Moreover, the court's interpretation of "legal vote," and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. There is a legal argument for pushing Bush v. Gore aside. Perhaps there was too much C-SPAN, but that hardly threatens the Republic. If the cases were easy, they would not be in the Supreme Court. Several states were up for grabs, but in the end it came down to one: Florida, where Bush’s younger brother, Jeb, was governor.

. The Florida Supreme Court, although it must defer to the Secretary's interpretations, see Krivanek v. Take Back Tampa Political Committee, 625 So. The majority opinion announced that the ruling was “limited to the present circumstances” and could not be cited as precedent.

Those boards are responsible for providing results to the state Elections Canvassing Commission, comprising the Governor, the Secretary of State, and the Director of the Division of Elections.

When I asked a prominent law professor about this strange omission, he told me he had been invited to participate in another Rehnquist retrospective, and was told in advance that Bush v. Gore would not be discussed. In the end, then, I agree with the majority of the Justices of the United States Supreme Court who concluded that the Florida decision was sufficiently "rooted in long-established precedent" and sufficiently "consistent with the relevant statutory provisions" that it did not even raise "a colorable question" under Article II of the federal Constitution. December 12, 2000, is the last date for a final determination of the Florida electors that will satisfy § 5. Elections that systematically make it less likely that some voters will get to cast a vote that is counted are a denial of equal protection of the law. The other dissenters echoed this concern: "[T]he majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos." As Professor Pam Karlan of the Stanford Law School has observed: "A court that believes that the real problem in Florida was the disparities in the manual recount standards, rather than the disparities in a voter's overall chance of casting a ballot that is actually counted, has strained at a gnat only to ignore an elephant.". "A statutory provision will not be construed in such a way that it renders meaningless any other statutory provision."

§ 97.012(1) (Supp. 74 percent versus 4 percent. Article II, Section 1 could easily be read as a purely structural provision that should be left, except in the most egregious of circumstances, to the States and to the political branches of government. In an address to the John Carol Society three weeks after the Bush v. Gore (2000) decision, Chief Justice William Rehnquist attempted to rationalize his concurrence by comparing himself to Justice Joseph Bradley, who was the decisive vote on the commission that recommended a resolution of the controversial presidential election of 1876.

Frankly, I would have been more impressed with these particular Justices' nobility if the consequence of their decision had been to install as president the Democratic candidate for the job. It would tend to bring that court into public odium . Don't the Justices just vote their political preferences? and groups like it raise the objection. ", On this view, one might conclude that the "intent of the voter" standard posed a distinct Equal Protection problem that does not necessarily implicate the issue of different voting methods in different parts of the State.

§ 102.166(5) (Supp.

§ 5. In the decade leading up to Bush v. Gore, Justices Rehnquist, Scalia and Thomas cast approximately 65 votes in non-unanimous Supreme Court decisions interpreting the Equal Protection Clause.

Moreover, and more to the point, the majority explicitly declared that "the question before the Court is not whether local entities . There was no social unrest, no paralysis of government, no lack of discipline in foreign affairs, no instability in the financial markets, no crisis in consumer confidence, no stockpiling of goods. Yet in the late afternoon of December 8th–four days before this deadline–the Supreme Court of Florida ordered recounts of tens of thousands of so-called "undervotes" spread through 64 of the State's 67 counties.

This is of course absurd. Consider, for example, the problem of defining a "legal vote" under Florida law. Not to be outdone, my conservative colleague Richard Epstein has sniped that the Court's equal protection argument is "a confused nonstarter at best, which deserves much of the scorn that has been heaped upon it.". As the Justices who rejected this argument made clear, this is, at best, a novel construction of the United States Constitution.

He spent the next year as law clerk to Justice William J. Brennan, Jr. of the Supreme Court of the United States. Bush v.Palm Beach County Canvassing Bd., ante, at 6. But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. It undermines the courts’ legitimacy when they depart sharply from the rules of precedent, and it gives support to those who have said that Bush v. Gore was not a legal decision but a raw assertion of power. No.

