SCOTUS: How SCOTUS Decided the 2000 Election (Bush v. Gore)

The 2020 election has ended with Joe Biden being declared as the victor and the president-elect, and despite lawsuits and claims from the Trump campaign, no voter fraud has been found. In addition, the Trump campaign has failed at getting the courts (even Trump-appointed judges) to sympathize with his cause and throw out hundreds of thousands of legally cast ballots. He has already lost over 30 lawsuits, and with a Pennsylvania court throwing another of his lawsuits out, he is running out of legal ways to overturn the election. However, in the 2000 presidential election, the Supreme Court actually played a huge part in determining the winner.

The 2000 presidential election between Republican (and eventual victor) George W. Bush and Democrat Al Gore was a very, very close election. Bush won just 271 electoral votes, one more than the 270 required to win the election. The election took place on November 7, 2000.

Many states were very close. Some states like Wisconsin, Iowa, Oregon, and New Mexico (which ended up going to Gore by 355 votes) took a while to be called, but it was widely anticipated that Florida would be the breaking point regardless of how any of the aforementioned states voted. And it was extremely close in Florida.

The controversy in Florida started after national television networks called Florida for Gore based on exit polling data. However, later on, the call was retracted. Then, the state was called for Bush, before being retracted again. When Gore phoned Bush to concede on election night, he had to retract his concession after learning how the race in Florida was so close.

The day after the election, it was announced that Bush led by just 1,784 votes over Gore. Because the margin was so narrow, an automatic machine recount was begun and resulted in Bush’s margin decreasing to just 327 votes on November 10. There were some controversies with the process, but are not important to this case.

After the machine count finished, Gore requested a manual recount based on state law in four Democratic counties: Broward, Miami-Dade, Palm Beach, and Volusia. However, it was required by state law for the secretary of state to certify votes within a week of Election Day (Nov. 14), and three of the four counties (Volusia was the exception) had not finished counting by then.

Gore sued on Nov. 13 to have the vote-certifying deadline extended, while Bush tried to stop the recount. By Nov. 21, the Florida Supreme Court ruled that all results from the recount needed to be included and moved the certification date to Nov. 26. Bush appealed to the U.S. Supreme Court to stop the count, saying that the Florida Supreme Court rewrote election statutes after the vote.

On Dec. 8, the courts had been back-and-forth in Florida regarding the recount. By the time the case made its way to the U.S. Supreme Court, Bush led by just 537 votes. The Supreme Court granted Bush’s petition and scheduled an oral argument for Dec. 11, just one day after the petition was granted.

The Bush team argued that the Florida recounts violated the Equal Protection Clause found in the 14th Amendment because the recount procedures were not standardized, allowing each county to determine whether or not each ballot was valid. Gore’s team argued that if the results weren’t valid in Florida, then results in all states would be unconstitutional because most election rules are left to counties.

In addition, Bush also argued that the Florida Supreme Court’s ruling had the effect of legislating, meaning that in essence, the court had created a new law. Because the new law hadn’t been approved by the state legislature, it would violate Article II of the Constitution, which allowed state legislatures to choose electors in the Electoral College.

The justices released a ruling just one day after oral arguments on Dec. 12. Speed was necessary as the Electoral College would convene soon and a new president would have to be sworn in, in just over a month. In a 7-2 decision, the court ruled that the recount violated the Equal Protection Clause and had to be stopped. The court also separately ruled 5-4 against a remedy proposed by Justices Breyer and Souter, which involved sending the case back to Florida to complete the recount with a standardized statewide method before the electors convened on Dec. 18.

This ruling, in essence, decided the victor of the 2000 presidential election. Because Bush led by 537 ballots, he was declared the winner in Florida and won the election.

In a dissent, Justices Stevens, Breyer, and Ginsburg wrote that “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.”

The case has obviously been extremely controversial, especially near the end of Bush’s term when his approval ratings took a huge dive. A Harvard University law professor wrote that this case was “the single most corrupt decision in Supreme Court history because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants.” Many have argued that there had been a major conflict of interest in the case. For example, Chief Justice Rehnquist, who voted to stop the recount, had expressed interest in retiring under a Republican administration. Previously, many of the conservative justices have been supportive of states’ rights and leaving things to the states, yet, in this decision, that all completely went out the window.

Aside from jurisprudence, the case also drastically diminished the Supreme Court’s credibility among elections, as many now viewed the justices as partisan and resulted in people losing trust in election integrity. The case caused massive public outcry and resulted in questions over the validity of the results.

It is lucky that we didn’t see a similar case happen in the 2020 presidential election. Had that happened among our increasingly polarized society, we could be looking at massive riots and civil unrest over the court’s decision, no matter which way it goes.