Josh Hanlon January 11th, 2013 CLN4U-01 Mr. Currie Law Research Essay Bush vs. Gore: Why The Votes Should Have Been Counted Bush vs. Gore was described as a controversial election to say the least. The votes in several Florida counties were put up into question as to whether they should be counted or not. In a Democratic Election all legal votes must be counted. The main arguments around this issue were Article 2, Section 1 of the Constitution, the interpretation of the Equal Protection Clause and confusion around voting deadlines during the Recount. This process was exacerbated by the lack of impartial justices and secretary of state.
The initial argument surrounding this issue is Article 2, Section 1 of the Constitution. Article 2, Section 1 of the Constitution states, “In presidential elections, each State shall appoint, in such manner as the legislature thereof may direct, the electors to which the State is entitled. ” That being said 3 justices, Rehnquist, Scalia, and Thomas all argued that Florida violated this; there argument placed a lot of emphasis on the word “legislature”. Meaning to say that there is a difference between the State, who is empowered to appoint its own electors and that own State’s legislature.
Furthermore, this Article of the Constitution is completely out of the Supreme Court’s jurisdiction in the circumstances. The Supreme Court should have nothing to do with matters of state law in between the State and their own Legislature. Also, the Florida Supreme Court held that “a legal vote may include any ballot from which it is reasonably possible to determine the clear intent of the voter, whether or not the ‘chad’ had been completely punched through, which is consistent with the law of the clear majority of the States”.
Chief Justice Rehnquist in his opinion argued that this interpretation was so ridiculous and not mirrored with Florida legislation, that it violated Article 2. He claimed that because most counties use punch cards that tell you to clearly punch your ballot no reasonable person could count a vote that wasn’t clearly punched all the way through. (Geoffrey R. Stone, Equal Protection? )
The Florida Election Code states that “no vote shall be declared invalid if there is a clear indication of the intent of the voter”, also a 60 year old Florida Law precedent states that “must give statutes relating to elections a construction in favor of the citizen’s right to vote, and the intention of the voters should prevail when counting ballots” (Constitution of the State of Florida, As Revised in 1968) After hearing this, the other 6 Justices concluded that the Florida Supreme Court decision was in long established precedent and said it didn’t even raise a question under Article 2 of the Constitution.
In simpler terms, stating that all of those votes were legal and that the standards set were sufficient to determine which votes should and should not be counted. Onto the Equal Protection Clause, the Supreme Court basically contradicts themselves on this matter. After stating the voting standards set by the Florida Supreme Court didn’t violate Article 2, they continued on to state that it violates the Equal Protection clause because “the standards for accepting or rejecting contested ballots might vary not only from county to county but even within a single county” (Geoffrey R.
Stone, Equal Protection? ). What is startling is that the Florida Constitution states, “The intention of the voters should prevail when counting ballots” meaning that if there is any intention the vote should be counted, and if this wasn’t precise enough for the Supreme Court why did they vote to uphold it on the Article 2, Section 1 vote? If the Supreme Court required a uniform standard for counting and recounting votes in Florida, why does it not need a uniform standard for voting?
Is the fact that punch card voting has a sufficiently higher chance of having your vote not counted compared to computer voting where there is a bare minimum chance of your votes not being counted violating the Equal Protection Clause as well? Or is it the fact that punch card counties are more commonly in low income counties, who tend to vote Republican (Al Gore)? All of these things ould be seen as discriminatory or “not equal” as well as the non-uniform standard for counting, but if the Supreme Court has decided that the recount standard is in violation then in thought the whole Election should be rendered “Unconstitutional” and put to an end, correct? To continue, no it should not be put to an end. The Supreme Court should have ordered a stay on the Recount until a uniform standard was put in place for all of the Florida Counties and they should have ordered that every state have a uniform standard for Recounts for future elections.
