Editing Bush v. Gore (section)

====Remedy====
The Court ruled 5–4 that no constitutionally valid recount could be completed by a December 12 "safe harbor" deadline. The Court asserted that "the Supreme Court of Florida has said that the legislature intended the State's electors to 'participat[e] fully in the federal electoral process,' as provided in {{usc|3|5}}." The Court therefore effectively ended the proposed recount, because "the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. §5." Souter said bluntly, "The 3 U.S.C. §5 issue is not serious."<ref name="souter"/> Breyer's dissent stated, "By halting the manual recount, and thus ensuring that uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect."<ref name="breyer"/>

Four justices (Stevens, Ginsburg, Souter and Breyer) had dissented from the Court's earlier (December 9) decision, by the same five-justice majority, to grant Bush's emergency request to stop the recount and grant ''certiorari''. In their dissents from the Court's December 12 ''per curiam'' opinion, Breyer and Souter acknowledged that the counting up until December 9 had not conformed with equal protection requirements. But Souter and Breyer favored remanding the case to the Florida Supreme Court for the purpose of crafting specific guidelines for how to count disputed ballots, in contrast to the majority's decision to halt the recount altogether.<ref>{{Cite book |last=Toobin |first=Jeffrey |url=https://archive.org/details/nineinsidesecret0000toob_w8r7 |title=The nine : inside the secret world of the Supreme Court |date=2008 |publisher=New York : Anchor Books |page=184|isbn=978-1-4000-9679-4}}</ref> The actual counting had ended with the December 9 ruling, issued three days before any deadline.<ref name="ss"/> The dissenting opinions strongly criticized the majority for involving the Court in state-level affairs. Stevens's dissent (joined by Breyer and Ginsburg) concluded as follows:<ref name="stevens">{{Cite web|url=https://www.law.cornell.edu/supct/html/00-949.ZD.html|title=BUSH v. GORE}}</ref>

{{blockquote|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.}}

The ''per curiam'' opinion did not technically dismiss the case and instead "remanded for further proceedings not inconsistent with this opinion." Gore's attorneys therefore understood that they could fight on and could petition the Florida Supreme Court to repudiate the notion that December 12 was final under Florida law.<ref name="Post">{{Cite book |author-link=The Washington Post |url=https://archive.org/details/deadlockinsidest00wate |title=Deadlock : the inside story of America's closest election |date=2001 |publisher=Waterville, Me. : G.K. Hall |others=Internet Archive |isbn=978-0-7838-9515-4 |pages=230–234}}</ref> Despite this, Gore dropped the case—and conceded the election to Bush shortly afterward—reportedly because he was not optimistic about how the Florida justices would react to further arguments and, as one of his advisers put it, "the best Gore could hope for was a slate of disputed electors".<ref name="Post" /> In addition, Gore campaign chairman [[William M. Daley|Bill Daley]] argued that fighting on was futile because even if the Florida Supreme Court defied the U.S. Supreme Court and ordered a new recount, "the GOP would take them straight back to Washington, where the [U.S.] Supreme Court would repeat: 'You ain't going to count, okay? So quit bothering us.{{' "}}<ref>{{cite news |last1=Von Drehle |first1=David |last2=Slevin |first2=Peter |last3=Balz |first3=Dan |last4=Grimaldi |first4=James V. |date=2001-02-03 |title=Anxious Moments In the Final Stretch |url=https://www.washingtonpost.com/archive/politics/2001/02/03/anxious-moments-in-the-final-stretch/b885749a-d869-4d3d-a44b-a01948e9180b/ |url-status=live |archive-url=https://web.archive.org/web/20170518102119/https://www.washingtonpost.com/web/20170518102119/https://www.washingtonpost.com/archive/politics/2001/02/03/anxious-moments-in-the-final-stretch/b885749a-d869-4d3d-a44b-a01948e9180b/?utm_term=.08ea5e00e702 |archive-date=2017-05-18 |access-date=2017-04-21 |newspaper=The Washington Post}}</ref>

On remand, the Florida Supreme Court issued an opinion on December 22 that did not dispute whether December 12 was the deadline for recounts under state law. This was disputed in a concurring opinion by Florida Supreme Court Justice Leander Shaw, who nevertheless expressed deference to the U.S. Supreme Court's view on this issue and also argued that, in any case, the Florida Supreme Court would (in his opinion) be unable to craft a remedy that would satisfy all the U.S. Supreme Court's equal protection, due process, and other concerns.<ref>''Gore v. Harris'', [http://www.floridasupremecourt.org/decisions/pre2004/ops/sc00-2431-remand.pdf 773 So. 2d 524] {{webarchive |url=https://web.archive.org/web/20080625062307/http://www.floridasupremecourt.org/decisions/pre2004/ops/sc00-2431-remand.pdf|date=June 25, 2008}} (December 22, 2000). Only Florida Supreme Court Justice Leander Shaw, in a concurring opinion, disputed that December 12 was the deadline for recounts under state law. Justice Shaw had joined the dissenting opinion in ''Gore v. Harris'' before the ruling in ''Bush v. Gore''.</ref>