Editing Bush v. Gore (section)

==Decision==
In brief, the breakdown of the decision was:
*Five justices agreed that there was an Equal Protection Clause violation in using differing standards of determining a valid vote in different counties, causing an "unequal evaluation of ballots in various respects".<ref name="oyez2">{{Cite web |title=Bush v. Gore |url=https://www.oyez.org/cases/2000/00-949 |url-status=live |archive-url=https://web.archive.org/web/20240304151926/https://www.oyez.org/cases/2000/00-949 |archive-date=2024-03-04 |access-date=2024-11-01 |website=Oyez |language=en |quote="Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by 'later arbitrary and disparate treatment,' the per curiam opinion held that the Florida Supreme Court's scheme for recounting ballots was unconstitutional."}}</ref> The ''per curiam'' opinion (representing the views of Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas) specifically cited that:
** Palm Beach County changed standards for counting dimpled chads several times during the counting process;
** Broward County used less restrictive standards than Palm Beach County;
** Miami-Dade County's recount of rejected ballots [[Brooks Brothers riot|did not include all precincts]];
** The Florida Supreme Court did not specify who would recount the ballots.
*The ''per curiam'' opinion also identified an inconsistency with the fact that the Florida statewide recount of rejected ballots was limited to undervotes. The opinion implied that a constitutionally valid recount would include Florida's overvotes, not just its undervotes. The opinion expressed concern that the limited scope of Florida's recount would mean that, unlike some undervotes found to be reclaimable, valid votes among the overvotes would not be reclaimed.{{efn|group=a|Unknown at the time, but observed in the later media recounts, there was a significant number of such valid overvotes found among the rejected ballots in optical scan counties, which largely favored Gore.}} Furthermore, if a machine had incorrectly read an overvote as a valid vote for one of two marked candidates instead of rejecting it, Florida would wrongly count what should be an invalid vote.{{efn|group=a|The opinion does not suggest a practical method for searching for and manually identifying such ballots among the thousands of legally cast and counted ballots with which they would be mixed.<ref name="Lund">{{cite journal|journal=Cardozo Law Review|first=Nelson Robert|last=Lund|url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=267874|title=The Unbearable Rightness of Bush v. Gore|volume=23|number=4|page=1242|date=March 2002|publisher=George Mason Law & Economics Research Paper No. 01-17|doi=10.2139/ssrn.267874|ssrn=267874}}</ref><ref>Nelson Lund in this 2002 article suggests that one type of ballot being referred to here could have "both a clean [machine readable] hole for one candidate and a dimpled or indented chad for another candidate[,]" which, according to Lund, were quite common. Lund cites the ''Gore v. Harris'' trial testimony of Judge Charles Burton (Palm Beach County elections official), who explained that for "one of the patterns that we saw quite frequently", a clear punch and a nearby dimple, the canvassing board "conclude[d] that the clear intent of the voter" was a vote for the candidate that "they actually punched out, ... a fully punched chad demonstrated that that was their intent."</ref><ref>See Trial Transcript, ''Gore v. Harris'', No. 00-2808 (Leon Cty. Jud. Cir. Dec. 2, 2000), at 262–264 (testimony of Judge Charles Burton) [transcript available at https://web.archive.org/web/20020118072636/http://election2000.stanford.edu/].</ref><ref>{{Cite journal|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1158&context=articles/|last=Friedman|first=Richard D.|title=Trying to Make Peace with Bush v. Gore (Symposium: Bush v. Gore Issue)|journal=Florida State University Law Review|volume=29|number=2|year=2001|page=825|quote=[T]here may have been some voters whose ballots were improperly counted because they punched two holes but the machine only read one, and those ballots would not be recounted. Well, perhaps, but there could not have been very many of these ballots, and to discover them would require reviewing every punch-card ballot in the state; neither candidate was complaining about these, and neither was asking for a full recount. The Florida Supreme Court should have been entitled to restrict the recount to categories of ballots that appeared most likely to present problems. (cite omitted)}}</ref>}}
*Breyer and Souter disagreed with the majority, pointing out that Bush presented no evidence in any court of uncounted legal overvotes and did not see any problem in Florida's decision to limit its recount to undervotes.<ref name="breyer"/><ref name="souter"/><ref name="opinion">{{cite web|url=https://www.law.cornell.edu/supct/html/00-949.ZPC.html|title=Bush v. Gore|publisher=[[Legal Information Institute]]|date=December 12, 2000|access-date=2019-04-21}}</ref> The dissents of Breyer and Souter were full dissents. Unlike the five-justice majority, each identified an equal protection concern that did not rise to the level of a constitutional violation, and proposed a remedy different from the majority's remedy. A [[dissenting opinion]] does not create precedent nor does it become a part of case law. Under the American legal system, dissenting court opinions are not considered valid holdings and are not included in the court's ruling. Nothing in Breyer's or Souter's dissents can be construed as part of any decision by the Court.
*In dissenting, Ginsburg wrote that, for better or worse, disparities were a part of all elections and that if an equal-protection argument applied in any way, it surely applied more to black voters.<ref name="Vanity"/>
*Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts in keeping with 3 U.S.C. §5 (Rehnquist,<ref name="rehn">{{Cite web|url=https://www.law.cornell.edu/supct/html/00-949.ZC.html|title=BUSH v. GORE}}</ref> [[Sandra Day O'Connor|O'Connor]], Scalia, Kennedy, and Thomas in support; Stevens, Souter, Ginsburg, and Breyer opposed). Souter, joined by Breyer, Ginsburg and Stevens, wrote, "But no State is required to conform to §5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of §5 is simply loss of what has been  called its 'safe harbor.' And even that determination is to be made, if made anywhere, in the Congress."<ref name="souter"/> Souter and Breyer would have remanded the case to the Florida Supreme Court to permit that court to establish uniform standards of what constituted a legal vote for a manual recount of all rejected ballots using those standards.<ref name="breyer">{{Cite web|url=https://www.law.cornell.edu/supct/html/00-949.ZD1.html|title=BUSH v. GORE}}</ref><ref name="souter">{{Cite web|url=https://www.law.cornell.edu/supct/html/00-949.ZD3.html|title=BUSH v. GORE}}</ref> 
*Three justices (Rehnquist, Scalia, and Thomas) argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. Four (Stevens, Souter, Ginsburg, and Breyer) specifically disputed this in their dissenting opinions, and the remaining two (O'Connor and Kennedy) declined to join Rehnquist's concurrence on the matter.<ref name="rehn"/>
{{notelist}}

