[EM] Bush v. Gore, 531 U.S. ___ (2000)

Narins, Josh josh.narins at lehman.com
Wed Mar 13 14:54:54 PST 2002

> On November 8, 2000, the day following
> the Presidential election, the Florida Division of Elections reported
> that petitioner, Governor Bush, had received 2,909,135 votes, and
> respondent, Vice President Gore, had received 2,907,351 votes, a margin
> of 1,784 for Governor Bush. 

Interestingly enough, although the Florida DofE reported this, it was not

On election day, Al Gore got 202 more votes than George Bush at the polls.

The difference was all made up in the absentee ballots.

Florida Division of Elections (massively annoying format, can be excel
imported, no totals, just county totals, 67 counties)

Harvard study used by longest NY Times story ever on ballots in Florida:

-----Original Message-----
From: DEMOREP1 at aol.com [mailto:DEMOREP1 at aol.com]
Sent: Wednesday, March 13, 2002 5:12 PM
To: election-methods-list at eskimo.com
Subject: [EM] Bush v. Gore, 531 U.S. ___ (2000)

In view of some recent comments --- comments from the Supremes about the
Equal Protection Clause are below.

The lower courts are in a state of chaos pending more EPC opinions from the
Supremes in the voting rights area.

Good luck to anybody attacking IRV or for that matter plurality in the



No. 00-949
[December 12, 2000]


On December 8, 2000, the Supreme Court of Florida ordered that the
Circuit Court of Leon County tabulate by hand 9,000 ballots in
Miami-Dade County. It also ordered the inclusion in the certified vote
totals of 215 votes identified in Palm Beach County and 168 votes
identified in Miami-Dade County for Vice President Albert Gore, Jr., and
Senator Joseph Lieberman, Democratic Candidates for President and Vice
President. The Supreme Court noted that petitioner, Governor George W.
Bush asserted that the net gain for Vice President Gore in Palm Beach
County was 176 votes, and directed the Circuit Court to resolve that
dispute on remand. ___ So. 2d, at ___ (slip op., at 4, n. 6). The court
further held that relief would require manual recounts in all Florida
counties where so-called "undervotes" had not been subject to manual
tabulation. The court ordered all manual recounts to begin at once.
Governor Bush and Richard Cheney, Republican Candidates for the
Presidency and Vice Presidency, filed an emergency application for a
stay of this mandate. On December 9, we granted the application, treated
the application as a petition for a writ of certiorari, and granted
certiorari. Post, p. ___.
The proceedings leading to the present controversy are discussed in some
detail in our opinion in Bush v. Palm Beach County Canvassing Bd., ante,
p. ____ (per curiam) (Bush I). On November 8, 2000, the day following
the Presidential election, the Florida Division of Elections reported
that petitioner, Governor Bush, had received 2,909,135 votes, and
respondent, Vice President Gore, had received 2,907,351 votes, a margin
of 1,784 for Governor Bush. Because Governor Bush's margin of victory
was less than "one-half of a percent . . . of the votes cast," an
automatic machine recount was conducted under &sect102.141(4) of the
election code, the results of which showed Governor Bush still winning
the race but by a diminished margin. Vice President Gore then sought ma
nual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties,
pursuant to Florida's election protest provisions. Fla. Stat.
&sect102.166 (2000). A dispute arose concerning the deadline for local
county canvassing boards to submit their returns to the Secretary of
State (Secretary). The Secretary declined to waive the November 14
deadline imposed by statute. &sect&sect102.111, 102.112. The Florida
Supreme Court, however, set the deadline at November 26. We granted
certiorari and vacated the Florida Supreme Court's decision, finding
considerable uncertainty as to the grounds on which it was based. Bush
I, ante, at ___-___ (slip. op., at 6-7). On December 11, the Florida
Supreme Court issued a decision on remand reinstating that date. ___ So.
2d ___, ___ (slip op. at 30-31).

