Editing Bush v. Gore (section)

===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>