Disputed Presidential Election of 2000

I

INTRODUCTION

Disputed Presidential Election of 2000, controversy regarding the outcome of the 2000 United States presidential election that took five weeks to resolve. The controversy involved Texas governor George W. Bush, the candidate of the Republican Party, and Vice President Al Gore, the Democratic Party contender. The primary setting for the dispute was the critical state of Florida, which each candidate needed to win. Bush won such a narrow election night victory there that it triggered an automatic statewide re-count of the votes. It also led to a flurry of charges, countercharges, and lawsuits challenging the fairness of the contest. The battle for Florida went all the way to the Supreme Court of the United States before Bush was declared the winner. Along the way, the dispute raised fundamental questions about the integrity of the democratic process, from the effectiveness of the voting machines and the legitimacy of the electoral college system to whether African Americans in Florida were discouraged from voting.

II

ELECTION NIGHT

Besides Gore and Bush, the frontrunners in the 2000 election, the other major presidential candidates were Ralph Nader of the Green Party and Pat Buchanan of the Reform Party. The race between Bush and Gore was expected to be extremely close. Bush held a small lead in most national polls, but some reports indicated that his margin was dwindling in the final days. In a presidential election, most of the public’s attention is focused on the popular vote—the raw number of votes cast. However, political strategists are more concerned with electoral votes—that is, the number of votes a candidate will get in the electoral college. Before an election, political parties in each state nominate a group of electors for their presidential candidate. In most states, the party whose candidate wins the most popular votes sends its electors to cast the state’s electoral votes for the candidate; in Maine and Nebraska, electoral votes can be divided among candidates depending on the proportion of the vote they received. The electoral college convenes to vote about a month after the election. Every state gets one elector for each of its national senators and representatives, and the District of Columbia gets three. A candidate must receive 270 electoral votes to win the presidency. Florida, with 25 electoral votes, was critically important to both candidates in the 2000 election.

Throughout election night, November 7, and into the early hours of the next day, the presidential race in Florida was too close to call. As in past elections, news organizations were planning to project the winner in each state after the polls closed. They relied on statistical models that combine historical trends, analysis of sample precincts, and exit polls—polling of people after they have voted. At around 8 pm Eastern Standard Time, news organizations projected Gore as the winner of Florida, but a couple of hours later, they retracted that call and said the state was still undecided.

Shortly after 2 am, the major networks declared Bush the winner, and Gore called the governor to concede the election. But as Gore prepared to address his supporters in Nashville, Tennessee, Bush’s margin in Florida began to shrink. About an hour later, it was clear that the final tally in the state would be so close—less than one-half of one percent—that it would trigger a state law requiring a re-count. Vice President Gore called Bush and retracted his concession. Americans woke up the next morning to an extraordinary situation—the presidential election was still undecided. Gore had narrowly won the national popular vote. But with Florida undecided, neither candidate had the 270 electoral votes necessary to win. Gore had 266 electoral votes, and Bush had 246. Whoever won Florida would win the presidency.

III

THE DISPUTE BEGINS

Bush clung to a lead of just a few thousand votes out of 6 million ballots cast in Florida as state officials began a machine re-count. Both campaigns sent teams of high-powered lawyers to the state. Gore attorneys investigated reports of irregularities that seemed to raise questions about the fairness of the election. Many of the disputes revolved around arcane, but legally critical, technical flaws in the voting process.

In Palm Beach County, there was a confusing two-page “butterfly ballot” that had names down the left and right sides with punch holes in the middle. It resulted in about 19,000 people selecting more than one presidential candidate. It also gave ultraconservative presidential candidate Patrick Buchanan several thousand votes in an area that is generally liberal and likely to vote Democratic.

In other areas throughout Florida, reports emerged that some African Americans were denied the right to vote because their names were incorrectly removed from the official lists of eligible voters or their voter registration applications were not processed correctly. Others were discouraged from voting because of long lines or unhelpful election officials. In addition, some people claimed that many voting machines in predominately African American precincts were old and did not function properly. A computer analysis of the voting by the Washington Post newspaper indicated that percentages of spoiled ballots were higher in those African American precincts.

