the remedy was split along the lines of the more conservative justices voting in favor of Bush and the more liberal justices voting in favor of Gore. Additionally, part of the reason recounts could not be completed was due to various stoppages ordered by the various branches and levels of the judiciary. Opponents argued[32] that it was improper for the court (by the same 5–4 majority) to grant an injunction stopping the recounts pending the outcome of the ruling based on the possibility of "irreparable harm"[33] to Bush by "casting a cloud upon what he claims to be the legitimacy of his election."[33] Injunctions for irreparable harm cannot usually be granted if doing so would do equal or greater harm to another party (in this case, Al Gore). Critics also argued that Court's decision itself was a perversion of the Equal Protection Clause that it claimed to defend[32] and contrary to the political question doctrine.[34]
The dissenting opinions were notable for their unusually harsh treatment of the majority. Justice Ginsberg concluded her dissenting opinion with "I dissent"[35] rather than the traditional "I respectfully dissent" which was widely viewed as a rebuke of the decision. Justice Stevens' dissent scathingly concluded[36]:
- What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
- I respectfully dissent.
This widely quoted excerpt from Justice Stevens' dissent was criticized by the decision's defenders as lacking substantal legal insight and relying instead on rhetoric.[37] The decision itself was widely criticized[38] for the following sentence in the majority opinion:
- Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.[39]
The court's defenders argued that this a reasonable precaution against the possibility that the decision might be read overbroadly,[40] arguing that in the short time available it would not be appropriate to attempt to craft language spelling out in greater detail how to apply the holding to other cases. Critics, however, interpreted the sentence as stating that the case did not set precedent in any way and could not be used to justify any future court decision, and some suggested that this was evidence the majority realized its holding was untenable.[41] It was seen by many as a departure from the stare decisis principle.
See also
Notes and references
- ^ a b "Bush v. Gore, US Supreme Court Opinion, Per curiam".
- ^ "Palm Beach Country Canvassing Board vs. Katherine Harris, etc., et al" (PDF).
{{cite web}}: Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) See http://www.presidency.ucsb.edu/florida2000.php for other documents related to the 2000 election dispute. - ^ See Fla. Stat. § 102.141(4). "The 2000 Florida Statutes, Title IX, Chapter 102, Section 141".
- ^ a b "Election 2000 Timeline". PG Publishing Co., Inc. December 17, 2000.
{{cite web}}: Check date values in:|date=(help); Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ See Fla. Stat. § 102.166. "The 2000 Florida Statutes, Title IX, Chapter 102, Section 166".
- ^ See Fla. Stat. § 102.112. "The 2000 Florida Statutes, Title IX, Chapter 102, Section 112".
- ^ "Leon County Judge Rules on Certification" (PDF).
{{cite web}}: Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ "Text: Florida Recount Results".
{{cite web}}: Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ a b "Florida Supreme Court Opinion on Florida Presidential Election" (PDF).
{{cite web}}: Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ The way that the case arrived in the Florida Supreme court was actually more complicated. Gore initially filed in the Florida Circuit Court and lost. He then appealed to the First District Court of Appeals, which certified the matter to the Florida Supreme Court under a provision of the Florida constitution. See Fla. Const. art. V, § 3(b)(5); Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220, 1227 (2000).
- ^ "Text: Florida Secretary of State Declares Bush Winner".
{{cite web}}: Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ An undervote is a vote that was intended to be cast, but was not counted because the machine could not read any vote on the ballot. This is in contrast to an overvote, which was not counted because the voter cast a vote for more than one candidate. See also spoilt vote.
- ^ "Gore v. Harris, Florida Supreme Court Opinion" (PDF).
{{cite web}}: Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ a b "Bush v. Gore, US Supreme Court Opinion".
The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5 ...
Last paragraph in Part I. - ^ "US CODE: Title 3,5. Determination of controversy as to appointment of electors". The quote is the title of Section 5, Title 3.
- ^ Stone, Geoffrey R. "Equal Protection? The Supreme Court's Decision in Bush v. Gore".
- ^ "US CODE: Title 3,5. Determination of controversy as to appointment of electors".
- ^ "Bush v. Gore, US Supreme Court Opinion".
The petition presents the following questions: ... and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.
Last paragraph in Part I - ^ Id. "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy." Last paragraph in Part II
- ^ Id. "The only disagreement is as to the remedy." Last paragraph in Part II
- ^ "Bush v. Gore, Brief for Petitioners" (PDF). "The Equal Protection Clause prohibits government officials from implementing an electoral system that gives the votes of similarly situated voters different effect based on the happenstance of the county or district in which those voters live." Paragraph 2 in Argument, Part III-A
- ^ "Bush v. Gore, Brief of Respondent" (PDF). "The court below was quite insistent that the counting of ballots must be governed by a single uniform standard: the intent of the voter must control." Paragraph 3 in Argument, Part III-A
- ^ Id. "...if petitioners mean to say that all votes must be tabulated under a fixed and mechanical standard (e.g., the “two-corner chad rule”), their approach would render unconstitutional the laws of States that hinge the meaning of the ballot on the intent of the voter..." Paragraph 3 in Argument, Part III-A
- ^ "Bush v. Gore, Brief for Petitioners" (PDF). "By rewriting that statutory scheme—thus arrogating to itself the power to decide the manner in which Florida’s electors are chosen—the Florida Supreme Court substituted its judgment for that of the legislature in violation of Article II. Such a usurpation of constitutionally delegated power defies the Framers’ plan." Paragraph 2 in Argument, Part I
- ^ "Bush v. Gore, Brief of Respondent" (PDF). "Even apart from the absurd theory that McPherson requires everything relevant to a state’s process for choosing electors to be packed into a specialized presidential electoral code, the very premise of petitioner’s argument is fatally flawed because the Florida Legislature re-enacted the contest statute in 1999 against the settled background rule that decisions of circuit courts in contest actions are subject to appellate review." Paragraph 5 in Argument, Part I
- ^ "Bush v. Gore, US Supreme Court Opinion". Id. 5th paragraph in Part I
- ^ Id. 4th & 5th paragraphs from end
- ^ "Scalia and Stevens clash over recount stay in Bush v. Gore".
