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Supplemental Materials for Brest, Levinson, Balkin, Amar and SiegelProcesses of Constitutional DecisionmakingBush v. Gore1The problem of a President elected with a minority of the popular vote became a realityin the 2000 Election. The election itself was marred by controversy and allegations ofwidespread disenfranchisement of black voters in the crucial state of Florida. It wasultimately decided by the Supreme Court in the following case.BUSH v. GORE531 U.S. 98 (2000)[The 2000 Presidential Election was among the closest in the nation’s history. TheDemocratic candidate, Vice-President Al Gore, won the popular vote by approximatelyhalf a million votes over the Republican candidate, Texas Governor George W. Bush. However the electoral college majority ultimately turned on which candidate won theState of Florida. The morning after the November 7th election, Bush held a narrow leadof less than 2,000 votes statewide.A complicated set of legal maneuvers then began between the two camps. VicePresident Gore’s lawyers filed election protests in several large predominantlyDemocratic Florida counties, seeking manual recounts of punch card ballots that hadregistered no vote for President on the machines but that might indicate the voter’s intent. The Florida Secretary of State, Katherine Harris, who was co-chairman of George W.Bush’s Florida state campaign committee, interpreted Florida law to require that allelection protests had to be concluded within one week of the election on November 14. The Florida Supreme Court, whose seven members were Democrats, unanimously votedto extend the statutory deadline for election protests to November 26th and required theSecretary of State to include the manual recount totals in her certification. However, onlyone county completed a manual recount by the new deadline.Governor Bush appealed to the United States Supreme Court, arguing that theFlorida Surpreme Court’s extension of time changed the law in place at the time of theNovember 7 election. It therefore was in violation of Article II, Section 1, Clause 2 ofthe Constitution, which provides that “[e]ach State shall appoint [electors for Presidentand Vice-President] in such Manner as the Legislature thereof may direct.” GovernorBush also argued that the decision violated U.S.C. Title 3 § 5, which creates a “safeSupplemental Materials for Brest, Levinson, Balkin, Amar and SiegelProcesses of Constitutional DecisionmakingBush v. Gore2harbor” for the electoral votes of states if they appoint electors based upon “laws enactedprior to the day fixed for the appointment of the electors.” The safe harbor, which madeelectoral results “conclusive” in any controversy involving counting of electoral ballotsbefore the Congress, was available to states only if the determination of electors wasconcluded by December 12th, six days prior to the statutorily assigned date for electors tomeet to cast their ballots on December 18th.On December 4th, the U.S. Supreme Court unanimously vacated the FloridaSupreme Court, asking for a more detailed explanation of the basis for the decision. Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000). By the time the Courtacted, however, the protest phase had already concluded, Secretary Harris had certified a537 vote lead for Governor Bush, and Vice President Gore began an election contest inthe Florida courts. Meanwhile, the leadership of the Republican-controlled FloridaLegislature called for a special session to appoint a Republican slate of electors or pass aresolution confirming that the Republican slate was the correct slate if Gore succeeded inmoving ahead of Bush in the recounts.On December 8th, with only four days to go before the expiration of the safeharbor, the Florida Supreme Court reversed a lower court decision and by a vote of 4-3ordered that a recount from Palm Beach county that concluded after the November 26thdeadline and a partial recount from Miami Beach county be included in the certification. It then ordered a statewide manual recount of “undervotes”-- ballots on which earliermachine counts had registered no vote for President. In many parts of the state voterspunched their preferences into punch card ballots using a stylus, and sometimes did notcompletely remove the “chad” but instead left a hanging chad or “dimple” withoutpunching all the way through. In some cases, voters simply wrote their preferences onthe ballot. The Florida Supreme Court ordered a recount supervised by judicial officialsand held that in determining which ballots counted the test should be the standard of “theintent of the voter.”Governor Bush immediately appealed to the U.S. Supreme Court. The next day,on December 9th, five Justices voted to grant certiorari and ordered a stay of theproceedings. Bush v. Gore (Bush I), 121 S. Ct. 512 (2000). By the time the stay wasannounced Bush’s lead had been cut to less than two hundred votes. The U.S. SupremeCourt did not give its reasons for granting the stay, but Justice Scalia wrote a separateopinion noting that “[i]t suffices to say that the issuance of the stay suggests that amajority of the Court, while not deciding the issues presented, believe that the petitionerhas a substantial probability of success.” As to the requirement of irreparable injury,Supplemental Materials for Brest, Levinson, Balkin, Amar and SiegelProcesses of Constitutional DecisionmakingBush v. Gore3Scalia argued that “[t]he counting of votes that are of questionable legality does in myview threaten irreparable harm to petitioner [George W. Bush], and to the country, bycasting a cloud upon what he claims to be the legitimacy of his election.” Moreover,“permitting the count to proceed on that erroneous basis will prevent an accurate recountfrom being conducted on a proper basis later, since it is generally agreed that eachmanual recount produces a degradation of the ballots, which renders a subsequent recountinaccurate.” Justice Stevens wrote an opinion dissenting from the stay, joined by JusticesSouter, Ginsberg, and Breyer: Counting every legally cast vote cannot constitute irreparable harm. On theother hand, there is a danger that a stay may cause irreparable harm to [Vice-President Gore]--and, more importantly, the public at large--because of the riskthat “the entry of the stay would be tantamount to a decision on the merits infavor of the applicants.” Preventing the recount from being


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