On November 26, the Florida Elections Canvassing Commission certified
the results of the election and declared Governor Bush the winner of
Florida's 25 electoral votes. On November 27, Vice President Gore,
pursuant to Florida's contest provisions, filed a complaint in Leon
County Circuit Court contesting the certification. Fla. Stat.
&sect102.168 (2000). He sought relief pursuant to &sect102.168(3)(c),
which provides that "[r]eceipt of a number of illegal votes or rejection
of a number of legal votes sufficient to change or place in doubt the
result of the election"shall be grounds for a contest. The Circuit Court
denied relief, stating that Vice President Gore failed to meet his
burden of proof. He appealed to the First District Court of Appeal,
which certified the matter to the Florida Supreme Court.

Accepting jurisdiction, the Florida Supreme Court affirmed in part and
reversed in part. Gore v. Harris, ___ So. 2d. ____ (2000). The court
held that the Circuit Court had been correct to reject Vice President
Gore's challenge to the results certified in Nassau County and his
challenge to the Palm Beach County Canvassing Board's determination that
3,300 ballots cast in that county were not, in the statutory phrase,
"legal votes."

The Supreme Court held that Vice President Gore had satisfied his burden
of proof under &sect102.168(3)(c) with respect to his challenge to
Miami-Dade County's failure to tabulate, by manual count, 9,000 ballots
on which the machines had failed to detect a vote for President
("undervotes"). ___ So. 2d., at ___ (slip. op., at 22-23). Noting the
closeness of the election, the Court explained that "[o]n this record,
there can be no question that there are legal votes within the 9,000
uncounted votes sufficient to place the results of this election in
doubt." Id., at ___ (slip. op., at 35). A "legal vote," as determined by
the Supreme Court, is "one in which there is a 'clear indication of the
intent of the voter. '" Id., at ____ (slip op., at 25). The court theref
ore ordered a hand recount of the 9,000 ballots in Miami-Dade County.
Observing that the contest provisions vest broad discretion in the
circuit judge to "provide any relief appropriate under such
circumstances," Fla. Stat. &sect102.168(8) (2000), the Supreme Court
further held that the Circuit Court could order "the Supervisor of
Elections and the Canvassing Boards, as well as the necessary public
officials, in all counties that have not conducted a manual recount or
tabulation of the undervotes . . . to do so forthwith, said tabulation
to take place in the individual counties where the ballots are located."
____ So. 2d, at ____ (slip. op., at 38).

The Supreme Court also determined that both Palm Beach County and
Miami-Dade County, in their earlier manual recounts, had identified a
net gain of 215 and 168 legal votes for Vice President Gore. Id., at ___
(slip. op., at 33-34). Rejecting the Circuit Court's conclusion that
Palm Beach County lacked the authority to include the 215 net votes
submitted past the November 26 deadline, the Supreme Court explained
that the deadline was not intended to exclude votes identified after
that date through ongoing manual recounts. As to Miami-Dade County, the
Court concluded that although the 168 votes identified were the result
of a partial recount, they were "legal votes [that] could change the
outcome of the election." Id., at (slip op., at 34). The Supreme Court
therefore directed the Circuit Court to include those totals in the
certified results, subject to resolution of the actual vote total from
the Miami-Dade partial recount.

The petition presents the following questions: whether the Florida
Supreme Court established new standards for resolving Presidential
election contests, thereby violating Art. II, &sect1, cl. 2, of the
United States Constitution and failing to comply with 3 U. S. C. &sect5,
and whether the use of standardless manual recounts violates the Equal
Protection and Due Process Clauses. With respect to the equal protection
question, we find a violation of the Equal Protection Clause.


The closeness of this election, and the multitude of legal challenges
which have followed in its wake, have brought into sharp focus a common,
if heretofore unnoticed, phenomenon. Nationwide statistics reveal that
an estimated 2% of ballots cast do not register a vote for President for
whatever reason, including deliberately choosing no candidate at all or
some voter error, such as voting for two candidates or insufficiently
marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online
(Nov. 28, 2000); Kelley, Balloting Problems Not Rare But Only In A Very
Close Election Do Mistakes And Mismarking Make A Difference, Omaha
World-Herald (Nov. 15, 2000). In certifying election results, the votes
eligible for inclusion in the certification are the votes meeting the
properly established legal requirements.
This case has shown that punch card balloting machines can produce an
unfortunate number of ballots which are not punched in a clean, complete
way by the voter. After the current counting, it is likely legislative
bodies nationwide will examine ways to improve the mechanisms and
machinery for voting.

