After the ballots were counted in the 2000 presidential election, Al Gore was leading George W. Bush in the popular vote, and Gore was also leading in the electoral college vote. But the Florida vote was so close (Bush leading, but with a margin of less than 0.5 percent) that Florida law required a machine recount. The machine recount narrowed Bush’s lead to 327 votes out of almost six million votes cast. Gore then requested a manual recount in four Florida counties, where there were widespread complaints of voting machine malfunction, such as “hanging chads” and “dimpled chads.” Florida law required a manual recount to be completed within seven days, leading three of the counties to request more time.
Florida’s Republican Secretary of State, Katherine Harris, refused. Gore fired a lawsuit, and after a flurry of legal claims and counterclaims, the U.S. Supreme Court agreed to review the case expeditiously.
The Court observed:
The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5 and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.”
On December 12, 2000, the Supreme Court, in a 5-4 “per curiam” (non-specially authored) decision, Bush v. Gore (531 U.S. 98, 2000), ruled that the Florida Supreme Court’s recount order was unconstitutional because it granted more protection to some ballots than to others, violating the Fourteenth Amendment’s Equal Protection Clause. The Court declared that the order contained standardless and unequal processes to divine the “intent of the voter” that were above and beyond the settled processes required by Florida election law.
George W. Bush became the de facto winner of the presidential contest. The five justices in the majority were all Republican appointees. In his dissent, Justice John Paul Stevens wrote:
What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, 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.
I respectfully dissent.”
The nation took the lesson to heart. In the 2016 presidential election, the ability to name justices to the Supreme Court became a major factor for voters in deciding between the two candidates.