The Gore team also focused on heavily Democratic counties in south Florida where voters reported problems. Miami-Dade and Broward counties recorded thousands of so-called undervotes, where punch card ballots did not register a selection for president when they were run through the counting machines. Democrats suspected that when voters used the pointed stylus on the ballot, the perforation, or chad, did not fall away cleanly. It was left either dangling or merely dimpled. Democratic lawyers believed that re-counting those ballots by hand, a process known as a manual re-count, might reveal which candidate the voters intended to choose. They thought that it might show many voters who intended to choose Gore—possibly enough to change the election results.

The machine re-count cut Bush’s lead to 327 votes. On November 9, the Gore campaign asked election officials for hand re-counts in four counties—Broward, Miami-Dade, Palm Beach, and Volusia. The Bush campaign asked a federal court in Miami to block the re-counts. The Bush team argued that manual re-counts were unfair because they used a subjective standard unlike the automated machine re-counts.

Although the court refused to block the re-counts, Bush still enjoyed a significant advantage. State law required that counties certify (declare official) election results within seven days of the election. It was clear that the manual re-counts would not be finished by the November 14 deadline. In Florida, the secretary of state, Katherine Harris, would oversee the certification process. A Republican and Bush supporter, Harris emerged as a key player in the re-count controversy. Harris refused to extend the certification deadline to include the results of the manual re-counts. She maintained that only machine malfunction or natural disaster, not voter error (that is, wrong holes punched or hanging or dimpled chads) could compel manual re-counts. Only overseas absentee ballots would be counted after November 14, but they had to be received by November 19.

Gore’s lawyers asked a state circuit judge to block Harris from requiring election results by November 14. The judge upheld Harris’s authority to certify on that date. However, he also said the four counties in question could file amended returns after the deadline and Harris could use her discretion to decide whether to accept or reject them. Again, Harris said she would reject late filings. On November 17, however, the Florida Supreme Court stepped in and ordered Harris not to certify the election results before a hearing on November 20.

IV

THE FLORIDA SUPREME COURT

The Florida Supreme Court had a reputation as being liberal and activist, and Republicans feared it would extend the certification deadline to include the manual re-counts. At oral arguments on November 20, the justices seemed to be most interested in one issue: At what point did allowing re-counts risk making Florida too late to participate in the electoral college vote? Gore’s lawyers, led by David Boies, argued that the state had until December 12 to pick its electors, which allowed plenty of time for the re-counts. Electors from each state would meet on December 18 to cast their votes.

The next day the court ruled unanimously for Gore and granted a five-day extension for manual re-counts, until Sunday, November 26, at 5 pm. “The will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases,” the justices wrote. The next day, the Bush campaign asked the United States Supreme Court to hear its appeal of the Florida high court ruling. The U.S. Supreme Court agreed to hear the case in early December.

The re-count process was slow, tedious, and fraught with disputes. Each county used a different standard in evaluating undervotes. Workers struggled, sometimes with magnifying glasses, to divine the intent of the voters. Lawyers for each candidate and representatives for each party were on hand to protest decisions that they did not like. On November 22, the Miami-Dade re-count descended into chaos. When county officials attempted to move to a smaller workroom, Republican protesters pounded angrily on doors and windows because the smaller room limited the number of observers. The county canvassing board stopped the re-count, saying it was impossible to finish by the deadline. However, it denied that the protests had influenced the decision. It was a blow to Gore because he had already seen a net gain of about 150 votes in that county.

In Palm Beach County, canvassers struggled to meet the 5 pm deadline on November 26, but it was clear they would fall short by a few hours. The board asked Harris to extend the deadline until 9 am the next day, but she refused. Instead she took the set of returns compiled before the re-count. That evening, in the state Capitol’s cabinet room, Harris certified the election results and declared Bush the winner of Florida, with 2,912,790 votes to Gore’s 2,912,253. It was a difference of just 537 votes but it was enough to give Bush Florida’s 25 electoral votes and thus the presidency. Gore’s lawyers immediately filed a legal contest in state court to protest the certified results.