The individual citizen has no federal constitutional right to vote for
electors for the President of the United States unless and until the
state legislature chooses a statewide election as the means to implement
its power to appoint members of the Electoral College. U. S. Const.,
Art. II, &sect1. This is the source for the statement in McPherson v.
Blacker, 146 U. S. 1, 35 (1892), 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. Id., at 28-33. History has now favored the voter, and
in each of the several States the citizens themselves vote for
Presidential electors. When the state legislature vests the right to
vote for President in its people, the right to vote as the legislature
has prescribed is fundamental; and one source of its fundamental nature
lies in the equal weight accorded to each vote and the equal dignity
owed to each voter. The State, of course, after granting the franchise
in the special context of Article II, can take back the power to appoint
electors. See id., at 35 ("[T]here is no doubt of the right of the
legislature to resume the power at any time, for it can neither be taken
away nor abdicated") (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).
The right to vote is protected in more than the initial allocation of
the franchise. Equal protection applies as well to the manner of its
exercise. Having once granted the right to vote on equal terms, the
State may not, by later arbitrary and disparate treatment, value one
person's vote over that of another. See, e.g., Harper v. Virginia Bd. of
Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted
to the electorate, lines may not be drawn which are inconsistent with
the Equal Protection Clause of the Fourteenth Amendment"). It must be
remembered that "the right of suffrage can be denied by a debasement or
dilution of the weight of a citizen's vote just as effectively as by
wholly prohibiting the free exercise of the franchise." Reynolds v. Sims
, 377 U. S. 533, 555 (1964).

There is no difference between the two sides of the present controversy
on these basic propositions. Respondents say that the very purpose of
vindicating the right to vote justifies the recount procedures now at
issue. The question before us, however, is whether the recount
procedures the Florida Supreme Court has adopted are consistent with its
obligation to avoid arbitrary and disparate treatment of the members of
its electorate.

Much of the controversy seems to revolve around ballot cards designed to
be perforated by a stylus but which, either through error or deliberate
omission, have not been perforated with sufficient precision for a
machine to count them. In some cases a piece of the card -- a chad -- is
hanging, say by two corners. In other cases there is no separation at
all, just an indentation.

The Florida Supreme Court has ordered that the intent of the voter be
discerned from such ballots. For purposes of resolving the equal
protection challenge, it is not necessary to decide whether the Florida
Supreme Court had the authority under the legislative scheme for
resolving election disputes to define what a legal vote is and to
mandate a manual recount implementing that definition. The recount
mechanisms implemented in response to the decisions of the Florida
Supreme Court do not satisfy the minimum requirement for non-arbitrary
treatment of voters necessary to secure the fundamental right. Florida's
basic command for the count of legally cast votes is to consider the
"intent of the voter." Gore v. Harris, ___ So. 2d, at ___ (slip op., at
39). This is unobjectionable as an abstract proposition and a starting
principle. The problem inheres in the absence of specific standards to
ensure its equal application. The formulation of uniform rules to
determine intent based on these recurring circumstances is practicable
and, we conclude, necessary.

The law does not refrain from searching for the intent of the actor in a
multitude of circumstances; and in some cases the general command to
ascertain intent is not susceptible to much further refinement. In this
instance, however, the question is not whether to believe a witness but
how to interpret the marks or holes or scratches on an inanimate object,
a piece of cardboard or paper which, it is said, might not have
registered as a vote during the machine count. The factfinder confronts
a thing, not a person. The search for intent can be confined by specific
rules designed to ensure uniform treatment.