The Supreme Court made a Pragmatic but Unlawful decision in voting for the violation of the Equal Protection Clause which led to the stoppage of the 2000 Florida Recount. (Bo Li, Perspectives, Vol. 2, No. 3). This goes without mentioning the fact that Bush’s state of Texas had a uniform voting standard which allowed anything to be counted in the scenario of a recount including a dimpled chad. This means that Governor Bush signed in a bill that let any vote with slight intent be counted in the process of a Recount, yet is arguing that intent of a voter is an unconstitutional argument.
This is hypocritical and shows a lack of character, if Bush truly believes in the Constitution he should be letting all the legal votes be counted to see if he actually won the Presidency of the United States. If Bush truly cared about the simple uniform standards for Recounting, he should have ordered for a stay until uniform standards were set in place. Instead he argued the entire Recount unconstitutional and the 5-4 majority (5 Republican Judges-4 Democratic Judges) decided that there was no reason to Recount possibly legal votes when it had a chance of harming Bush’s chance to become Prime Minister.
Legal analysts from all over the Country explained it as the Justices trying to make a pragmatic decision by putting an end to this controversy, turns out it backfired on them. (Geoffrey R. Stone, Equal Protection? ) The third point to be explained in this case is the ongoing controversy over voting deadlines and how the ever so bright Secretary of State in Florida Katherine Harris’ thoughts were constantly being controlled by Bush advisors. Katherine Harris (and Friends) made it very clear that they would ot be accepting votes after a certain deadline, which left no time for the original recount. All these votes had to be stamped and signed to be considered legal votes. This left the Democratic Party frantically trying to recount votes and get them stamped and in on time. When she ruled that if votes were not stamped and signed they could not be accepted, the Democratic Party argued that tons of Military votes could not be counted because they were very rarely stamped and signed. In the US there is no voting law that states Military Votes can be accepted with no signature or stamp.
This obviously led to an uproar from Republicans (Who most military votes get casted for) because it was just unethical for the Democrats to take away illegal votes for the Republicans. What the Republicans fail to realize is that taking away Florida citizens legal votes because you are scared of losing is also unethical. The Democrats later changed their minds and told the Secretary to reconsider the Military votes and give them special consideration. (Joseph I. Lieberman, Military Ballots Merit a Review)
There are a few other factors I would like to add to perspective before closing my argument, in Florida the Republican swayed Secretary of State Katherine Harris put 20 Thousand people on the Voter Purge list. A Large group of these people had never done anything wrong, in particular an African-American Pastor could not vote because his name was similar to that of a hardened criminal in Florida (HBO Documentary, Recount). The most interesting fact of all was that the 3 Judges who voted for Bush in both instances (Rehnquist, Scalia, Thomas) were all considered Republican judges.
In the last 30 years at the Supreme Court the 19 Cases involving the Equal Protection Clause concerning laws against race, elderly, and other minorities they voted a perfect 19 for 19 to uphold the Equal Protection Clause. Yet, the one case involving Politics and the party they are associated with they for some strange reason voted against it with very little reasoning. (Geoffrey R. Stone, Equal Protection? ) If that’s not Politics in Black Robes, what is. In Conclusion, Legal votes in Florida were not counted when they should have een. The various ideas such as the proper vote in Article 2, Section 1, the contradiction and unlawful voting on the Equal Protection Clause and the confusing deadlines regarding votes were all examples of how things can be exacerbated by impartial Judges and Secretary of States. The votes in Florida should have been recounted after a uniform standard was put in place similar to the one in Texas and the real results of the 2000 Election should have been deciphered.
All else aside, the whole United States should have a uniform voting, counting and recounting standard to eliminate all this confusion in the future. Bibliography http://www. leg. state. fl. us/statutes/index. cfm? mode=constitution&submenu=3 http://www. nytimes. com/2000/11/20/us/counting-vote-absentee-ballots-military-ballots-merit-review-lieberman-says. html? pagewanted=all&src=pm http://fathom. lib. uchicago. edu/1/777777122240/ http://www. oycf. org/Perspectives2/9_123100/bush_v1. htm HBO Documentary, Recount