Bush v. Gore

The Court's decision capped the most extraordinary period in U.S. presidential politics in more than a century. The November 7 contested election left Gore with 267 electoral votes—just 3 short of the 270 needed under the Constitution for election as president. (A Washington, D.C., elector later withheld her vote from Gore, reducing his total to 266.) Bush had 246 electoral votes coming out of the election. In doubt were Florida's 25 electoral votes, which would provide the margin of victory. There Bush had a slim advantage, and for five weeks lawyers and partisans for the two sides clashed in the courts, at local elections headquarters, and even in the streets.

Bush sought to preserve his slim lead by erecting legal roadblocks to the recounting of thousands of ballots that were in dispute. Needing every vote he could get, Gore demanded that all disputed votes be counted. However, he did not demand a statewide recount, a tactical error that enabled Bush forces to argue successfully that a partial recount would deny some Florida voters equal protection of the laws.

Throughout the ordeal, the nation and the world watched as election workers peered at ballots looking for signs of voter intent, and as judges struggled with Florida's sometimes conflicting laws to determine the state legislature's intent. It was the closest the United [Page p34]States had come to a constitutional crisis over a presidential election since 1876, when the Tilden-Hayes election dispute dragged on for months and was finally resolved by a contentious vote in the House of Representatives.

In the end Bush won because he had two important allies working in tandem: the calendar and the Supreme Court. Under a federal law enacted in 1887, a state's electors had to be selected by December 12 if they were to be free from challenge in the U.S. Congress. Although nothing in the law prevented electors from being selected after December 12—in 1960 Hawaii did not select its electors until January 4—the Bush team argued that the Florida legislature had intended December 12 to be the deadline for selecting electors.

Bush's attorneys then used every legal maneuver they could muster to prevent or delay voter recounts until this deadline had passed and it was too late to overturn the Bush lead. As the December 12 date approached, the final arbiter of whether additional votes would be counted was the Supreme Court, which for the first time found itself in a position to determine who would become president. On the key decision in the case of Bush v. Gore, the Court's five most conservative justices sided with Bush, the conservative candidate, and the four most liberal justices sided with Gore, the liberal candidate.

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