The Supreme Court should NOT have decided Bush v. Gore. Did it matter for who became our President? Does it matter for our future?

Posted By: Nancy Craig, Christopher Dan, DesiRae Deschine, Torey Dolan, Chance East, and Richard Edwards

USSC_justice_group_photo-2005_currentThe 2000 presidential election was hotly contested and controversial.  In a result similar to what happened in our most recent presidential election, the candidate who ultimately became President of the United States did not receive the majority of votes cast.  According to the Federal Election Commission’s website, Al Gore received 50,999,897 votes to George W. Bush’s 50,456,002.  Those who are not familiar with the Electoral College might see those vote totals and conclude Al Gore won the election.  In fact, George W. Bush won the election and went on to serve eight years as President.  The story of how that happened involves the Electoral College, the State of Florida, and our nation’s highest court.

The Electoral College is a system of voting that allots a particular number of votes to each state and the District of Columbia.  The total number of electoral votes is 538 and a candidate must receive 270 of those votes to win the election.  The Supreme Court case Bush v. Gore is especially noteworthy because, with all other states’ votes counted, it determined which candidate was awarded the 25 electoral votes from the State of Florida.  Based on the Court’s decision, Bush received those votes and his total reached 271 (surpassing the threshold by just one vote).  Had those 25 votes been awarded to Gore he would have defeated Bush by a count of 291 to 246 (one voter from the District of Columbia abstained).

Bush v. Gore is a landmark case, not so much in its outcome as in its origin because a conservative Supreme Court chose to hear a case that had an immediate impact on the outcome of the presidential election.  Here we discuss the political question doctrine in determining whether the Supreme Court was justified in in its decision to hear the case. Then we look to the Constitution itself within its historical context, specifically Article II and the Twelfth Amendment, to determine their role in the event of no clear winner presidential winner. Then, we move to the composition of the late 2000 Congress to learn what result there would have been, had the Court not intervened. Finally, we examine the potential damage from Bush v. Gore in the future.

The issue presented to the Supreme Court in Bush v. Gore was clearly a political question and the justices should not have allowed their party affiliations to usurp Congressional authority.

The Supreme Court should not have heard Bush v. Gore because Bush sought an answer to a clear-cut political question. It should have dismissed the case and allowed the controversy to play out in the already-established channels of the political process. In refusing to employ the political question doctrine, the Supreme Court wrongfully usurped delegated Constitutional power from other branches of the government and, ultimately, from the people of the United States.

The political question doctrine prevents the Supreme Court from hearing certain types of cases. A case involving a political question is not necessarily defective in terms of its form. Instead, the Court dismisses this type of case because of its very political content even if all other justiciability requirements are satisfied. In doing so, the Court avoids overstepping its role and adheres to the division of powers envisioned by the Framers of the Constitution. Simply put, “[t]he nonjusticiability of a political question is primarily a function of the separation of powers”. Baker v. Carr.

Crystallized in the landmark case of Baker v. Carr, a political question includes any of the following criteria:

[A] textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; to an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

        Id. at 217

Seeing as this list of factors appears in the disjunctive, a political question does not necessarily require all the above features. In fact, just one of these features in a claim produces a political question, thereby demanding dismissal from the Court. When analyzing whether a political question exists within Bush v. Gore, one does not even need to dive very deep into the list of Baker v. Carr factors. In calling for the Supreme Court to intervene into a vote recount controversy, Bush v. Gore directly confronts a “textually demonstrable constitutional commitment of the issue to a coordinate political department” embodied in the Twelfth Amendment.

The Twelfth Amendment, in detailing the Electoral College and the process of determining the Presidential election, states that “[t]he President of the Senate shall, in the presence of the Senate and House of Representatives, open all certificates and the votes shall then be counted.” In reciting the basic operation of the Electoral College, the text makes no mention of any role for the federal judiciary. In fact, the Twelfth Amendment routinely assigns every responsibility of concluding the Presidential election to members of Congress. Most illustrative of the constitutional commitment appears when the amendment describes what to do if no candidate secures a majority of the electoral votes. In this scenario, the Twelfth Amendment tasks the House of Representatives with the responsibility of selecting for the President. Again, the Twelfth Amendment is consistently silent on involving the Supreme Court in any role when determining the results of a contested Presidential election.

Thus, if Florida was unable to get its act together and finalize the recount, neither Bush nor Gore would have had a clear majority. This is the exact situation envisioned by the Twelfth Amendment. Thus, the Supreme Court had no right to override the political process as set forth in the Constitution. An issue like Bush v. Gore is already a responsibility of a coordinate branch of the government, i.e., Congress.

The Historical Context of the Twelfth Amendment

The Twelfth Amendment mentioned above was devised as a direct result of deficiencies in its predecessor, Article II. Under Article II, presidential candidates did not run alongside a vice presidential candidate. Rather, each elector would cast two votes when electing a president. One of those two must have been for a candidate from a state other than that elector’s. Whoever received the most votes would become President. Whoever came in second would become Vice President.

