Private: Thinking Back on Bush v. Gore

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.

In hindsight, it is clear that the Court lacked jurisdiction to hear and decide the equal protection question because it was not ripe for review. The Court’s holding was that equal protection would be violated if similar ballots were treated differently. But there was no way to know if this occurred until the ballots were actually counted. Judge Lewis said that he would resolve any disputes over uncounted ballots. If he used the same standard for all ballots, which one would assume that he would, then there would be no inconsistencies in their treatment.

There was an even more basic ripeness problem: if the ballots were counted and Bush was ahead, he would have had no injury and no basis for the lawsuit. Until the ballots were counted the case was simply not ripe for review and the Supreme Court lacked authority under Article III to decide it.

The Court’s clearest mistake – and it was evident on December 12, 2000 – was in ending the counting in Florida rather than sending the case back to the Florida courts to decide how to proceed. As Justice Stevens noted in his dissent, if the lack of standards for counting was the problem, the solution was to send the case back to Florida for the creation of standards and subsequent counting. The per curium opinion rejected this by saying that the Florida Supreme Court had indicated, as a matter of Florida law, that the state wished to have its counting done by December 12 to gain the benefits of the safe harbor provision for choosing delegates to the electoral college.

But Florida law was ambiguous on this because a situation like this never had arisen.  Questions of state law always are to be left to the state courts. The Supreme Court should have remanded the case to the Florida Supreme Court to decide as a matter of Florida law whether to halt the counting or continue to count the uncounted votes. It is inexcusable that the Court ultimately decided the case on state law grounds that should have been left to the state courts. The perverse irony is that the justices in the majority in Bush v. Gore also were the majority in many 5-4 decisions expanding the protection of states’ rights and federalism.

Bush v. Gore is a powerful reminder that Supreme Court decisions are a product of who is on the bench and their ideology and views.  This, of course, is true in all areas of constitutional law, but rarely has it been as obvious – or as important – as in Bush v. Gore.  This is an especially significant lesson as we enter the election year, 2016. The most important issue in the coming presidential election should be who will fill as many as four vacancies that are likely to occur on the Supreme Court in the next term or two of the presidency.

Supreme Court