Back essay by Carl Pridemore
You know the outcome. Have you read the briefs to learn the support for the ruling? Here are some excerpts from the ruling and their sources. BushvGore Wiki BushvGore UMKC BushvGore Oyez
From The Majority
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 question before us, however, is whether the recount
procedures the Florida Supreme Court has adopted are consistent
with its obligation to avoid arbitrary and disparate treatment of
the members of its electorate.
The formulation of uniform rules to determine intent based on
these recurring circumstances is practicable and, we conclude,
necessary.
Broward County used a more forgiving standard than Palm Beach
County, and uncovered almost three times as many new votes, a
result markedly disproportionate to the difference in population
between the counties. In addition, the recounts in these three
counties were not
limited to so-called undervotes but extended to all of the
ballots. The distinction has real consequences.
we are presented with a situation where a state court with the
power to assure uniformity has ordered a statewide re-count with
minimal procedural safeguards. When a court orders a statewide
remedy, there must be at least some assurance that the rudimentary
requirements of equal treatment and fundamental fairness are
satisfied....
[Florida's] statute, in turn, requires that any controversy or
contest that is designed to lead to a conclusive selection of
electors be completed by December 12. That date is upon us, and
there is no recount procedure in place under the State Supreme
Court's order that comports with minimal constitutional standards.
Because it is evident that any recount seeking to meet the
December 12 date will be unconstitutional for the reasons we have
discussed, we reverse the judgment of the Supreme Court of Florida
ordering a recount to proceed.... It is so ordered
From OYEZ.ORG
Noting that the Equal Protection clause guarantees individuals
that their ballots cannot be devalued by "later arbitrary and
disparate treatment," the per curiam opinion held 7-2 that the
Florida Supreme Court's scheme for recounting ballots was
unconstitutional. Even if the recount was fair in theory, it was
unfair in practice. The record suggested that different standards
were applied from ballot to ballot, precinct to precinct, and
county to county. Because of those and other procedural
difficulties, the court held that no constitutional recount could
be fashioned in the time remaining (which was short because the
Florida legislature wanted to take advantage of the "safe harbor"
provided by 3 USC Section 5). Loathe to make broad precedents, the
per curiam opinion limited its holding to the present case.
Rehnquist (in a concurring opinion joined by Scalia and Thomas)
argued that the recount scheme was also unconstitutional because
the Florida Supreme Court's decision made new election law, which
only the state legislature may do.
