Saturday marked the 15th anniversary of the U.S. Supreme Court’s controversial decision in Bush v. Gore, which put a stop to the recount in Florida, and thereby handed George W. Bush the 2000 presidential election. The case excited considerable scholarly argument, along with a partisan rancor that continues to this day. Looking back, however, it’s hard to imagine an outcome that would have left the losing side satisfied — whichever side it happened to be. Let’s remember the background. First, the “election night” count awarded the state to Republican George W. Bush by 1,784 votes over Democrat Al Gore. An automatic recount, required by state law because of the small margin, determined that Bush had won the state by 537 votes. On Nov. 26, the state’s election authority certified that Bush had won. The Gore campaign protested that thousands of ballots — the so-called undervotes — had been rejected by the counting machines and should have been tabulated by hand. The Gore campaign sued, and the Florida Supreme Court, by a vote of 4-3, ordered a manual recount of all undervotes statewide. The Bush campaign then appealed to the U.S. Supreme Court, which heard oral arguments on Dec. 11 and, on Dec. 12, ordered the recount stopped, on equal protection grounds, because the state had no clear standard for determining voter intent in tabulating the undervotes.
The vote was 5-4. The dissents were vehement.
The reasoning in Bush v. Gore was terribly weak. As my friend and mentor Guido Calabresi put it, the majority opinion “was unusual though not unique in its total lack of what can be called ‘principle.'” Of course, poor reasoning does not distinguish Bush v. Gore from lots of other controversial Supreme Court decisions.
Public discussion of the case was mostly risible. I wrote at the time (and still believe) that there was little attention to principle on either side. Democrats and Republicans alike adopted public interpretations of Florida election law that would help their candidate win, and viciously derided those who read that complex statute differently. Dispute that proposition if you wish, but then be prepared to explain the coincidental left-right breakdown on whether Florida law of the time allowed courts to waive the seemingly unambiguous statutory requirement on the date by which recounts had to be completed.