The want of those rules here has led to unequal evaluation of ballots in
various respects. See Gore v. Harris, ___ So. 2d, at ___ (slip op., at
51) (Wells, J., dissenting) ("Should a county canvassing board count or
not count a 'dimpled chad' where the voter is able to successfully
dislodge the chad in every other contest on that ballot? Here, the
county canvassing boards disagree"). As seems to have been acknowledged
at oral argument, the standards for accepting or rejecting contested
ballots might vary not only from county to county but indeed within a
single county from one recount team to another.

The record provides some examples. A monitor in Miami-Dade County
testified at trial that he observed that three members of the county
canvassing board applied different standards in defining a legal vote. 3
Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that
at least one county changed its evaluative standards during the counting
process. Palm Beach County, for example, began the process with a 1990
guideline which precluded counting completely attached chads, switched
to a rule that considered a vote to be legal if any light could be seen
through a chad, changed back to the 1990 rule, and then abandoned any
pretense of a per se rule, only to have a court order that the county
consider dimpled chads legal. This is not a process with sufficient
guarantees of equal treatment.

An early case in our one person, one vote jurisprudence arose when a
State accorded arbitrary and disparate treatment to voters in its
different counties. Gray v. Sanders, 372 U. S. 368 (1963). The Court
found a constitutional violation. We relied on these principles in the
context of the Presidential selection process in Moore v. Ogilvie, 394
U. S. 814 (1969), where we invalidated a county-based procedure that
diluted the influence of citizens in larger counties in the nominating
process. There we observed that "[t]he idea that one group can be
granted greater voting strength than another is hostile to the one man,
one vote basis of our representative government." Id., at 819.

The State Supreme Court ratified this uneven treatment. It mandated that
the recount totals from two counties, Miami-Dade and Palm Beach, be
included in the certified total. The court also appeared to hold sub
silentio that the recount totals from Broward County, which were not
completed until after the original November 14 certification by the
Secretary of State, were to be considered part of the new certified vote
totals even though the county certification was not contested by Vice
President Gore. Yet each of the counties used varying standards to
determine what was a legal vote. Broward County used a more forgiving
standard than Palm Beach County, and uncovered almost three times as
many new votes, a result markedly disproportionate to the difference in
population between the counties.

In addition, the recounts in these three counties were not limited to
so-called undervotes but extended to all of the ballots. The distinction
has real consequences. A manual recount of all ballots identifies not
only those ballots which show no vote but also those which contain more
than one, the so-called overvotes. Neither category will be counted by
the machine. This is not a trivial concern. At oral argument,
respondents estimated there are as many as 110,000 overvotes statewide.
As a result, the citizen whose ballot was not read by a machine because
he failed to vote for a candidate in a way readable by a machine may
still have his vote counted in a manual recount; on the other hand, the
citizen who marks two candidates in a way discernable by the machine
 will not have the same opportunity to have his vote count, even if a
manual examination of the ballot would reveal the requisite indicia of
intent. Furthermore, the citizen who marks two candidates, only one of
which is discernable by the machine, will have his vote counted even
though it should have been read as an invalid ballot. The State Supreme
Court's inclusion of vote counts based on these variant standards
exemplifies concerns with the remedial processes that were under way.

That brings the analysis to yet a further equal protection problem. The
votes certified by the court included a partial total from one county,
Miami-Dade. The Florida Supreme Court's decision thus gives no assurance
that the recounts included in a final certification must be complete.
Indeed, it is respondent's submission that it would be consistent with
the rules of the recount procedures to include whatever partial counts
are done by the time of final certification, and we interpret the
Florida Supreme Court's decision to permit this. See ____ So. 2d, at
____, n. 21 (slip op., at 37, n. 21) (noting "practical difficulties"
may control outcome of election, but certifying partial Miami-Dade total
nonetheless). This accommodation no doubt results from the truncated
contest period established by the Florida Supreme Court in Bush I, at
respondents'own urging. The press of time does not diminish the
constitutional concern. A desire for speed is not a general excuse for
ignoring equal protection guarantees.

In addition to these difficulties the actual process by which the votes
were to be counted under the Florida Supreme Court's decision raises
further concerns. That order did not specify who would recount the
ballots. The county canvassing boards were forced to pull together ad
hoc teams comprised of judges from various Circuits who had no previous
training in handling and interpreting ballots. Furthermore, while others
were permitted to observe, they were prohibited from objecting during
the recount.

