Bush v. Gore

Following is the case brief for Bush v. Gore, Supreme Court of the United States, (2000)

Case Summary of Bush v. Gore:

  • After Bush was declared victorious by a few hundred votes, reports surfaced of widespread ballot issues questioning the overall results.
  • Gore sued Florida requesting a manual recount using the “reasonable probability” standard and lost. The state Supreme Court held gore would have won under the correct standard and reversed. Bush petitioned to the United States Supreme Court for certiorari.
  • The Court held that the standardless state method for performing a recount was unconstitutional.

Bush v. Gore Case Brief

Statement of the Facts:

The presidential election of 2000 was one of closest elections in U.S. history. After Gore won the popular vote, the election’s outcome was contingent upon Florida and its twenty-five electoral votes. Once the deadline for counting the votes had passed, no clear winner of Florida’s electorate vote was announced. Gore then requested a manual recount under Florida’s statute. The state statute provided for “contest’ of election results when a receipt 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.” The trial court found for Bush ruling that Gore failed to prove his burden with “reasonable probability.”

Procedural History:

  • The trial court found for Bush under the “reasonable probability” standard.
  • Florida’s Supreme Court reversed, claiming Gore met the appropriate standard showing “receipt 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.”
  • Bush petitioned to the Supreme Court of the United States to stay the recount. The Supreme Court granted certiorari.

Issue and Holding:

Does the use of manual recounts, absent any standard, violate the 14th Amendment’s Equal Protection Clause? Yes.

Rule of Law or Legal Principle Applied:

In a contested presidential election, a state is required to conduct a manual recount of the votes and issue uniform rules governing the recount to give equal weight to each vote and determine the intent of the vote under the Equal Protection Clause.


The Supreme Court of the United States reversed and remanded the case.


  • The decision of the state Supreme Court is reversed and the case is remanded to the state legislature for further consideration of appropriate standards governing a recount.

Until the state chooses a statewide election method to implement its power to appoint members of the Electoral College, any individual has no constitutional right to vote for the electors for President of the U.S.

Once a state holds such election, the right to vote becomes fundamental and the weight given to each vote must be equal. Compromising equality can result if the process permits more weight to some votes over others.

Here, the counting dispute is driven by the procedure of voting with a ballot machine designed to record votes by perforating each ballot by a stylus.In Some cases, a portion of the ballot remained hanging or merely indented rather than fully perforated.

The Court held that the state Supreme Court’s ruling for a manual recount is abstract and standardless and fails to satisfy the minimum requirements for non-arbitrary treatment of voters necessary to secure the fundamental right of voting. Formulation of uniform rules determining intent based on recurring circumstances is practical and necessary. Application of different standards would result in impermissible inequality in the treatment of votes.

Concurrence (Rehnquist):

In addition to the majority’s decision, grounds exist for invalidating the state Supreme Court’s decision. Under the federal safe harbor provision regarding decisions on the selection of electors, a state’s selection of such is conclusive and governs the counting of votes if electors are chosen under state laws existing prior to the election and the selection process is complete six days prior to the Electoral College meeting.

In contrast, here the state Supreme Court announced that electors would be chosen subject to de novo review of ballots after the election. As a result, the court was attempting to circumvent the prior practice of safe harbor protections and utilize a completely new procedure. The court also provided no weight to the state secretary’s rejection of recounted ballots and submitted ballots after the deadline to certify the results.

The legislature intended to take advantage of the safe harbor provision and the remedy provided by the state Supreme Court violates both the safe harbor provision and statutory framework.

Dissent (Stevens):

Enacting a new system to recount ballots that take into account the intent of the voter is within the power of the state Supreme Court. The standard is not so vague that it equals a constitutional violation of the Equal Protection Clause.  The majority’s decision to terminate the recount risks excluding an unquantifiable number of voters whose ballots included their vote, but were rejected by the machine.

Dissent (Souter):

Three issues exist:

  • Whether the Florida Supreme Court’s interpretation of the statute providing for a contest of the state election results violates the “safe harbor” for state laws enacted before the election, no state is constitutionally required to comply if it cannot do so. As a result, the state Supreme Court did not act unconstitutionally in issuing a new electoral standard when the state as a whole was unable to comply.
  • The second issue is whether the Florida Supreme Court’s construction of the state statutory provisions governing contests impermissibly changes state law in violation of the Constitution. The actions of the state Supreme Court did not substantially change the legislature’s electoral scheme. The state Supreme Court correctly directed the trial judge to deal with that contest based on the discretionary powers given to it under the Florida Constitution and did not violate Article two.
  • The third issue is whether the manner of interpreting markings on the disputed ballots violate the Due Process or Equal Protection Clauses of the Constitution. The Florida legislature did not have time to properly announce new recount standards. The case should have been remanded for additional consideration of new standards by the state Supreme Court.

Dissent (Ginsburg):

The state Supreme Court reached a reasonable and accurate interpretation of Florida’s state law and should be affirmed. The Supreme Court rarely rejects an outright interpretation of state law by a state court as it did here. The state Supreme Court is entitled to deference in interpreting its own electoral laws. Bush failed to present a substantial claim under Equal Protection as no evidence exists suggesting that a new recount would yield a different result.

Dissent (Breyer):

The case should have been resolved by the state Supreme Court based on state law interpretation. Three possible Equal Protection violations exist in the majority’s opinion:

  • Failure to include all of the overvotes in the manual recount
  • All ballots, rather than simply the undervote ballots were recounted in some but not all counties
  • The absence of a uniform, specific standard to guide the recounts


Bush v. Gore is famous for its impact on one of the closest elections in U.S. history, this case stressed the importance of having a set uniform procedure of hand-counting ballots in the event of a recount.

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