Opinion of Bush v. Gore (the U.S. Supreme Court decision)?

[Californiadreaming]

As for me, I voted for Option 2: "It was a defect, but imperfect, decision." As for my rationale for this position of mine, here goes:

I support the first part (the 7-2 vote) of Bush v. Gore that stated that the recount that was ordered by the Florida Supreme Court was unconstitutional. Indeed, it certainly doesn't seem very fair to consider a ballot a valid vote in one county but not in another county or even in one precinct but not in another precinct. Plus, it's certainly not fair to recount only the undervotes and not the overvotes as well. (Also, Yes, if possible, I would almost certainly support applying the equal protection principles of Bush v. Gore to all U.S. elections.) Indeed, if an election is right down to the wire, then surely it makes sense to have both a uniform standard for recounting ballots and to recount all of the ballots (as in, both the undervotes and the overvotes) that were thrown out by the vote-counting machines in Florida.

As for the second part of the Bush v. Gore (the 5-4 vote), here is what I have to say about this:

-If the alternative to completely stopping the recounting was a manual recount of only the undervotes plus the overvotes (using a uniform standard, obviously), then completely stopping the recounting (as in, what the five conservative U.S. Supreme Court Justices essentially did) was probably the superior option.
-However, I think that the best option in regards to this would have been to do a manual recount of all the undervotes, overvotes, and absentee ballots (using uniform standards, obviously). After all, there was certainly unequal treatment of the absentee ballots in Florida in 2000 (indeed, please see here: http://www.nytimes.com/2001/07/15/politics/15BALL.html?pagewanted=all ) and thus it would have certainly been extremely unfair to impose uniform standards for the ballots that the vote-counting machines in Florida threw out but not for the absentee ballots throughout all of Florida. After all, in Florida in 2000, every vote could have potentially been decisive given the extremely narrow margin there.

Anyway, any thoughts on what I wrote here?

[Californiadreaming]

Also, Yes, Al Gore and his lawyers certainly appear to have made a mistake (albeit almost certainly not a decisive mistake) by not mentioning the unequal treatment of Florida absentee ballots to the U.S. Supreme Court. Plus, the various U.S. Supreme Court Justices--especially the liberal ones--appear to have made a mistake in not inquiring themselves (in court, during the Bush v. Gore U.S. Supreme Court hearings) about whether or not there was equal treatment of absentee ballots throughout all of Florida in 2000.

[Antonio the Sixth]

Absolutely, utterly terrible.

[Mr. Reactionary]

Having read the full court opinion, and the oral argument transcript, and a 300 page book on the subject, I believe the outcome was the most correct opinion in light of the unique circumstances. As the OP pointed out it was 7-2 that there was an equal protection violation under the U.S. Constitution. The Florida Supreme Court exceeded its power. The U.S. Supreme Court had jurisdiction to hear the case. And the fact that it was BOOSH! who won is irrelevant to the actual legal arguments.

[Californiadreaming]

Having read the full court opinion, and the oral argument transcript, and a 300 page book on the subject, I believe the outcome was the most correct opinion in light of the unique circumstances.

Mostly agreed. Frankly, the only thing about Bush v. Gore that I am critical of is that it completely stopped the recounting process. Indeed, ideally the best thing to do would have probably been for the U.S. Supreme Court to not only order the Florida Supreme Court to implement a new manual recount of overvotes and undervotes using a uniform standard, but also to have the U.S. Supreme Court demand that the Florida Supreme Court likewise impose uniform standards (indeed, these uniform standards could have been based on the ruling that Judge Lacey Collier made in regards to absentee ballots several days earlier) for counting all of the absentee ballots in Florida.

Indeed, it certainly wouldn't be very fair to impose uniform standards for ballots that Florida's voting machines threw out but not for absentee ballots. However, unfortunately neither Al Gore nor any of the U.S. Supreme Court Justices appear to have raised the issue of equal protection for Florida's absentee ballots during the hearings for Bush v. Gore. Thus, based on the alternative that the four liberal U.S. Supreme Court Justices actually offered, completely stopping the recounting process was probably the better move.

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Yes; correct! Indeed, there is absolutely no compelling state interest in treating similar ballots differently when it comes to vote-counting.

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Didn't only three U.S. Supreme Court Justices make this argument, though? Indeed, I certainly don't remember any mention of Article II of the U.S. Constitution in the (main) Bush v. Gore ruling.