The recount process, in its features here described, is inconsistent
with the minimum procedures necessary to protect the fundamental right
of each voter in the special instance of a statewide recount under the
authority of a single state judicial officer. Our consideration is
limited to the present circumstances, for the problem of equal
protection in election processes generally presents many complexities.

The question before the Court is not whether local entities, in the
exercise of their expertise, may develop different systems for
implementing elections. Instead, we are presented with a situation where
a state court with the power to assure uniformity has ordered a
statewide recount with minimal procedural safeguards. When a court
orders a statewide remedy, there must be at least some assurance that
the rudimentary requirements of equal treatment and fundamental fairness
are satisfied.

Given the Court's assessment that the recount process underway was
probably being conducted in an unconstitutional manner, the Court stayed
the order directing the recount so it could hear this case and render an
expedited decision. The contest provision, as it was mandated by the
State Supreme Court, is not well calculated to sustain the confidence
that all citizens must have in the outcome of elections. The State has
not shown that its procedures include the necessary safeguards. The
problem, for instance, of the estimated 110,000 overvotes has not been
addressed, although Chief Justice Wells called attention to the concern
in his dissenting opinion. See ____ So. 2d, at ____, n. 26 (slip op., at
45, n. 26).

Upon due consideration of the difficulties identified to this point, it
is obvious that the recount cannot be conducted in compliance with the
requirements of equal protection and due process without substantial
additional work. It would require not only the adoption (after
opportunity for argument) of adequate statewide standards for
determining what is a legal vote, and practicable procedures to
implement them, but also orderly judicial review of any disputed matters
that might arise. In addition, the Secretary of State has advised that
the recount of only a portion of the ballots requires that the vote
tabulation equipment be used to screen out undervotes, a function for
which the machines were not designed. If a recount of overvotes were
also required, perhaps even a second screening would be necessary. Use
of the equipment for this purpose, and any new software developed for
it, would have to be evaluated for accuracy by the Secretary of State,
as required by Fla. Stat. &sect101.015 (2000).

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 3 U. S. C. &sect5. ___ So. 2d, at ___ (slip op.
at 27); see also Palm Beach Canvassing Bd. v. Harris, 2000 WL 1725434,
*13 (Fla. 2000). That statute, in turn, requires that any controversy or
contest that is designed to lead to a conclusive selection of electors
be completed by December 12. That date is upon us, and there is no
recount procedure in place under the State Supreme Court's order that
comports with minimal constitutional standards. Because it is evident
that any recount seeking to meet the December 12 date will be
unconstitutional for the reasons we have discussed, we reverse the
judgment of the Supreme Court of Florida ordering a recount to proceed.

Seven Justices of the Court agree that there are constitutional problems
with the recount ordered by the Florida Supreme Court that demand a
remedy. See post, at 6 (SOUTER, J., dissenting); post, at 2, 15 (BREYER,
J., dissenting). The only disagreement is as to the remedy. Because the
Florida Supreme Court has said that the Florida Legislature intended to
obtain the safe-harbor benefits of 3 U. S. C. &sect5, JUSTICE BREYER's
proposed remedy -- remanding to the Florida Supreme Court for its
ordering of a constitutionally proper contest until December
18-contemplates action in violation of the Florida election code, and
hence could not be part of an "appropriate"order authorized by Fla.
Stat. &sect102.168(8) (2000).

* * *
None are more conscious of the vital limits on judicial authority than
are the members of this Court, and none stand more in admiration of the
Constitution's design to leave the selection of the President to the
people, through their legislatures, and to the political sphere. When
contending parties invoke the process of the courts, however, it becomes
our unsought responsibility to resolve the federal and constitutional
issues the judicial system has been forced to confront.
The judgment of the Supreme Court of Florida is reversed, and the case
is remanded for further proceedings not inconsistent with this opinion.

Pursuant to this Court's Rule 45.2, the Clerk is directed to issue the
mandate in this case forthwith.

It is so ordered.

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