• Last updated on November 11, 2022

By ordering the end to all recounts of Florida’s presidential ballots in the 2000 election, the Supreme Court in effect decided that George W. Bush, not Albert Gore, would be the next president.

After votes were counted on the evening of the presidential election of November, 2000, the outcome depended on whether George W. Bush or Albert Gore would be able to claim the electoral votes of Florida. Although it initially appeared that Bush had probably won the state’s popular vote by a few hundred votes, the Gore campaign demanded manual recounts of ambiguous punch-out ballots in four heavily Democratic counties. They argued that perhaps 50,000 of the ballots had not been counted because the punch-out holes, or chads, had not been counted because they were not entirely removed, and that it would nevertheless be possible to discern the voters’ intents in many instances. Bush’s legal team, happy with the initial count, naturally tried to prevent all hand recounts.

The controversy produced a complex series of legal maneuvering. On November 21, the Florida Supreme Court ordered Florida’s Secretary of State Katherine HarrisHarris, Katherine to include the results of manual recounts as part of the final tally. After reviewing the order, the U.S. Supreme Court issued Bush v. Palm Beach County,[c]Bush v. Palm Beach County asking unanimously for the Florida court to clarify whether its order was based on state or federal law. Informed observers understood that the Court’s conservative wing was attempting to establish that the Florida court had based the order on federal law in violation of Section II of the Constitution, which left the manner of selecting electors to the state legislatures.

On December 8, before responding to the inquiry, the Florida Supreme Court pleased the Gore camp when it ordered hand recounts to begin in counties having significant numbers of “undercounted” ballots. In response, Bush’s lawyers petitioned the U.S. Supreme Court for an emergency review. The next day, the Court issued a 5-4 emergency injunction which stopped the recount. Justice Antonin ScaliaScalia, Antonin;and 2000 election[two thousand election] explaining that the recount threatened “irreparable harm” to the country and to Bush’s reputation as the legitimately elected president. On December 12, the Court heard oral arguments, and the following day, it announced Bush v. Gore, which was a per curium opinion containing two rulings.

The first ruling, based on a 7-2 vote, announced that Florida’s recount order was inconsistent with the equal protection principle because it used different standards of counting in different areas without any clear directions on how the chads were to be assessed. The second ruling, based on a 5-4 vote, which reflected the conservative-liberal split on the Court, declared that there was insufficient time to carry out a recount, referring to Florida’s legislature presumed desire to take advantage of the federal “safe harbor” deadline, the date that would ensure that Florida’s electoral vote would not be contested. The two justices agreeing with the first ruling but not with the second ruling argued that the case should be remanded to the state court to resolve the equal protection problem. Concurring with both majority rulings, Chief Justice William H. RehnquistRehnquist, William H.;Bush v. Gore denounced the Florida Supreme Court for substituting its judgment for that of the state legislature.

Each of the four dissenters of the second ruling wrote separate opinions, arguing that the dispute should have been left up to Florida’s court and legislature. Finding that no federal questions were involved, the four liberals suggested that the five-justice majority, who usually defended states’ rights, had been motivated by an ideological bias. They noted, moreover, that the Constitution authorized Congress rather than the Court to resolve disputed presidential elections and other political controversies. Judge John Paul StevensStevens, John Paul;Bush v. Gore wrote that the legacy of the decision would be a decline in “the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Many people in the country, especially those sympathetic to the Democratic Party, agreed with this statement.

Bush v. Gore is one of the most controversial rulings in Supreme Court history. Critics have noted that the majority’s application of the equal protection clause to demand the same standard for deciding voters’ intent was contrary to tradition. A particular weakness was the acknowledgement in the per curium opinion that the requirement for a uniform standard would apply only to the “present circumstances,” and that in future elections different standards might be decided in different parts of a state. Despite the Court’s disclaimer, it is nevertheless possible that the application of the equal protection principle might again be applied to the way that votes are counted.

Further Reading
  • Dershowitz, Alan. Supreme Injustice: How the High Court Hijacked Election 2000. New York: Oxford University Press, 2002,
  • Dworkin, Ronald, ed. A Badly Flawed Election: Debating “Bush v. Gore,” the Supreme Court, and American Democracy. New York: W. W. Norton, 2002
  • Gilman, Howard. The Votes that Counted: How the Courts Decided the 2000 Presidential Election. Chicago: University of Chicago Press, 2001.
  • Hasen, Richard L. The Supreme Court and Election Law Judging Equality from “Baker v. Carr” to “Bush v. Gore.” New York: New York University Press, 2003.
  • Ryden, David K. The U.S. Supreme Court and the Electoral Process. 2d ed. Washington, D.C.: Georgetown University Press, 2002.
  • Whitman, Mark, ed. Florida 2000: A Sourcebook on the Contested Presidential Election. Boulder: Lynn Rienner, 2004.

Equal protection clause

Fifteenth Amendment


McConnell v. Federal Election Commission

Political questions

Presidential powers

Representation, fairness of

Categories: History