Bush v. Gore had little impact on law

December 13, 2010


— The passions that swirled around Bush v. Gore, the Supreme Court case that ended 10 years ago today, dissipated quickly. And remarkably little damage was done by the institutional collisions that resulted when control of the nation’s supreme political office turned on 537 votes out of 5,963,110 cast in Florida.

Many controversies concerned whether particular votes could be said to have been cast properly. Chads are those bits of paper that, when a ballot is properly cast by puncturing spots next to candidates’ names, are separated from the ballot. In Florida, there were “dimpled” chads that were merely dented, and “hanging” chads not separated from the ballots. Furthermore, there were undervotes (ballots with no vote for president) and overvotes (votes for two presidential candidates) and ill-designed (by a Democrat) butterfly ballots.

The post-election lunacy could have been substantially mitigated by adhering to a principle of personal responsibility: Voters who cast ballots incompetently are not entitled to have election officials toil to divine these voters’ intentions. Al Gore got certain Democratic-dominated canvassing boards to turn their recounts into unfettered speculations and hunches about the intentions of voters who submitted inscrutable ballots. Before this, Palm Beach County had forbidden counting dimpled chads.

Once Gore initiated the intervention of courts, the U.S. Constitution was implicated. On Nov. 7, Gore finished second in Florida’s Election Day vote count. A few days later, after the state’s mandatory (in close elections) machine recount, he again finished second. Florida law required counties to certify their results in seven days, by Nov. 14.

But three of the four (of Florida’s 67) counties — each heavily Democratic — where Gore was contesting the count were not finished deciphering voters’ intentions. So Gore’s lawyers persuaded the easily persuadable state Supreme Court — with a majority of Democratic appointees — to rewrite the law. It turned the seven-day period into 19 days.

Many liberals underwent instant conversions of convenience: They became champions of states’ rights when the U.S. Supreme Court (seven of nine Republican appointees) unanimously overturned that extension. But the U.S. court reminded Florida’s court to respect the real “states’ rights” at issue — the rights of state legislatures: The Constitution gives them plenary power to establish procedures for presidential elections.

Florida’s Supreme Court felt emancipated from law. When rewriting the law to extend the deadline for certification of results by the four counties, the court said: “The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle.” But under representative government, the will of the people is expressed in statutes. Adherence to statutes — even adherence stigmatized as “hyper-technical” — is known as the rule of law.

In the end, seven of the nine U.S. Supreme Court justices (and three of the seven Florida justices) agreed on this: The standardless recount ordered by the Florida court — different rules in different counties regarding different kinds of chads and different ways of discerning voter intent — violated the U.S. Constitution’s guarantee of equal protection of the laws.

Two of the seven U.S. justices favored ordering Florida’s court to devise standards that could pass constitutional muster, and allowing the recount to continue for six more days. Five justices, believing that the recounting had become irredeemably lawless, ended it.

Once Gore summoned judicial intervention, and Florida’s Supreme Court began to revise state election law, it probably was inevitable that possession of the nation’s highest political office was going to be determined by a state’s highest court, or the nation’s. The U.S. Supreme Court was duty-bound not to defer to a state court that was patently misinterpreting — disregarding, actually — state law pertaining to a matter assigned by the U.S. Constitution to state legislatures.

Suppose that, after Nov. 7, Florida’s Legislature had made by statute the sort of changes — new deadlines for recounting and certifying votes, selective recounts, etc. — that Florida’s Supreme Court made by fiat. This would obviously have violated the federal law that requires presidential elections to be conducted by rules in place prior to Election Day.

Hard cases, it is said, make bad law. But this difficult case seems to have made little discernible law. That is good because it means no comparable electoral crisis has occurred. What the Supreme Court majority said on Dec. 12, 2000 — “our consideration is limited to the present circumstances” — has proved true. And may remain true, at least until the next time possession of the presidency turns on less than one ten-thousandths of a state’s vote.

