Bush v. Palm Beach County Canvassing Board

RESPONDENT: Palm Beach County Canvassing Board
LOCATION: Office of Attorney General

DOCKET NO.: 00-836
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Florida Supreme Court

CITATION: 531 US 70 (2000)
ARGUED: Dec 01, 2000
DECIDED: Dec 04, 2000

Joseph P. Klock - Argued the cause for petitioner Harris
Laurence H. Tribe - Argued the cause for the respondent
Paul Hancock - Argued the cause for petitioner Florida Attorney General
Theodore B. Olson - Argued the cause for petitioner Bush

Facts of the case

The 2000 presidential election remained in limbo with the outcome dependent on the winner of the popular vote in Florida. Republican presidential candidate George W. Bush held a slim lead in the tally. Democratic presidential candidate Al Gore challenged the decision of Florida's Secretary of State, Katherine Harris, to certify the results of the presidential election on November 14, the deadline provided by Florida's election law. Gore also challenged Harris's decision to ignore the outcome of manual recounts his campaign had requested in four Florida counties, recounts available under another provision of Florida's election code. The Florida Supreme Court heard Gore's challenges and held that Harris could not certify the outcome until November 26. The Florida Supreme Court also held that Harris must include the results of manual recounts in the certified results. Governor Bush intervened. Harris and Bush appealed the Florida Supreme Court's decision to the U.S. Supreme Court.


Do post-election court decisions that limit legislators' or executive officials' discretion to certify election results violate the Due Process Clause of the U.S. Constitution or 3 USC Section 5? Did the Florida Supreme Court's decision change the manner in which Florida's electoral votes were chosen, thereby violating Article II Section 1 Clause 2 of the US Constitution, which confers plenary power in federal election matters on state legislatures?

Media for Bush v. Palm Beach County Canvassing Board

Audio Transcription for Oral Argument - December 01, 2000 in Bush v. Palm Beach County Canvassing Board

William H. Rehnquist:

We'll hear argument this morning in number 00-836, George W. Bush vs. The Palm Beach County Canvassing Board.

Mr. Olson.

Theodore B. Olson:

And may it please the Court: Two weeks after the November 7 presidential election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida's legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7th.

These laws have been formulated by the Florida legislature pursuant to an express delegation of authority, to wit, by the United States Constitution.

The election code that the Florida legislature developed conformed to Title 3, Section 5 of the United States Code.

That provision invites states to devise rules in advance of an election, to govern the counting of votes and the settling of election controversy.

Sandra Day O'Connor:

Well, Mr. Olson, isn't Section 5 sort of a safe harbor provision for states, and do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section?

Theodore B. Olson:

We do, Justice O'Connor.

It is a safe harbor, but it's more than that.

And Section 5 of Title 3 needs to be construed in connection with the history that brought it forth--

Sandra Day O'Connor:


But I would have thought it was a section designed in the case of, some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute.

I just don't quite understand how it would be independently enforceable.

Theodore B. Olson:

--That's why I've mentioned the context in which that section was adopted.

In light of the extreme controversy that was faced by this country as a result of the 1876 election, and as this Court knows, that election was very close and led to controversy, contest, discord, Congress was very much concerned about the possibility of that happening again, and one of the reasons--

Anthony M. Kennedy:

Yeah, but what they did was, and it's typical of grant-in-aid programs, they said if you run a clean shop down there, we'll give you a bonus, and if you don't, well, you take your chances with everybody else.

Theodore B. Olson:

--Justice Kennedy, I submit that it is much like a compact that Congress is offering in the form of Section 5, yes.

If you do these things, certain things will happen.

But among these things, what Congress wanted to accomplish with Section 5 was not only to provide the benefit to the states, but to provide the benefit to the United States of the states accepting that implicit proposal.

Anthony M. Kennedy:

But what is there in the opinion of the Supreme Court of Florida that indicates that it relied on this Federal statute in the reasoning for its decision and in its judgment?

Theodore B. Olson:

Well, I think the fact is that it did not.

What it did was it disregarded the compact.

When the state adopted a code of ethics, or a code of election procedures to govern the election and the determination of disputes pursuant to the election, it brought itself into that safe harbor and guaranteed to the voters and the candidates in that state that the controversy and turmoil that infected this country after the 1876--

Anthony M. Kennedy:

Well, we are looking for a Federal issue, and I thought that you might have argued that the Secretary of State was instructed by the Supreme Court not to jeopardize the state's chances and then cited 3 U.S.C. Sections 1 through 10.

And so if the, if the state supreme court relied on a Federal issue or a Federal background principle and got it wrong, then you can be here.

Theodore B. Olson:

--Well, I certainly agree that it mentioned those provisions.

I'm simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states to the voters in that state and to the people running for office in that state.

That is to say that if the rules are complied with, if disputes are resolved according to the rules that are set forth, then not only will the electors chosen by the voters in that state be given conclusive effect at the time they are counted by Congress but we will not have the controversy, dispute and chaos that's been taking place in Florida.

Antonin Scalia:

Mr. Olson, suppose a less, a less controversial Federal benefit scheme, let's say the scheme that says states can get highway funds if, if they hold their highway speeds to a certain level, all right?

And suppose you have a state supreme court that in your view unreasonably interprets a state statute as not holding highway speed to the level required in order to get the benefit of that safe harbor.