From Bush v.

« From Bush v.

Gore One of the most controversial presidential elections in the history of the United States ended with one of the most controversial decisions in the history of the SupremeCourt of the United States.

The Court’s 5 to 4 decision on December 12, 2000, effectively ended the disputed contest between Republican Party candidate George W.

Bushand Democratic Party candidate Al Gore and gave Bush the 270 Electoral College votes needed to win the presidency.

The majority decision, fashioned by the Court’sconservative bloc, is followed by stinging dissents from the other four justices. Bush v Gore GEORGE W.

BUSH, ET AL., PETITIONERS v.

ALBERT GORE, JR., ET AL. ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT [December 12, 2000] PER CURIAM. On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County.

It alsoordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice PresidentAlbert Gore, Jr., and Senator Joseph Lieberman, Democratic Candidates for President and Vice President.

The Supreme Court noted that petitioner, Governor GeorgeW.

Bush, asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand.___ So.

2d, at ___ (slip op., at 4, n.

6).

The court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had notbeen subject to manual tabulation.

The court ordered all manual recounts to begin at once.

Governor Bush and Richard Cheney, Republican Candidates for thePresidency and Vice Presidency, filed an emergency application for a stay of this mandate.

On December 9 we granted the application, treated the application as apetition for a writ of certiorari, and granted certiorari.

Post, p.

___. The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v.

Palm Beach County Canvassing Bd., ante, p.

____ (per curiam) (Bush I ).

On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner, Governor Bush, had received 2,909,135 votes, and respondent, Vice President Gore, had received 2,907,351 votes, a margin of 1,784 for Governor Bush.

Because Governor Bush’smargin of victory was less than “one-half of a percent .

.

.

of the votes cast,” an automatic machine recount was conducted under §102.141(4) of the Florida ElectionCode, the results of which showed Governor Bush still winning the race but by a diminished margin.

Vice President Gore then sought manual recounts in Volusia,Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida’s election protest provisions.

Fla.

Stat.

§102.166 (2000).

A dispute arose concerning thedeadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary).

The Secretary declined to waive the November 14 deadlineimposed by statute.

§§102.111, 102.112.

The Florida Supreme Court, however, set the deadline at November 26.

We granted certiorari and vacated the FloridaSupreme Court’s decision, finding considerable uncertainty as to the grounds on which it was based.

Bush I, ante, at ___–___ (slip op., at 6–7).

On December 11, the Florida Supreme Court issued a decision on remand reinstating that date.

___ So.

2d ___, ___ (slip op.

at 30–31). On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida’s 25 electoralvotes.

On November 27 Vice President Gore, pursuant to Florida’s contest provisions, filed a complaint in Leon County Circuit Court contesting the certification.Fla.

Stat.

§102.168 (2000).

He sought relief pursuant to §102.168(3)(c), which provides that “[r]eceipt of a number of illegal votes or rejection of a number of legalvotes sufficient to change or place in doubt the result of the election” shall be grounds for a contest.

The Circuit Court denied relief, stating that Vice President Gorefailed to meet his burden of proof.

He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court. Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part.

Gore v.

Harris, ___ So.

2d.

____ (2000).

The court held that the Circuit Court had been correct to reject Vice President Gore’s challenge to the results certified in Nassau County and his challenge to the Palm Beach County CanvassingBoard’s determination that 3,300 ballots cast in that county were not, in the statutory phrase, “legal votes.” The Supreme Court held that Vice President Gore had satisfied his burden of proof under §102.168(3)(c) with respect to his challenge to Miami-Dade County’sfailure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President (“undervotes”).

___ So.

2d., at ___ (slip op., at22–23).

Noting the closeness of the election, the Court explained that “[o]n this record, there can be no question that there are legal votes within the 9,000 uncountedvotes sufficient to place the results of this election in doubt.” Id., at ___ (slip op., at 35).

A “legal vote,” as determined by the Supreme Court, is “one in which there is a ‘clear indication of the intent of the voter.’” Id., at ____ (slip op., at 25).

The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to “provide any relief appropriate under such circumstances,” Fla.

Stat.

§102.168(8)(2000), the Supreme Court further held that the Circuit Court could order “the Supervisor of Elections and the Canvassing Boards, as well as the necessary publicofficials, in all counties that have not conducted a manual recount or tabulation of the undervotes .

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.

to do so forthwith, said tabulation to take place in the individualcounties where the ballots are located.” ____ So.

2d, at ____ (slip op., at 38). The Supreme Court also determined that Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legalvotes, respectively, for Vice President Gore.

Id., at ___ (slip op., at 33–34).

Rejecting the Circuit Court’s conclusion that Palm Beach County lacked the authority to include the 215 net votes submitted past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified afterthat date through ongoing manual recounts.

As to Miami-Dade County, the Court concluded that although the 168 votes identified were the result of a partial recount,they were “legal votes [that] could change the outcome of the election.” Id., at (slip op., at 34).

The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount. The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, therebyviolating Art.

II, §1, cl.

2, of the United States Constitution and failing to comply with 3 U.

S.

C.

§5, and whether the use of standardless manual recounts violates theEqual Protection and Due Process Clauses.

With respect to the equal protection question, we find a violation of the Equal Protection Clause. II A The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretoforeunnoticed, phenomenon.

Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, includingdeliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot.

See Ho, More Than 2M BallotsUncounted, AP Online (Nov.

28, 2000); Kelley, Balloting Problems Not Rare But Only In A Very Close Election Do Mistakes And Mismarking Make A Difference,Omaha World-Herald (Nov.

15, 2000).

In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established. »