Editing Bush v. Gore (section)

==Issues considered by the Court==
[[File:Theodore Olson.jpg|thumb|upright|[[Theodore Olson]] represented Bush.]]
The Court had to resolve two different questions to fully resolve the case:
*Were the recounts, as they were being conducted, constitutional?
*If the recounts were unconstitutional, what was the appropriate remedy?

Three days earlier, the five-Justice majority had ordered the recount stopped,<ref name="ss">{{cite news|url=http://archives.cnn.com/2000/LAW/12/10/scalia.stevens/|title=Scalia and Stevens clash over recount stay in Bush v. Gore|publisher=CNN|date=December 11, 2000|access-date=April 27, 2010|url-status=dead|archive-url=https://web.archive.org/web/20090508074956/http://archives.cnn.com/2000/LAW/12/10/scalia.stevens/|archive-date=May 8, 2009|df=mdy}}</ref> and the Court had to decide whether to restart it.

===Equal Protection Clause===
Bush argued that recounts in Florida violated the [[Equal Protection Clause]] because Florida did not have a statewide vote recount standard. Each county determined on its own whether a given ballot was valid. Two voters could have marked their ballots in an identical manner, but the ballot in one county would be counted while the ballot in a different county would be rejected, because of the conflicting manual recount standards.<ref name="bushbrief1">{{cite web|url=http://www.presidency.ucsb.edu/docs/florida2000/12-10_bushbrief.pdf|title=Bush v. Gore, Brief for Petitioners|access-date=October 30, 2006|archive-date=November 2, 2006|archive-url=https://web.archive.org/web/20061102103931/http://www.presidency.ucsb.edu/docs/florida2000/12-10_bushbrief.pdf|url-status=dead}} "The Equal Protection Clause prohibits government officials from implementing an electoral system that gives the votes of similarly situated voters different effect based on the happenstance of the county or district in which those voters live." Paragraph 2 in Argument, Part III-A.</ref>

[[File:David Boies by David Shankbone.jpg|thumb|upright|[[David Boies]] represented Gore.]]
Gore argued that there was indeed a statewide standard, the "intent of the voter" standard, and that this standard was sufficient under the Equal Protection Clause.<ref name="gorebrief1">{{cite web|url=http://www.presidency.ucsb.edu/docs/florida2000/12-10_gorebrief.pdf|title=Bush v. Gore, Brief of Respondent|access-date=October 30, 2006|archive-date=November 2, 2006|archive-url=https://web.archive.org/web/20061102103928/http://www.presidency.ucsb.edu/docs/florida2000/12-10_gorebrief.pdf|url-status=dead}} "The court below was quite insistent that the counting of ballots must be governed by a single uniform standard: the intent of the voter must control." Paragraph 3 in Argument, Part III-A.</ref> Furthermore, he argued that the consequence of ruling the Florida recount unconstitutional simply because it treated different voters differently would effectively render ''every'' state election unconstitutional<ref name="gorebrief1b">Id. "...{{nbsp}}if petitioners mean to say that all votes must be tabulated under a fixed and mechanical standard (e.g., the "two-corner chad rule"), their approach would render unconstitutional the laws of States that hinge the meaning of the ballot on the intent of the voter{{nbsp}}..." Paragraph 3 in Argument, Part III-A.</ref> and that each voting mechanism has a different rate of error in counting votes. Voters in a "punch-card" county were more likely to have their votes undercounted than voters in an "optical scanner" county. If Bush prevailed, Gore argued, every state would have to have one statewide method of recording votes to be constitutional. This was the most closely decided issue in the case. The arguments presented by counsel did not extensively address what the Court should do if the Court found an equal protection violation. But Gore did argue briefly that the appropriate remedy would not be to cancel all recounts, but rather to order a proper recount.<ref name="gorebrief3">{{cite web|url=http://www.presidency.ucsb.edu/docs/florida2000/12-10_gorebrief.pdf|title=Bush v. Gore, Brief of Respondent|access-date=October 30, 2006|archive-date=November 2, 2006|archive-url=https://web.archive.org/web/20061102103928/http://www.presidency.ucsb.edu/docs/florida2000/12-10_gorebrief.pdf|url-status=dead}} "[T]he appropriate remedy for either an Equal Protection Clause or Due Process Clause violation would not be to cancel all recounts, but rather to order that the recounts be undertaken under a uniform standard." Footnote 28.</ref>

===Article II===
Bush argued that the Florida Supreme Court's ruling violated [[Article Two of the United States Constitution#Clause 2: Method of choosing electors|Article II, § 1, cl. 2]] of the U.S. Constitution. Essentially, Bush argued that the Florida Supreme Court's interpretation of Florida law was so erroneous that its ruling had the effect of making new law. Since this "new law" had not been enacted by the Florida legislature, it violated Article II. Bush argued that Article II gives the federal judiciary the power to interpret state election law in presidential elections to ensure that the intent of the state legislature is followed.<ref name="bushbrief2">{{cite web|url=http://www.presidency.ucsb.edu/docs/florida2000/12-10_bushbrief.pdf|title=Bush v. Gore, Brief for Petitioners|access-date=October 30, 2006|archive-date=November 2, 2006|archive-url=https://web.archive.org/web/20061102103931/http://www.presidency.ucsb.edu/docs/florida2000/12-10_bushbrief.pdf|url-status=dead}} "By rewriting that statutory scheme—thus arrogating to itself the power to decide the manner in which Florida's electors are chosen—the Florida Supreme Court substituted its judgment for that of the legislature in violation of Article II. Such a usurpation of constitutionally delegated power defies the Framers' plan." Paragraph 2 in Argument, Part I.</ref> Gore argued that Article II presupposes judicial review and interpretation of state statutes, and that the Florida Supreme Court did nothing more than exercise the routine principles of statutory construction to reach its decision.<ref name="gorebrief2">{{cite web|url=http://www.presidency.ucsb.edu/docs/florida2000/12-10_gorebrief.pdf|title=Bush v. Gore, Brief of Respondent|access-date=October 30, 2006|archive-date=November 2, 2006|archive-url=https://web.archive.org/web/20061102103928/http://www.presidency.ucsb.edu/docs/florida2000/12-10_gorebrief.pdf|url-status=dead}} "Even apart from the absurd theory that McPherson requires everything relevant to a state's process for choosing electors to be packed into a specialized presidential electoral code, the very premise of petitioner's argument is fatally flawed because the Florida Legislature re-enacted the contest statute in 1999 against the settled background rule that decisions of circuit courts in contest actions are subject to appellate review." Paragraph 5 in Argument, Part I.</ref>