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Yes, this appears to be correct.

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Completely agreed. Indeed, the fact that Al Gore would have probably made a better U.S. President than George W. Bush would have certainly doesn't result in me looking at Bush v. Gore through partisan-colored glasses.

Also, though, out of curiosity--had U.S. Supreme Court Justice Anthony Kennedy not only voted the other way but also raised the question of equal protection for all of Florida's absentee ballots and thus the Florida Supreme Court would have been ordered to launch a new manual recount with uniform standards for undervotes, overvotes, and absentee ballots, this manual recount would have needed to end sometime before January 6, 2001, correct? Indeed, even if this manual recount wouldn't have been completed by the time that the Electoral College would have met on December 18, 2000 (and it probably wouldn't have been completed by this point in time if the slow manual recounting in four Democratic Florida counties in 2000 are any indication of the speed at which this new manual recount would have advanced), Florida's Supreme Court could have ordered that a slate of Gore electors be sent as late as January 5, 2001, correct? In such a scenario, the U.S. Congress could approve this slate of Gore electors if necessary (as in, if Al Gore would have actually won this new manual recount in Florida) while rejecting the slate of Bush electors that the Florida Legislature has previously sent, correct?

In addition to this, though, while this certainly doesn't affect the actual merits of the Bush v. Gore decision at all, if you are curious as to what exactly the outcome of a new manual recount in Florida that would have counted undervotes, overvotes, and absentee ballots using uniform standards would have looked like, I suspect--but certainly cannot prove--that Al Gore would have won this manual recount. Basically, while the 2001 media recount had Al Gore winning by about 100 votes (plus/minus several dozen votes depending on the specific standard involved), the 2001 media recount doesn't appear to have taken absentee ballots into account. Indeed, on December 8, 2001, Judge Lacey Collier granted Bush a partial victory by mandating seven Florida counties (Bush apparently didn't ask for the other Florida counties--so much for equal protection when it comes to absentee ballots! ) to accept some of the absentee ballots that they previously rejected. This ruling was predicted (by the media) to result in an additional gain of about 100 votes for Bush--which in turn would have made Bush v. Gore about even in the Florida count (after all, 100 votes - 100 votes = 0 votes). However, now we have to apply equal protection for all of Florida's absentee ballots. Indeed, since Florida's unequal treatment of absentee ballots likely benefited Bush (as my link in my original post here indicates), imposing uniform standards for Florida's absentee ballots would have probably favored Al Gore and would have probably pushed Al Gore over the top in Florida in 2000 (as in, would have probably caused Al Gore to win Florida in 2000).

[Californiadreaming]

Absolutely, utterly terrible.

Care to please elaborate on this?

[Antonio the Sixth]

Absolutely, utterly terrible.

Care to please elaborate on this?

Not really, tbh. I simply care about democracy and don't think blatantly inaccurate counts should be left standing.

[Californiadreaming]

Absolutely, utterly terrible.

Care to please elaborate on this?

Not really, tbh. I simply care about democracy and don't think blatantly inaccurate counts should be left standing.

Actually, I agree with you in regards to this. However, if you wanted the most accurate count, then uniform standards should have also been extended to Florida's absentee ballots. Unfortunately, though, neither Al Gore (and his lawyers) nor any of the U.S. Supreme Court Justices actually raised the issue of equal protection for Florida's absentee ballots.

[Californiadreaming]

Horrible decision because it gave Dubya the presidency.

The fact that this decision gave Dubya the Presidency doesn't necessarily mean that this decision itself was based on its merits, though.

Also, though, for the record, I would like to point out that, without imposing uniform standards to Florida's absentee ballots, I am unsure that Al Gore would have won Florida even if the U.S. Supreme Court would have ruled the other way in regards to launching a new manual recount in Florida.

[Californiadreaming]

Absolutely, utterly terrible.

Care to please elaborate on this?

Not really, tbh. I simply care about democracy and don't think blatantly inaccurate counts should be left standing.

Actually, I agree with you in regards to this. However, if you wanted the most accurate count, then uniform standards should have also been extended to Florida's absentee ballots. Unfortunately, though, neither Al Gore (and his lawyers) nor any of the U.S. Supreme Court Justices actually raised the issue of equal protection for Florida's absentee ballots.

Plus, if you care so much about democracy, why support the unconstitutional recount that the Florida Supreme Court ordered?

