Tuesday, 17 October 2017

Bush v. Gore: The Role of Law in Government and the United States Presidential Election of 2000

The U.S Presidential Election of 2000 remains one of the most controversial in history, however its significance lay in how it brought to the surface tensions of the role that law should play in the functioning of government. The entire Florida recount incident and the intervention of the U.S Supreme Court via Bush v. Gore has meant that it has remained a popular subject for scholars to explore. This post aims to evaluate the dispute in terms of its impact on legal and constitutional discussion.  A number of themes came to the fore by : including partisanship, state and federal rights and the method of interpreting law. It then hopes to coalesce these different issues to offer reasons why the relationship between law and government remains contested.

Context to the 2000 Election

The most obvious reason why the 2000 Presidential Election remains so controversial is because of the impact the Florida situation had on the selection of the next President of the United States of America. The main contenders in this election were, the Democratic Party nominee Al Gore and the Republican Party nominee George W. Bush. The Presidential Election is often seen as important due to the perceived influence the winner has on domestic and international affairs for the duration of their term. In fact, Herbert M.Kritzer has suggested that knowledge of the U.S Supreme Court increased as a result of the legal disputes of the 2000 election because of the public's general interest in who would become the next President. For example, before Bush v. Gore in Kritzer's research only 16.0 % of people knew the name of the Chief Justice, after it 31% of people knew the name of the Chief Justice. This fits in with Anthony Musson's idea of 'legal consciousness' in Late Medieval England, a person's knowledge of the law grows when they have a vested interest in it or a personal  experience relating to it. It makes sense that due to the intensity of media coverage and the fact that the public are stakeholders in an election, that public knowledge of law increased as part of the Florida disputes.

The Florida disputes were important in deciding the next President of the United States because Al Gore and George W. Bush were short of 270 electoral college votes required to win. Florida with its 25 electoral votes would have been enough for either of them to win the presidency. Although many networks had declared George W. Bush the winner of the State of Florida, as the counting continued his lead dwindled to a point where a mandatory recount was required under state law. This machine recount alongside overseas ballots arriving late reduced Bush's lead in Florida to 930 votes (with 6 million be cast). The result of this was that the Florida Democratic Party filed protests on Gore's behalf in four counties: Broward, Miami-Dade, Palm Beach and Volusia. The choice of counties would be somewhat problematic in later legal proceedings, as they were mainly Democratic leaning. The Canvassing Boards in these counties determined that there had been error enough to affect the election. They however filed a request to be allowed to file late returns as they could not complete the manual recount within the seven-day deadline. The Florida Secretary of State, Katherine Harris decided that she could only waive the deadline if the problem requiring a recount consisted of fraud or an act of God. Harris therefore declared that returns from the four counties would not be permitted and certified George Bush the winner of Florida. The Florida Democratic Party and Gore filed a lawsuit to force the secretary to accept amended returns. The trial court denied their appeal, but the Florida Supreme Court accepted an expedited appeal and ruled that the secretary had abused her discretion by refusing to accept late returns and extended the recounting deadline until November 26.

The decision to take this to the U.S Supreme Court by George W. Bush's lawyers, resulted in a ruling on December 4 that the case should took back to the lower court- the state court until they clarified the basis for their decision. This resulted in another round of rulings, Judge Sauls ruled against Gore on every issue before the Florida Supreme Court reversed them by a 4-3 margin. On the 8 December the Florida Supreme Court ruled again sending the case back to the trial court for a statewide recount of undervotes. The lawyers of Bush filed an emergency application asking the U.S Supreme Court to file a 'stay', temporarily preventing the enforcement of this ruling. The U.S Supreme Court then had to decide whether to allow the recounting process to start again. The court ruled 5-4 that recounting could not be complete by the 'safe harbour' deadline of December 12, usually used to ensure that the upcoming Electoral College proceedings would run smoothly. The length and complexity of these legal proceedings can attest to the number of tensions brought to the surface as a result of Bush v. Gore.

