California Bar Journal
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The self-inflicted wound
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Erwin ChemerinskyThe 2000 presidential election will be forever remembered as having been decided by one vote: in a 5-4 decision, five conservative Republican Supreme Court justices handed the election to the Republican candidate, George W. Bush. Few decisions in American history have done more to tarnish the Court’s image than Bush v. Gore.

In this essay, I make three points.   First, under well-established justiciability doctrines, the Court was wrong to take and decide the case when it did.  Second, the Court’s order on Saturday, Dec. 9, staying the recount in Florida, was outrageous because the legal requirements for a stay were not met. Third, the Court’s 5-4 decision on the merits relied on legal principles that have no basis in precedent and factual premises that have no evidentiary support.

The Court Was Wrong to Take Bush v. Gore

The Supreme Court ruled in favor of Bush on the ground that counting ballots without a specific standard violates equal protection because of the likelihood of inconsistencies.  But the Court ignored that this claim was not ripe for review and that Bush did not have standing to raise it. Ripe-ness and standing are constitutional principles derived from Article III of the Constitution. Because they are jurisdictional, federal courts are required to raise them even if the parties do not. 

Bush’s equal protection argument was an “as applied,” not a “facial,” challenge.  Bush’s claim was not that Florida’s election law was unconstitutional, but rather, that the recount as actually done would lack equality.  But this could not be known until the count was completed.   Indeed, it is quite possible that after the counting was done, and after the state trial court judge ruled on all of the objections, there would have been few disparities.

More profoundly, it is possible that Bush would have remained ahead even after the counting.  The Court’s decision in Bush v. Gore was thus an impermissible advisory opinion in violation of Article III of the United States Constitution.

Also, and separately, Bush lacked standing to raise the equal protection issue.  The law is clear that a party only may present injuries that he or she suffers.   Bush was not in any way denied equal protection; there was no allegation or evidence that those counting the ballots were discriminating against him.  Perhaps the Court assumed that Bush had third-party standing to raise the claims of voters, but the case did not fit under either of the exceptions that permit such standing; there was neither a close relationship to the injured third parties nor reason to believe that they could not raise their own claims. 

There is not a word about any of this in the Supreme Court’s opinions.  The Supreme Court, in its haste to decide the presidential election, disregarded these basic doctrines.

The Stay Order Was Wrong

Perhaps the Court’s most egregious action in the entire saga was its order, on Saturday, Dec. 9, staying the recount in Florida.  The law is clear and long-established that the Supreme Court may halt another court’s order only if the person seeking the stay demonstrates that he or she would suffer an “irreparable injury” without one. 

There was no plausible basis for the Supreme Court to have found such an irreparable injury to Bush in allowing the ballots to be counted while the case was pending before it.  Justice Antonin Scalia released a short concurring opinion stating that there was “irreparable harm.” His reasons, though, are specious. First, Scalia said “the counting of votes that are of questionable legality does in my view irreparable harm to [Bush] by casting a cloud on what he claims to be the legitimacy of his election.”   What, then, according to Scalia is the harm to Bush? The claim is that if the recount puts Gore ahead, but the Supreme Court invalidates the recount, then Bush’s victory will lack legitimacy. 

But the irony is that now Bush’s election will be robbed of its legitimacy because it resulted from a Supreme Court order that kept the votes from being recounted.  Much of the public will perceive the Supreme Court’s 5-4 ruling to halt the recount, split entirely along ideological lines, as an act of partisan politics to give Bush the election. Justice Scalia professed to be concerned about legitimacy, but he ignored how the Court’s action will harm the credibility of both the Supreme Court and the Bush presidency.

Besides, ultimately, someday soon, all of the ballots in Florida will be recounted and even though it will be too late to affect the election, the results in Florida will be known. If Bush is the loser, under Scalia’s reasoning, his election then will be deprived of legitimacy anyway. 

The Supreme Court gets to decide whether the recounted votes are included in the tally, but it cannot and should not try to control public perceptions.  Stopping the recount to enhance the public’s view of a Bush victory is just not an appropriate role for the Supreme Court.

Second, Justice Scalia argued that allowing the recount to occur now could prevent a proper recount later because “it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.” This is a factual question decided by Justice Scalia without any evidence whatsoever. More importantly, this argument ignores the reality that it was now or never for a recount that matters in this election; Justice Scalia halted the recount so as to protect a mythical recount that never could occur in time to meet the Tuesday, Dec. 12, deadline that the Court emphasized in its subsequent decision.

The simple reality is that Bush would have suffered no irreparable injury by allowing the recount to continue pending a Supreme Court decision, while Gore incurred an irreversible harm by stopping the recount. Under traditional legal principles, the Supreme Court’s stay order is indefensible.

The Court Was Wrong to End the Recount

The Court’s final ruling, on Dec. 12, to end the recount had no basis in law or fact. The majority opinion for the Court gave two reasons for ending the recount.

First, the Court said that equal protection would be violated by manual recounting without uniform standards to prevent inconsistencies as to what counts as a vote. Second, the majority said that there was not time to develop such standards and conduct the counting.

As to the equal protection argument, never before has the Supreme Court ruled that variations within a state in counting votes is unconstitutional. The reality is that there are many inconsistencies within Florida and every state. The Court failed to explain why differences in counting are unconstitutional while other variances among counties, such as in their voting machines, their ballots, and their treatment of minority votes is permissible.

Moreover, the Supreme Court was wrong in saying that there was not a uniform standard for counting votes.  As the Florida Supreme Court stated, the rule in Florida is that a ballot should be counted if the intent of the voter is clear. A significant number of states use exactly this standard.  This rule is no more vague than countless others in the legal system, such as the need for proof beyond a reasonable doubt in a criminal case.  Besides, there was a procedure to create uniformity in Florida: review by a judge to resolve all disputes.

Even more troubling, as to the second issue, the Court offered no persuasive rationale for ending the recount. Equality could be achieved in two ways: stopping to count or having it continue with uniform standards.  The Court’s majority opinion said that there was no time to complete the count by the Dec. 12 deadline. But the electoral college does not vote until Dec. 18 and the Court did not explain why setting standards and conducting the count would take longer than that. Even worse, the Court offered no reason for not even trying to have the count done with uniform standards.


The Supreme Court’s actions prevented the outcome of the election in Florida from being known. Someday soon, when historians examine and count the ballots, we may learn that the Supreme Court handed the election to the candidate who lost Florida, as well as the popular vote nationally.

The Supreme Court failed America.  

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California School of Law.