Legal Case Brief – Bush v. Gore

Bush v Gore

Bush v Gore


Bush v. Gore over the counting of ballots in Florida.  Specifically, both parties are arguing for or against recounts in specific counties throughout Florida.  In addition, some disputes are over “under votes”, voter intent, vote inclusion and possible numerical issues in the count.

Procedural History:

Further problems come from the petition to and decision of the Florida State Supreme Court.  Parties petition the Court to review these anomalies and decide if additional time is required for a full recount.  Deciding so and granting such extension until December 12 results in further problems developing that cause rise for Federal Supreme Court review.

Issue Presented:

There are several issues to discern.  One, given the transpired events within Florida, can the disputes and recounts be undertaken without subjecting either party to violation of equal protection?  Two, is it entirely up to the state judiciary to supersede state legislation for election laws, regardless of issue?  Three, is it necessary for the Federal judiciary to interfere, given the uniqueness of a Presidential Election?


The majority holds that violation of equal protection is possible since there are no statewide, legislated, accepted processes or procedures for this type of voting disparity.  Further, the majority holds that state judiciaries cannot supersede legislative regulations and statutes.  Finally, the majority concludes that the federal Supreme Court may in fact step in to protect state legislature powers from state judiciary’s interference.

Rule of Law:

Article II: State legislatures may determine electoral representative selections in any way they see fit.  It must comply, however, with all federal elections policies.


As to issue ONE: No, equal protection clause cannot be upheld.  The current system does not adequately address recount discrepancies in a fair and uniform manner.  Further, there is no universally adopted system of discerning original voter intent from hanging chads, indentions, etc.  Further, to only count a section of the votes and add in the differences was not universal.  Finally, to count “under votes” did not consider “over votes”.

As to issue TWO: No, the state judiciary cannot supersede legislative regulations for voting.  Why?  Legislatures set statutes, guaranteed in Article II, that determine how they will choose Presidential Electoral candidates.

As to issue THREE: Yes, given the need to defend state legislature and its power to choose electors from inappropriate state judicial interference in order to protect the basic freedoms to those who control the legislature, the voters, under Article II of the Constitution.

Concurring/Dissenting Opinion:

Dissenting opinion contends that there is no harm to doing a full and total recount despite time concerns and constraints, as it is in the voters’ interests and in compliance with Florida statutes to deliver a valid final count and result.  In addition, the judiciary does not supersede the legislature.  It simply gave more time, given the conditions as they were happening (was necessary).  They did not change or reinterpret any laws, just allowed an additional window of time to promote the full fruition of state statutes to play out.  Finally, the Supreme Court has no business interfering in state affairs, even in a Presidential election.  The state legislature statutes and judiciary reviews should be allowed to play out.  Further, state legislatures will choose electors for the Electoral College and then any remaining issues would then be addressed by Congress, not the Supreme Court.  In other words, the Supreme Court is not to have a hand in the way a President is selected, no matter how small of a hand or issue presented.