by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. Chemerinsky is author of The Case Against the Supreme Court (Viking, 2014).
Bush v. Gore was clearly wrong when it was decided 15 years ago and a decade and a half make it look only worse. The decision is the epitome of conservative judicial activism, which in this instance had the Supreme Court for the first time in history deciding the outcome of a presidential election.
The presidential election of Tuesday, November 7, 2000, was one of the closest in American history. By early Wednesday morning it was clear that the Democratic candidate, Vice President Al Gore, won the national popular vote but that the outcome of the electoral vote was uncertain. The presidency turned on Florida and its 25 electoral votes.
On Sunday night, November 26, the Florida Elections Canvassing Commission certified the election results: Bush was determined to be the winner of Florida by 537 votes and thus the winner of Florida’s 25 electoral votes. On Monday, November 27, Gore filed suit in Florida under the Florida law providing for “contests” of election results.
On Monday, December 4, the Florida trial court ruled against Gore on the grounds that Gore failed to prove a “reasonable probability” that the election would have turned out differently if not for problems in counting ballots.
The Florida Supreme Court granted review and on Friday afternoon, December 8, the Florida Supreme Court, by a 4-to-3 decision, reversed the trial court. The Florida Supreme Court ruled that the trial court had used the wrong standard in insisting that Gore demonstrate a “reasonable probability” that the election would have been decided differently. The Florida Supreme Court said that the statute requires only a showing of “[r]eceipt 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.”
The Florida Supreme Court ordered the counting of all uncounted votes. On Friday night, December 8, a Florida trial court judge, Terry Lewis, ordered that the counting of the uncounted votes commence the next morning and that it be completed by Sunday afternoon, December 10, at 2:00 p.m. The judge said that he would resolve any disputes.
On Saturday morning, the Supreme Court granted Bush’s petition for certiorari and stayed the counting of the uncounted ballots. On Monday, December 11, the United States Supreme Court held oral arguments. On Tuesday night, December 12, at approximately 10:00 p.m., Eastern standard time, the Court released its opinion in Bush v. Gore. In a per curium opinion joined by five of the Justices, the Supreme Court ruled 5-4 that counting the uncounted ballots without standards denies equal protection and that counting could not continue because Florida wished to choose its electors by the December 12 “safe harbor” date set by federal law. The per curium opinion was joined by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas. Additionally, Chief Justice Rehnquist wrote an opinion concurring in the judgment, which was joined by Justices Scalia and Thomas, arguing that the Florida Supreme Court had impermissibly changed Florida’s election law in a manner that violates federal law. Each of the other four Justices – Stevens, Souter, Ginsburg, and Breyer -- wrote dissenting opinions.