Re: Bush v. Gore
Bush v. Gore presented many issues, one of which was whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5 and whether the use of standardless manual recounts violated the Equal Protection and Due Process Clauses. With respect to the Equal Protection question, the Supreme Court found a violation of the Equal Protection Clause.
The Court reasoned that the right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). The right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. Reynolds v. Sims, 377 U.S. 533, 555 (1964).
The Supreme Court felt that the Florida Supreme Court ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it was, for them, not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote was and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court did not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right. Florida’s basic command for the count of legally cast votes is to consider the “intent of the voter.” Gore v. Harris, So. 2d, at (slip op., at 39).
The votes certified by the Florida court included a partial total from one county, Miami-Dade. The Florida Supreme Court’s decision thus gave no assurance that the recounts included in a final certification must be complete. However, the Supreme Court reasoned, a desire for speed is not a general excuse for ignoring Equal Protection guarantees.
The Court ultimately believed that the recount could not be conducted in compliance with the requirements of Equal Protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise.