===Equal Protection Clause===
In its ''per curiam'' opinion, the Supreme Court ruled that the Florida Supreme Court decision calling for a statewide recount violated the Equal Protection Clause of the Fourteenth Amendment. Kennedy has since been identified as the opinion's primary author. In addition to writing the opinion, he included Souter, Breyer and Stevens as agreeing that there were equal protection "problems" without consulting them. Stevens demanded his name be removed from the draft opinion, which Kennedy agreed to only after Stevens pulled his name from Breyer's dissent. Breyer also objected in private. ''[[The New York Times]]'' reported that Kennedy's opinion "later caused some confusion by its reference to 'seven justices of the court' who 'agree that there are constitutional problems with the recount.' That was true, but it was also beside the point."<ref>{{cite news |last=Greenhouse |first=Linda |date=20 Feb 2001 |title=Bush v Gore: a special report |url=https://www.nytimes.com/2001/02/20/us/bush-v-gore-a-special-report-election-case-a-test-and-a-trauma-for-justices.html |url-status=live |archive-url=https://web.archive.org/web/20240414025934/https://www.nytimes.com/2001/02/20/us/bush-v-gore-a-special-report-election-case-a-test-and-a-trauma-for-justices.html |archive-date=2024-04-14 |work=The New York Times |page=A1}}</ref> Later interviews by ''[[Vanity Fair (magazine)|Vanity Fair]]'' indicated that Breyer and Souter were trying to appeal to Kennedy to join them on the remedy, rather than agreeing that an equal protection violation had occurred.<ref name="Vanity"/> Jack Balkin, writing in ''Yale Law Journal'', considered this a cheap trick to construct the illusion of a larger majority, likening it to "saying that two doctors agree that a patient is sick, but one wants to use leeches, and the other wants to prescribe antibiotics".<ref name="auto"/>

The Court held that the Equal Protection Clause guarantees to individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment". Even if the recount was fair in theory, it was unfair in practice. The record, as weighed by the Florida Supreme Court, suggested that different standards were seemingly applied to the recount from ballot to ballot, precinct to precinct, and county to county, even when identical types of ballots and machines were used.<ref>Justices Breyer and Souter stated:{{blockquote|It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads).}}</ref>

According to the Court, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter{{' "}})<ref name="zpc">{{cite web |url=http://straylight.law.cornell.edu/supct/html/00-949.ZPC.html |title=Bush v. Gore, US Supreme Court Opinion}} Id. 5th paragraph in Part I.</ref> could not guarantee that each county would count the votes in a constitutionally permissible fashion. The Court stated that the ''per curiam'' opinion's applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." But the Court did not identify those complexities, nor did it explain (or apparently consider) why the absence of a constitutionally acceptable standard for counting votes, which was the basis for the Court's ruling, would not have invalidated the entire presidential election in Florida.<ref>{{cite web |last1=Gershman |first1=Bennet L. |date=February 18, 2016 |title=Justice Scalia's Faux Originalism |url=https://www.huffpost.com/entry/justice-scalias-faux-orig_b_9265726 |url-status=live |archive-url=https://web.archive.org/web/20220416065837/https://www.huffpost.com/entry/justice-scalias-faux-orig_b_9265726 |archive-date=2022-04-16 |access-date=April 15, 2020 |website=HuffPost}}</ref> Critics later observed that the court had denied ''certiorari'' on equal protection grounds when Bush first sought Supreme Court review.<ref name="Vanity" /> Law clerks who worked for Kennedy and O'Connor at the time later said they believed the justices settled on equal protection as grounds for their decision, rather than Article II, because they thought it would seem fairer.<ref name="Vanity" />

====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>

===Article II===
Rehnquist's [[concurring opinion]], joined by Scalia and Thomas, began by emphasizing that this was an unusual case in which the Constitution requires federal courts to assess whether a state supreme court has properly interpreted the will of the state legislature. Usually, federal courts do not make that type of assessment, and indeed the ''per curiam'' opinion in this case did not do so. After addressing this aspect of the case, Rehnquist examined and agreed with arguments that the dissenting justices of the Florida Supreme Court had made.<ref name="rehnquist">{{Cite web|url=https://www.law.cornell.edu/supct/html/00-949.ZC.html|title=BUSH v. GORE concurrence}}</ref> Rehnquist also mentioned that he, Scalia, and Thomas joined the Supreme Court's ''per curiam'' opinion and agreed with the legal analysis presented there. The ruling also says that "the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. ... The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors."<ref>{{cite book |last1=Epstein |first1=Lee |url=https://books.google.com/books?id=dnENEQAAQBAJ |title=Constitutional Law for a Changing America: Rights, Liberties, and Justice |last2=McGuire |first2=Kevin T. |last3=Walker |first3=Thomas G. |date=<!-- August 23, -->2024 |publisher=CQ Press |isbn=978-1-0719-0168-7 |page=[https://books.google.com/books?id=dnENEQAAQBAJ&pg=PA1108 1108] |access-date=January 12, 2025}}</ref>