Bush vs. Gore: Why The Votes Should Have Been Counted

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Josh Hanlon
January 11th, 2013
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...
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