Partisanship and the Interpretation of Law

One of issues that the debate and rulings over the Florida recounts brought to the surface was the idea of the law, specifically the judges in the Supreme Court, being partisan. This was primarily advanced by Democrats who accused the ruling of being ideologically motivated rather than a direct interpretation of the law. This view is somewhat understandable as the majority of the Supreme Court was conservative and had been part of a legal revolution concerning civil rights and state autonomy. The Justices were therefore accused of going against the precedent they had set for themselves by directly interfering in the state law of Florida. This is one of the reasons the decision in Bush v. Gore has sometimes been considered an affront to federalism. Another argument advanced in this favour can be seen in the first set of proceedings in the Supreme Court, via the writ of certiorari the Supreme Court could have rid itself of the case without requiring an explanation. This would have allowed the court to avoid a politically contaminated case which had a large bearing on the Presdiential Election.

Undoubtedly, the decision in Bush vs. Gore was influenced by ideological factors (much like any legal case). However, leaving this as the sole explanation oversimplifies the complex web of legal proceedings and interpretations that preceded the final decision. There was precedent for the Supreme Court becoming involved in issues of paramount public importance, including recent ones such as Clinton v. Jones. The fact that the election was still unresolved six weeks after polling day with it increasingly becoming closer to date on which the Electoral College would nominate the next President, has been used to suggest that the Supreme Court's intervention ended an increasingly worse constitutional crisis. While these views have some validity, they are not wholly satisfactory as alternative explanations for the decision in Bush v. Gore. Instead, by focusing on the relationship between the legal officials and the relevant body of law itself it becomes clear that the decision was based on a range of factors affecting interpretation.

In law, countless theories have been advanced the statutory interpretation and it remains a contested issue. In most courts multiple methods are used depending on the context. One method is to interpret a statute in its 'plain language' where possible. Kramer has suggested that from this point of view the Florida Supreme Court's first decision regarding the Katherine Harris and her discretion with the recount is problematic. Section 102.111 of the Florida statutes says 'all missing counties shall be ignored' if their votes have not been received on the seventh day following the election. Section 102.112, which establishes penalties, also plainly states that returns must be filed on the 7th day following the general election. However, the court identified some ambiguities with this, the command that states that late filings should be ignored in 102.111 contradicts 102.112 which restates the seven-day deadline but the provides that the returns 'may be ignored'. The use of 'may' is problematic as it does not in plain language state that they must be ignored. Another way of interpreting law is to bring an assumption that in the drafting process anything contrary was considered. Therefore, unless the law explicitly makes an interpretation impossible, that interpretation of the law is legal. This method is frequently employed by the U.S Supreme Court, which for example assumes U.S Federal Law only applies on U.S soil despite the absence of any clear language stating this. The purpose of these points is to show that interpretation of law is a two-way process between the justice and the language of statutes, one cannot wholly depend on plain language to make a decision. In the context of the 2000 election this is important as it shows there is a space between the judge and the written law where a series of interpretations affect the decision that is made.

Another example in the Supreme Court as part of Bush v. Gore also shows how such problems could arise especially regarding state and federal law. When Bush first approached the Supreme Court its petition set forward three questions for review, they agreed to hear two. The first was whether the Florida court had changed Florida election law in a way inconsistent with Clause 5 of Title 3 of the United States Code and the second being had the decision made 'below' been made in violation of the requirement of Article II of the U.S Constitution that presidential electors be appointed by each state in the manner as the legislature thereof may be direct. Kramer suggests the first argument was ineffective as it was based on the idea that Florida had to follow law enacted prior to the election day, Bush's lawyers arguing that the process of recounting had not been established before the election day. However, this was faulty as Florida's process for these situations was to follow the judicial process, therefore the series of  legal proceedings to resolve the dispute followed their state law.  The second argument rested on Bush's assumption that that the Constitution invests state legislators with absolute authority to regulate the choosing of electors, the Federal government cannot intervene in this selection.  Kramer argues this violates the founding principles and ideas of the Republic that led America to declare independence- that the electors power rests on popular sovereignty. They only have that power because it is invested in them by the people. This scenario like in the Florida Supreme Court shows the influence interpretation of law that is not explicit can have on a decision. A judge must negotiate with context, different bodies of law, and legal language to come to a conclusion. To simplify the Supreme Court's decision in Bush v.Gore to purely ideological terms is to understate the plurality of processes that take place in making a legal interpretation and decision.