— George Will is a columnist for Washington Post Writers Group. georgewill@washpost.com


Orwell 4 years, 3 months ago

Jeffrey Toobin has a better summary of the case and its effect:

"This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor."

Corey Williams 4 years, 3 months ago

With so little going on in the world today, it's good to know that old man Will can find something to write about. And for god's sake, don't let him catch you wearing jeans.

uncleandyt 4 years, 3 months ago

BushCo spent many families' fortunes. George Jr. was/is a puppet, a frontman, a bad actor. Turn off the radio, if you can.

4 years, 3 months ago

A disaster who looks more and more like Bush every day. I mean now he's even throwing his own base under the bus for Bush's tax cuts. If he was a clever fellow, he would have negotiated a similar cut and put his own name on it. But now he is cursed to spend the rest of his term whining about Bush's policies while pursuing them in Bush's name.

beatrice 4 years, 3 months ago

Tom, you sure are one angry guy. Still upset over your claim that "Whites have no power now"? I'm guessing you are. Really, really upset. grrrrrrr

just_another_bozo_on_this_bus 4 years, 3 months ago

" Voters who cast ballots incompetently are not entitled to have election officials toil to divine these voters’ intentions."

Yea, we know, poor stupid old people have no right to vote. And poor people are only poor because they are lazy and stupid.

God has supplied such factual nuggets as these that allow Republicans to govern while being so (willfully) ignorant of any other facts they may find inconvenient to conducting (and winning) in class warfare (even though it means screwing most of their own electoral base.)

4 years, 3 months ago

You should put that last sentence on a t-shirt or something.

jafs 4 years, 3 months ago

The obvious solution to this sort of mess would be to design ballots that are easy to complete and tabulate.

We should have a nationally consistent method of collecting and processing votes that works well, and doesn't require dealing with "hanging chads", etc.

You'd think with our advanced technology, this should be easy to do.

storm 4 years, 3 months ago

Heck, every coffee shop that uses punch cards recognizes hanging or dimpled chads! Jeb Bush, Katherine Harris, & company were all crooks, no doubt about it. The only good is that election staff will be mindful of dumping machines which are too full of chads.

just_another_bozo_on_this_bus 4 years, 3 months ago

You got that right. Everyone knows that elections have no consequences. Not even stolen ones. Certainly nothing worth "whining" about.

Liberty275 4 years, 3 months ago

Simple solution: cards designed to be read by machines should only be read by machines and never subject to the whims of a human making a judgement regarding "voter intention". The only thing a human needs to ever read on a ballot is a write-in name, then only if "write-in" is marked by the voter and recognized by the machine.

Machines should be inspected by experts hired by any party that want's them checked for accuracy.

I don't want a human second guessing me and their subjective views allowed to interfere with my vote. I'd rather have my ballot thrown away.

uncleandyt 4 years, 3 months ago

Lieberman would have done some horrible stuff, but Dick Cheney demonstrates many life and liberty-threatening differences between the two scripts.

4 years, 3 months ago

Gore would taken the initiative in creating the first perfectly safe - not to mention climate controlled - society in human history.

Then in his second week in office, he would have played with kittens. Really cute ones.

Kirk Larson 4 years, 3 months ago

Old saw: If elections actually changed anything, they'd be illegal.

MrRighty 4 years, 3 months ago

Two Constitutional issues were the Court's main purview not your muckraking politics. One- State's Rights. Two-Equal Protection. The activist FL Supreme Court basically amended the election validation statute. That is the job of the FL legislature NOT the Court. If the Court found the waiting period to be somehow unconstitutional, they could strike the law down but not profer a substitute...which is what they tried to do or did....not sure if its still 19 days or not. The other issue was application of the vote counting law differently in different FL counties. Everything else is just political window dressing. Florida did an exceedingly poor job adjudicating the situation. Just because George Will posited the opinion doesn't necessarily make it wrong. I don't agree with bow-tie boy all the time either...but that doesn't make everything that comes out of his mouth swill.

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