Bush v. Gore

PETITIONER: George W. Bush
LOCATION: Florida Supreme Court

DOCKET NO.: 00-949
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Florida Supreme Court

CITATION: 531 US 98 (2000)
ARGUED: Dec 11, 2000
DECIDED: Dec 12, 2000

David Boies - Argued the cause for the respondent
Joseph P. Klock - Argued the cause for petitioner Harris
Theodore B. Olson - Argued the cause for petitioner Bush

Facts of the case

Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later.


Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?

Media for Bush v. Gore

Audio Transcription for Oral Argument - December 11, 2000 in Bush v. Gore

William H. Rehnquist:

We'll hear argument now on number 00-949, George W. Bush and Richard Cheney, versus Albert Gore, et al. Before we begin the arguments, the Court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances.

We greatly appreciate it.

Mr. Olson.

Theodore B. Olson:

Mr. Chief Justice, thank you, and may it please the Court--

Just one week ago, this Court vacated the Florida Supreme Court's November 21 revision of Florida's election code, which had changed statutory deadlines, severely limited the discretion of the State's chief election officer, changed the meaning of words such as shall and may into shall not and may not, and authorized extensive standardless and unequal manual ballot recounts in selected Florida counties.

Just four days later, without a single reference to this Court's December 4 ruling, the Florida Supreme Court issued a new, wholesale postelection revision of Florida's election law.

That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon, and expanded its November 21 judgment that this Court had made into a nullity.

Ruth Bader Ginsburg:

Mr. Olson--

Anthony M. Kennedy:

--Can you begin by telling us our federal jurisdiction, where is the federal question here?

Theodore B. Olson:

The federal question arises out of the fact that the Florida Supreme Court was violating Article II, section 1 of the Constitution, and it was conducting itself in violation of section 5 of Title III of federal law.

Anthony M. Kennedy:

On the first, it seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution and it can't use its courts, and it can't use its executive agency, even you, your side, concedes it can use the state agencies, it seems to me a holding which has grave implications for our republican theory of government.

Theodore B. Olson:

Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures.

Legislatures, of course can use the executive branch in the states, and it may use in its discretion the judicial branch.

Anthony M. Kennedy:

Then why didn't it do that here?

Theodore B. Olson:

It did not do that here because it did not specify... it did use the executive branch.

In fact, it vested considerable authority in the Secretary of State, designating the Secretary of State as the chief elections official, and as we point out, the very first provision in the election code requires the Secretary of State to assure uniformity and consistency in the application and enforcement of the election law.

The Secretary of State as the executive branch is also given considerably other... considerable other responsibilities, when but... and to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the Circuit Court of the State of Florida, which is the trial court.

Sandra Day O'Connor:

Oh, but you think then there is no appellate review in the Supreme Court of what a circuit court does?

Theodore B. Olson:

Certainly the legislature did not have to provide appellate review.

Sandra Day O'Connor:

Well, but it seemed apparently to just include selection of electors in the general election law provisions.

It assumed that they would all be lumped in together somehow.

They didn't break it out.

Theodore B. Olson:

Well, there are... there is a breakout with respect to various aspects of Florida statute and Florida election law.

There is a specific grant of authority to the circuit courts.

There is no reference to an appellate jurisdiction.

It may not be the most powerful argument we bring to this Court.

John Paul Stevens:

I think that's right.

Theodore B. Olson:

Because notwithstanding, notwithstanding... well, the fact is that the Constitution may have been invoked.

Anthony M. Kennedy:

Well, this is serious business because it indicates how unmoored, untethered the legislature is from the constitution of its own state, and it makes every state law issue a federal question.

Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether this court or the executive has gone too far?