                                                             U.S Supreme Court

Election Laws and the Equal Protection Clause

With the interaction between the individual and the interpretation of law in mind, what issues did the specific circumstances of a general election bring to the fore in Bush v.Gore? One of the biggest at the forefront of debate was the Equal Protection Clause, which states no state shall 'deny to any person within its jurisdiction the equal protection of the laws'. This does not state anything about voter rights as such, but by the 1960s it increasingly became associated with the idea that all votes in a state should be treated equally. In the context of this, it is important to note here that the individual citizen actually does not have a federal constitutional right to vote for the President of the United States unless a state decides statewide election as its means to appoint members to the Electoral College (a citizen does have federal rights for Congressional elections.) The Equal Protection Clause therefore formed a way for the Supreme Court to intervene in elections. If a citizen should have equal protection of the law and a state has elections to appoint its delegates to the Electoral College, the state therefore has a duty to ensure all citizens are treated equally in such a process. The argument being here that in a state with a 'One Person, One Vote' system, the Supreme Court has the right to maintain that all individuals are treated equally under it.

In Bush v. Gore the Equal Protection Clause formed a pivotal part of the Supreme Court's final decision. Their first argument was that the Florida Supreme Court failed to provide specific standards or uniform rules to maintain the intent of the voter. The Supreme Court saw this in several instances, including the fact that Palm Beach County used different counting methods at different stages. They began the process of counting votes by following a 1990 guideline which precluded counting completely attached chads and then switched to a rule that considered a vote to be legal if any light could be seen through a chad. After this they switched back to the 1990 rule only to abandon any pretense of a uniform standard, only for a court to order that the county consider dimpled chads legal. The Supreme Court argued that in this instance it was clear that individual's votes had been being treated differently throughout the counting and recounting processes. This therefore violated the right under the Equal Protection Clause for all citizens to be treat equally under a state's law. The second issue that the Supreme Court saw was that the manual recounts conducted in Broward, Volusia, and Palm Beach counties were not limited to undervotes, but included all ballots. The Supreme Court argued that this would affect the equal treatment of voters in a number of ways. One example being that a citizen whose ballot was not read by a machine, may be accepted in a manual recount because it may be readable to the individual recounting it. This naturally created complications, as in the Florida counting there was a chance that each individual's vote was not being treated equally. The Equal Protection Clause therefore allowed the Supreme Court to argued that the counting and recounting process in Florida was not treating citizens as equals under state law.


The U.S Election of 2000 reveals the way law and government can interact with each other, particular in a period of uncertainty. This article has focused on the interaction between law and government in the Florida dispute, but it does not deny that other factors, such as voter suppression and the infamous 'butterfly' ballots played a role in the process through which the state's electoral votes were assigned. By focusing on the interaction between law and government it has hoped to show how these sometimes seen as distinct bodies interact with each other, both influencing each other. The legal system is never isolated from what it interacts with.  Although, the final decision in Bush v. Gore likely had ideological implications, to use this as the sole explanation is to simplify a long and complex legal process and to not take into account the series of interpretations when a legal official uses a statute. The Equal Protection Clause shows how a central government and justice can become involved in the election process by suggesting it has a duty to ensure all members of a state are treated equally under the state's law. These examples show how different levels of government and law interact with each and show that it can be a contentious issue, as complex decisions such as in the Florida dispute can rarely be made based on the 'plain language' of the law. This essentially allows doubts over the legitimacy of a decision to develop, where the law might otherwise might not be questioned. The U.S Election of 2000 was naturally of such a magnitude and this is why it has remained so controversial.


Balkin, Jack M. "Bush v. Gore and the Boundary between Law and Politics." The Yale Law Journal 110, no. 8 (2001): 1407-58.

Karlan, Pamela S. "Equal Protection: Bush v. Gore and the Making of a Precedent." In The Unfinished Election of 2000, edited by Jack. N. Rakove, 159-201. New York: Basic Books, 2001.

Kramer, Larry D. "The Supreme Court in Politics." In The Unfinished Election of 2000, edited by Jack N. Rakove, 105-59. New York: Basic Books, 2001.

Kritzer, Herbert M. "The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court." Judicature 85 (2001): 32-39.

Musson, Anthony. Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to The Peasants' Revolt. Manchester: Manchester University Press, 2001.

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