Suggested Citation: The Supreme Court held that Vice President Gore had satisfied his burden of proof under §102.168(3)(c) with respect to his challenge to Miami-Dade County’s failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President (“undervotes”). Because Governor Bush’s margin of victory was less than “one-half of a percent . Five hundred thirty-seven votes. Gray v. Sanders, 372 U.S. 368 (1963). See ____ So. Virtually all of the suits are variations on a theme. *When the Florida court ruled, the totals for Bush and Gore were then less than 1,000 votes apart. Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to count them. (adsbygoogle = window.adsbygoogle || []).push({});,, Cruzan v. Director, Missouri Dept. The State has not shown that its procedures include the necessary safeguards. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. Indeed, it is respondent’s submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court’s decision to permit this. For non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. The problem, for instance, of the estimated 110,000 overvotes has not been addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. op., at 35). Pursuant to this Court’s Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith. The Court (unfortunately) was right when it said we have no constitutional right to vote for president. The State Supreme Court’s inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way. “You’d better call Al Gore right away,” my mother insisted, “and tell him that there are many ladies in the complex, men too, who had trouble voting for him this morning. The Supreme Court of Florida has said that the legislature intended the State’s electors to “participat[e] fully in the federal electoral process,” as provided in 3 U.S.C. The Republicans have the advantage here. Because of the pandemic, every state has faced questions as to how the elections will work. Ginsberg has also pointed out recently that in every past election thousands of Republican lawyers have been looking for fraud in polling centers and polling places and they have found a minuscule number of incidents. The state Supreme Court reached a reasonable and accurate interpretation of Florida’s state law and should be affirmed. op., at 33—34). Writing about appointing electors, the majority states: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States,” citing McPherson v. op., at 38). In nearly all states, a timely recount in a presidental election remains impossible to conduct today. II, §1. The Court held that the standardless state method for performing a recount was unconstitutional. Ranked choice voting makes democracy more fair and functional. As a result, the court was attempting to circumvent the prior practice of safe harbor protections and utilize a completely new procedure. §102.166 (2000). The Bush v. Gore majority directly addressed the right to vote. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary of State, as required by Fla. Stat. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes. An early case in our one person, one vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. Earlier this fall, Ben Ginsberg, one of the most respected Republican lawyers for the last four decades, concluded that Republican lawyers in these cases “must deal with the basic truth that four decades of dedicated investigation have produced only isolated incidents of election fraud.”. 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. Copyright ©2020 Dow Jones & Company, Inc. All Rights Reserved. The press of time does not diminish the constitutional concern. § 5 Justice Breyer’s proposed remedy–remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida election code, and hence could not be part of an “appropriate” order authorized by Fla. Stat. Later in the week, the court, by a 5-3 margin, did stay a ruling by a federal district judge that would have allowed Alabama counties to adopt curbside voting. In the 2000 election between Republican candidate George W. Bush and Democrat candidate Al Gore, Florida reported that Bush had won the state by 1,784 votes. I should’ve called Al Gore. 2, of the United States Constitution and failing to comply with 3 U.S.C. What Bush v. Gore Can Tell Us About Election 2020 : It's Been a Minute with Sam Sanders Election Night 2020 is a week away. § 5. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. In contrast, here the state Supreme Court announced that electors would be chosen subject to de novo review of ballots after the election. The only disagreement is as to the remedy. Chief Justice Roberts joined the three liberals while the four conservatives would have put the state court’s decision on hold. The court has yet to cite the case as precedent, and went as far as to state in the per curium decision that “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities”, in effect limiting the ability for the case to be used as precedent. The Republicans argue in every one of these cases, as they have in the legislative battles, that changes proposed by Democrats in response to Covid-19 that make it easier to vote will lead to voter fraud. Florida State Supreme Court determined to keep the recount ongoing after Nov. 14th, stating that "The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle.”. Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. This essay provides a look at the legal landscape regarding the right to vote that has emerged in the wake of the 2012 elections. ___ So. Equal protection applies as well to the manner of its exercise. 2d, at ___ (slip op., at 39). The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Since this margin was less than one-half of one percent, Florida law required an automatic machine recount. One dissent pegged the number of uncounted votes in question at 170,000. 13-05, Available at SSRN: If you need immediate assistance, call 877-SSRNHelp (877 777 6435) in the United States, or +1 212 448 2500 outside of the United States, 8:30AM to 6:00PM U.S. Eastern, Monday - Friday. §102.168(8) (2000), the Supreme Court further held that the Circuit Court could order “the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes … to do so forthwith, said tabulation to take place in the individual counties where the ballots are located.” ____ So. The votes certified by the court included a partial total from one county, Miami-Dade. Bush petitioned to the Supreme Court of the United States to stay the recount. That brings the analysis to yet a further equal protection problem. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No.