[mencken]

Not being particularly well-versed in the specifics of the case, my lay perspective says that the substance of the decision was sound (hunting for favorable jurisdictions in which to perform recounts certainly violates equal protection), but I am conflicted as to whether the Supreme Court had jurisdiction over the matter to begin with (allocation of electoral votes is reserved for the states). I suppose the former could constitute enough reason for the Supreme Court to intervene, but I am generally skeptical of use of the incorporation doctrine.

[Slander and/or Libel]

How do the different standards used in the recount differ from the different standards used in the initial count? That is, if it's an equal protection violation to recount according to different standards, are there procedures in place to ensure that the initial counts are done uniformly?

[SteveRogers]

Bad decision. On the equal protection question, the fact that Scalia and Thomas signed off on an unprecedented expansion and contortion of the equal protection clause should raise a red flag. But I'll give the Court the benefit of the doubt there. The real problem was the remedy. In order to sell that there was no time to establish uniform standards and conduct a proper recount, the majority greatly exaggerated the importance of the December 12 "safe harbor" deadline. In fact, Florida should have had until December 18 meeting of the electoral college to sort things out, so it's plausible that the Florida Supreme Court could've adopted appropriate standards and conducted a statewide recount in that time. I also think that the majority opinion was intellectually dishonest in playing fears of a "constitutional crisis" if the Florida legislature were to act to allocate the state's EV's during that period as congress was perfectly competent to resolve any resulting dispute.

[SATW]

It was an excellent decision

[OSR stands with Israel]

That election should have been contested in congress just like 1876

[NeverAgain]

A violation of the rights of the states. Awful anti-democracy decision.

[TDAS04]

Option 5.

[Oswald Acted Alone, You Kook]

One of the worst decisions in the history of the Supreme Court.

[NoTrump]

How do the different standards used in the recount differ from the different standards used in the initial count? That is, if it's an equal protection violation to recount according to different standards, are there procedures in place to ensure that the initial counts are done uniformly?

Did Gore ever actually challenge the initial count, though?

Also, differences in voting machines in different areas can be justified based on state interests in promoting innovation and keeping costs down.

[NoTrump]

Bad decision. On the equal protection question, the fact that Scalia and Thomas signed off on an unprecedented expansion and contortion of the equal protection clause should raise a red flag.

True; however, one can also criticize the liberals on the U.S. Supreme Court for not finding an equal protection problem in regards to the exclusion of the overvotes from the Florida recount. Indeed, whatever one thinks of different standards for counting ballots, excluding the overvotes appears to be inexcusable.

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In order for a new, constitutionally proper recount to be conducted, though, one would have had to recount the undervotes, recount the overvotes, recount all of the ballots that the machines classified as legal votes (since, as the per curiam opinion stated, a voter can mark two candidates on his or her ballot but have the machine only read one of these marks--thus classifying this vote as a legal vote even though it should have been thrown out), and provide for judicial review afterwards.

Indeed, I don't see how exactly this could have been accomplished within a six day time-frame. After all, to my knowledge, there were almost six million ballots which were marked as legal votes by the machines; surely it would be impossible to recount all of these ballots within a six day time-frame (especially if one also needs to recount both the undervotes and the overvotes)?

[NoTrump]

One of the worst decisions in the history of the Supreme Court.

Do you believe that Reynolds v. Sims was likewise a bad U.S. Supreme Court decision? After all, that is what Bush v. Gore was largely based on.

[darklordoftech]

The SCOTUS shouldn't be involved in elections at all. It was one of the worst ever instances of "judicial activism", something that conservatives claim to hate.

[muon2]

Absolutely, utterly terrible.

Care to please elaborate on this?

Not really, tbh. I simply care about democracy and don't think blatantly inaccurate counts should be left standing.

Inaccurate counts should not stand, but I would argue that in an election that close using the ballot technology that they did, the FL race was a statistical tie. With any given technology there are votes cast that can be counted either way as judged by experts trained to count them. In FL the margin of error created by the ballot technology was greater than the vote difference, hence it should be regarded as a statistical tie.

[SteveRogers]

The fact that Scalia and Thomas signed onto an unprecedented expansion of the scope of the Equal Protection Clause and then had the majority put language into the opinion basically stating "We dont' really mean that! Please don't ever use this case as precedent!" should tell you how much of a garbage opinion it was.

[AtorBoltox]

5 judges stole the election for Bush. High treason is what it is