When political parties unexpectedly emerged under this Electoral College format, a defect reared its ugly head in the election of 1800. Each Democratic-Republican elector casted both their votes for both the Democratic Republican presidential candidates- Thomas Jefferson and Aaron Burr. Voting along party lines resulted in both candidates securing 73 electoral votes a piece, resulting in no majority. Under Article II, the decision was sent to the House of Representatives to break the stalemate. Each state delegation in the House had one vote to cast between the candidates. A majority of state votes were needed to determine the winner. In 1800, neither candidate could gain a majority of the States during the House tiebreakers. At this impasse, the House decided to vote again… and again… and again. After 7 days of heated, contentious debates leading the young nation to the brink of a constitutional crisis without an elected leader, Jefferson eked out a victory on the 36th round of voting in the House.

To address the Article II defect that arose in the 1800 Election, Congress adopted the Twelfth Amendment which introduced numerous changes to the Electoral College and the presidential election. One change saw the separation of President and the Vice President. Coupled with a distinct Vice President, the Electors, rather than casting two votes for President, cast one for President and one for Vice President. In the result of a deadlocked electoral count, the vote again went to the House of Representatives. If a deadlock remained in the House, however, the elected Vice President “shall act as President, as in the case of the death or other constitutional disability of the President.” U.S. Const. amend. XII.

Due to this earlier controversy in our Nation’s history, a contested presidential election like the 2000 election between Bush and Gore was already contemplated and anticipated by the Constitution. The Twelfth Amendment was specifically designed for a presidential election without a clear majority winner. If there was a question regarding Florida’s electoral votes at their due date, our nation already had a prepared answer. The new sitting congress are the ones who vote on the new president.

What if?

If the vote had gone to the House, like it should have, George Bush would still have won the presidency. This can be simply deduced by looking at the composition of the House of Representatives, by state and by party, to predict how each state vote would have gone.

One thing you can count on in American politics, is Congressional Representatives toeing the party line. For the sake of this inquiry, we will extend that assumption to voting for the President under the Twelfth Amendment. Each state only has one vote. Thus, the state must come to some kind of a conclusion. Let’s assume for each state that the vote will be cast based for the partisan majority of the state’s representatives. By counting the representatives in each state by party affiliation, we can predict each state’s vote and the winner.

In the new House after the election, twenty-eight states were controlled by the Republican party and seventeen were controlled by the Democrats. Vermont was the one Independent State with the liberal leaning Bernie Sanders as the sole Representative. There are four states (Connecticut, Illinois, Maryland, and Nevada) that would have a split vote because the parties both controlled an equal amount of seats. Excluding their votes, Bush still had the majority of states. Even construing the states in a Gore-friendly manner, Gore’s twenty-two states still would have fallen short of Bush’s twenty-eight.USA_Presidential_Election_Results_20170222_dws

In the event of a stalemated Electoral College, the House vote needs to be done by March 4th under the twelfth amendment, but that is modified to January 20th by the twentieth amendment. The new congress sits on January 3rd, and that is the first-time congress sits after the house votes.

The House would have given the exact same conclusion as what the Court ended up creating. They took the case as a way to expedite the process of determining who was the incoming president. This case not only interfered with the executive branch by putting in a new sitting President, the chief of the executive branch, but also took a constitutionally mandated duty of the House away from them.

Bush.v.Gore_TableBush would win- 28 states most likely to vote for Bush, 4 tied seats, 18 Gore.

Looking Forward

The general election did not produce a clear winner without a clear result from Florida. Theoretically, this is the exact situation that would prompt the vote to go to the House of Representatives in accordance with the Twelfth Amendment. The Court’s circumvention of the Twelfth Amendment could have been useful but ultimately it did more damage than it was worth in light of the fact that a vote from the House would have produced the same result.

The importance of structure in our constitutional republic cannot be understated. In light of history, the court has damaged the soundness of the bench going forward. In Justice Breyer’s dissent he wrote “But we do risk a self-inflicted wound – a wound that may harm not just the Court, but the Nation. I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary ‘check upon our own exercise of power,’ ‘our own sense of self-restraint.’” Bush v. Gore, Breyer Dissent The separate branches of government are not a byproduct of the Constitution, they are the core of it. Bush v. Gore was a controversial decision after a contentious election, moments like that are when we need to respect the separate branches the most as they provide fortitude in political storms.

The Supreme Court has set a dangerous precedent in the event of future Electoral College disputes.

The Court elevated its authority over fourteenth amendment issues over Congress’ authority to resolve Electoral College stalemates, as enumerated in Article II and the Twelfth Amendment. George Bush likely would have been president irrespective of their decision. If the vote had gone to the House of Representatives, would the process have been longer? Yes. Would it have been chaotic? Maybe. Would it have been constitutional? More so than what the Court has given us. Bush v. Gore should not have been granted cert for the aforementioned reasons.

The Supreme Court should NOT have decided Bush v. Gore. Did it matter for who became our President? Does it matter for our future?