V

THE SUPREME COURT OF THE UNITED STATES

With certification, Bush had taken a big step toward securing a presidential victory. But now he faced a huge decision: whether to continue his U.S. Supreme Court case challenging the Florida high court’s decision to extend the original certification deadline and allow manual re-counts. If the Supreme Court upheld the deadline extension, Bush would likely be at the mercy of any new decisions from the Florida court resulting from Gore’s contest of the certified tally. But Bush, believing that the Florida Supreme Court should not have extended the certification deadline, decided to continue to the U.S. Supreme Court.

On December 1, the Supreme Court heard 90 minutes of oral argument from both sides. Bush attorneys, led by Theodore Olson, contended that the Florida court effectively rewrote the state’s election laws by extending the certification deadline—something that only the state legislature could do. Gore lawyers argued that in such an extraordinarily close race, a re-count was the only way to ensure that the will of the people was represented. The justices asked many questions and left legal experts with the strong impression that they remained as divided over the matter as the rest of the country.

Meanwhile in Florida’s capital of Tallahassee, the Gore team was contesting the election results before Leon County Circuit Judge Sanders Sauls. Its main goal was to secure the re-count of about 14,000 disputed ballots from Palm Beach and Miami-Dade counties that they said could change the outcome of the election. Gore attorneys had little confidence that they could win their fight in front of Sauls, a Republican appointee. They decided to move through the trial as quickly as they could so they could file their appeal with the Florida Supreme Court, which had proven itself more sympathetic. Bush lawyers wanted to slow down the proceedings. They wanted to move the calendar as close as they could to December 12, the deadline for the state to choose its electors. Sauls impounded the ballots in question and had them shipped to Tallahassee in a Ryder truck, an odyssey covered live by television cameras traveling overhead in helicopters.

On Monday, December 4, the U.S. Supreme Court set aside the Florida Supreme Court’s decision extending the certification deadline. In essence, the justices asked the Florida court to explain its ruling. That same day, Judge Sauls ruled against Gore’s bid for further hand re-counts, asserting that Gore failed to show any “reasonable probability” that additional counting would change the outcome of the election.

Gore’s situation was looking bleak, although another pair of critical court cases seemed to offer real, if slender, hope. These cases were lawsuits in Martin and Seminole counties, which charged that county election supervisors had allowed local Republican officials to illegally complete unfinished absentee ballot applications.

VI

THE DISPUTE ENDS

The Florida Supreme Court agreed to hear Gore’s appeal of Sauls’s ruling. But with the December 12 deadline looming larger, the court allowed just a day for filing briefs and one hour of oral arguments on December 7. Facing the Florida high court for a second time, Boies argued that under state law the intent of the voter is all-important. The only way to determine intent was to do a manual re-count of the disputed ballots. Bush’s lawyer, Barry Richard, argued that the manual re-count was unjustified because no machine errors had been reported.

On Friday, December 8, judges in the Martin and Seminole county cases ruled that although irregularities existed in local election procedures, the ballots cast still accurately reflected the will of the voters. But the same day, the Florida Supreme Court, by a 4 to 3 vote, ordered a statewide manual re-count of about 42,000 undervote ballots. The court also awarded Gore 383 votes from the previous re-counts in Palm Beach and Miami-Dade counties that Secretary of State Harris had refused to include in her certification, cutting Bush’s lead from 537 to 154.

Bush’s legal team immediately asked the U.S. Supreme Court to halt the re-count until it could file an appeal. The next day the U.S. Supreme Court issued a stay stopping the re-count until it could hear the case. In deciding to hear the appeal, the conservative wing of the court, led by Justice Antonin Scalia, signaled strongly that Bush was likely to prevail. Scalia wrote that “a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success.”

The long months of campaigning and the extraordinary five-week fight for Florida all came down to 90 minutes of oral argument in front of the U.S. Supreme Court on December 11 in George W. Bush and Richard Cheney v. Albert Gore, Jr., et al. Bush’s lawyer, Theodore Olson, argued that time was running out for the state to choose its electors by December 12. He also said that the manual re-counts authorized by the Florida Supreme Court violated the equal protection clause of the Constitution. Specifically, when counties used different standards to evaluate disputed ballots, they were treating voters differently. Boies, Gore’s lawyer, again argued that intent of the voter is paramount in Florida law and the only way to determine that intent was to manually re-count the disputed ballots.