As the champions of judicial restraint, strict construction and federalism, their indulgence of this highly intrusive argument in Bush v. Gore was out of character, to say the least. Whereas the majority in the Supreme Court of Florida stated its confidence that "the remaining undervotes in these counties can be [counted] within the required time frame," 772 So.

Moreover, the Court is frequently called upon to give meaning to the highly opened-textured provisions of our Constitution: "Congress shall make no law abridging the freedom of speech."

The Elections Canvassing Commission must then certify the results of the election. This is important because the Florida Election Code expressly includes as a ground for "contesting" an election "the rejection of a number of 'legal votes' sufficient to change or place in doubt the result of the election." But no one claims that these ballots have not previously been tabulated; they were initially read by voting machines at the time of the election, and thereafter reread by virtue of Florida's automatic recount provision. 39-40; cf. Of course, in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character.

and clearly ignored a host of problems as serious as those it addressed." Nineteen of those votes were cast in cases involving affirmative action, and I will return to them in a moment. in Bush v. Palm Beach County Canvassing Bd., O.T. This represents 100 percent of their votes in these cases--a perfect record. In his concurring opinion in Bush v. Gore, Chief Justice Rehnquist, joined only by Justices Scalia and Thomas, argued that the Florida Supreme Court decision violated this provision. § 102.168(8) (Supp. Now, I am not here to argue that the decision of the Florida Supreme Court was necessarily correct in every respect as a matter of state law. “Having once granted the right to vote on equal terms,” the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now. A key question was thus whether a punch-card ballot containing a hanging or dimpled chad could constitute a "legal vote" for these purposes. In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. This page was last edited on 13 April 2009, at 11:50. He has written a casebook with Cass Sunstein in the area of constitutional law. Apparently the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newlyfreed slaves, is to be used for two and only two purposes--to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election. Bush v. Gore’s lasting significance is being fought over right now by the Ohio-based United States Court of Appeals for the Sixth Circuit, whose judges disagree not only on what it stands for, but on whether it stands for anything at all. Isn't all this "stuff" about the Constitution merely a charade?

Although the Florida Supreme Court has on occasion taken over a year to resolve disputes over local elections, see, e.g., Beckstrom v. Volusia County Canvassing Bd., 707 So.

. Fla. Stat. Section 5 provides that the State's selection of electors "shall be conclusive, and shall govern in the counting of the electoral votes" if the electors are chosen under laws enacted prior to election day, and if the selection process is completed six days prior to the meeting of the electoral college.

§ 102.141(4) (Supp. Ann. 1651Bush v. Gore — Opinion - Concurrence of RehnquistUnited States Supreme Court Chief Justice Rehnquist, with whom Justice Scaliaand Justice Thomasjoin, concurring. § 101.46 (1992); each polling place on election day contains a working model of the voting machine it uses, Fla. Stat.

Once a protest has been filed, "[t]he county canvassing board may authorize a manual recount." This is an extraordinary assertion of federal judicial power. For the sake of comparison, over this same period, and in these very same cases, the colleagues of Justices Rehnquist, Scalia and Thomas collectively voted 74 percent of the time to uphold the Equal Protection Clause claim. 2d 840, 844 (Fla. 1993), rejected her reasonable inter-pretation and embraced the peculiar one. A liberal three-judge panel of the United States Court of Appeals for the Ninth Circuit agreed. Although this argument was endorsed by seven of the nine Justices--all but Stevens and Ginsburg--it has generally been treated with derision by liberal and conservative commentators alike.

. 2d, at 1262, n. 22, it made no assertion that the seemingly inevitable appeals could be disposed of in that time.

But that decision was quickly reconsidered en banc —that is, reheard by a larger group of judges on the same court — and reversed. But, with respect to a Presidential election, the court must be both mindful of the legislature's role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate. The majority therefore concluded that the "recount mechanisms implemented [by] the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right" to equal protection.

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