- ^ "Bush v. Gore, Concurrence, Rehnquist".
- ^ "Bush v. Gore, Dissent, Breyer".
- ^ "Bush v. Gore, Dissent, Souter".
- ^ a b Raskin, Jamin (March 2001). "Bandits in Black Robes". Washington Monthly.
But in Bush v. Gore, the Rehnquist majority did not even ask, much less explain, how Bush was personally injured by the hypothetical possibility that anonymous third-party citizens might have their ballots counted differently in Florida's presidential election.
{{cite news}}: Unknown parameter|accessmonthday=ignored (help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ a b "Bush v. Gore, On Application for Stay, Majority Opinion" (PDF). 2nd last paragraph of Scalia's concurrence.
- ^ Tribe, Laurence H., "The Unbearable Wrongness of Bush v. Gore" . George Mason Law & Economics Research Paper No. 03-33; Harvard Law School, Public Law Working Paper No. 72 Available at SSRN: http://ssrn.com/abstract=431080
- ^ "Bush v. Gore, Dissent, Ginsberg".
- ^ "Bush v. Gore, Dissent, Stevens".
- ^ Lund, Nelson. "The Unbearable Rightness of Bush v. Gore" (PDF).
The best known passage, which comes from Justice Stevens' dissent, consists of a rhetorical flourish rather than analysis
- ^ Fliter, John. "Review of The Rehnquist Court: Judicial Activism on the Right".
- ^ "Bush v. Gore, US Supreme Court Opinion". (6th paragraph from end of Part II-B)
- ^ Lund, Nelson. "The Unbearable Rightness of Bush v. Gore" (PDF).
... it's important to remember that overly broad holdings can be worse than those that are too narrow. Broad holdings may effectively decide future cases that are factually dissimilar in ways that should be legally distinguished.
- ^ Spillenger, Clyde. "Supreme court fails to argue recount ruling". UCLA Today.
This observation is the very antithesis of the rule of law.
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Criteria for late filing
The actual criteria issued by the Secretary:
Facts & Circumstances Warranting Waiver of Statutory Deadline
- Where there is proof of voter fraud that affects the outcome of the election. In re Protest of Election Returns, 707 So. 2d 1170, 1172 (Fla. 3d DCA 1998); Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 509 (Fla. 4th DCA 1992).
- Where there has been a substantial noncompliance with statutory election procedures, and reasonable doubt exists as to whether the certified results expressed the will of the voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998).
- Where election officials have made a good faith effort to comply with the statutory deadline and are prevented from timely complying with their duties as a result of an act of God, or extenuating circumstances beyond their control, by way of example, an electrical power outage, a malfunction of the transmitting equipment, or a mechanical malfunction of the voting tabulation system. McDermott v. Harris, No. 00-2700 (Fla. 2d Cir. Ct. Nov. 14, 2000).
Facts & Circumstances Not Warranting Waiver of Statutory Deadline
- Where there has been substantial compliance with statutory election procedures and the contested results relate to voter error, and there exists a reasonable expectation that the certified results expressed the will of the voters. Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (Fla. 1998).
- Where there exists a ballot that may be confusing because of the alignment and location of the candidates’ names, but is otherwise in substantial compliance with the election laws. Nelson v. Robinson, 301 So. 2d 508, 511 (Fla. 2d DCA 1974) (“[M]ere confusion does not amount to an impediment to the voters’ free choice if reasonable time and study will sort it out.”).
- Where there is nothing “more than a mere possibility that the outcome of the election would have been effected.” Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508, 510 (Fla. 4th DCA 1992).
— Katherine Harris, Letter from Katherine Harris to Palm Beach County Canvassing Board (Nov. 15, 2000).
See also Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1220, 1226 n.5 (2000).[1]
External links
- Faulty Fourteenth Amendment Jurisprudence Doomed Al Gore Chances in 2000
- Mark Levine: "The 'Gore Exception'"
- Peter Berkowitz & Benjamin Wittes: "The Professors and Bush v. Gore"
- Peter Berkowitz & Benjamin Wittes: "The Lawfulness of the Election Decision"
- Vincent Bugliosi: "None Dare Call It Treason"
- Adam Cohen: "Has Bush v. Gore Become the Case That Must Not Be Named?", Editorial Observer, The New York Times, August 15, 2006.