The next evening, the court effectively ended the 2000 presidential election. In a 5 to 4 vote, it ruled that there would be no further re-counting of the disputed Florida ballots. The majority opinion stated that using multiple methods to re-count votes in various counties was unconstitutional because it violated the equal protection clause. In addition, the opinion stated that it was impossible to come up with a legally acceptable standard of how to manually re-count the ballots by the December 12 deadline. In issuing its decision, the Court split along partisan lines. The five justices who found in favor of Bush were Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Anthony Kennedy, Clarence Thomas, and Scalia. They were all nominated by Republican presidents and were generally considered the more conservative members of the Court.

The four dissenters were Stephen Breyer, David Souter, Ruth Bader Ginsburg, and John Paul Stevens. Some of the minority opinions were bitter in their opposition. Stevens wrote that the Court’s decision “can only lend credence to the most cynical appraisal of the work of judges throughout the land.” He also noted that “the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

The next morning, Gore’s campaign chairman, Bill Daley, called his Republican counterpart, Don Evans, to say that Gore would concede in a televised message that evening. The election was over. Bush had won the election to become the 43rd president of the United States, receiving 271 electoral votes to Gore’s 266. However, Gore won the national popular vote by more than 500,000 votes out of 105 million cast.

VII

REACTION AND EFFECTS

The country was deeply divided on the outcome of the Florida election dispute. Many Americans felt that Gore should have conceded much earlier instead of pursuing legal action. They argued that Bush was the rightful winner each time the votes were counted. Other Americans felt that the U.S. Supreme Court never allowed all the votes to be counted. Many were simply relieved that the whole spectacle was over. Many others were disappointed in the U.S. Supreme Court because they thought the court was supposed to be above political battles. In a poll taken by the Wall Street Journal right after the Supreme Court decision, 53 percent of those surveyed saw the ruling as politically motivated.

During and after the election dispute, some Americans argued that the electoral college system should be abolished. They did not feel that it was fair that a presidential candidate could win the national popular vote and still lose the election. However, others noted that the system gave a voice to smaller states by providing a minimum of three electoral votes for each state regardless of its population.

The ripple effect from the Florida election dispute will likely be felt in American politics for years to come. A panel was convened in Florida to investigate ways to improve the state’s election process. In addition, the National Association for the Advancement of Colored People (NAACP) and other civil rights organizations filed lawsuits against the state of Florida and seven counties. The lawsuits alleged that some African American voters were discouraged from voting, either by poor machinery or bureaucratic barriers, or even denied the right to vote because their names were missing from the official lists. In 2001 the Florida legislature passed the Florida Election Reform Act, which prohibited punch card ballot machines, provided for a uniform statewide ballot design, and set standards for reviewing ballots during a manual re-count. In addition, some of the Florida counties settled the lawsuits against them.

The U.S. Congress has pledged to consider various voting reforms. It has also promised to scrutinize the role of television network coverage on election night—their botched projections of the Florida vote and the whole practice of calling election results state by state. Some people argued that when the news organizations incorrectly called Gore the winner in Florida, they might have influenced voters who had not voted yet.

Some news organizations, including the New York Times, the Wall Street Journal, and the Washington Post, set out to conduct their own re-count of the Florida votes for historical interest. Their review produced mixed findings: If Gore’s request for a re-count in Broward, Miami-Dade, Palm Beach, and Volusia counties had been successful, Bush still would have won the majority of the votes. If a full statewide re-count of the undervotes had been done, as ordered by the Florida Supreme Court but halted by the U.S. Supreme Court, Bush would also have received the most votes. If Gore had requested a full re-count of all the disputed votes statewide, both undervotes and overvotes (where a voter selected more than one candidate), he would have received the majority of the votes. But Gore never requested a full statewide re-count.

Some people speculated that the disputed election would affect Bush’s presidency and the public perception of his legitimacy. However, after the terrorist attack against the United States on September 11, 2001, much of that speculation ended as support for the president increased (see September 11 Attacks).