Home > Free Essays > Law > Constitutional Law > Role of Judicial Review: Bush vs. Gore
Cite this

Role of Judicial Review: Bush vs. Gore Research Paper

Introduction: Description of the dispute

Judicial review is a distinctive feature of constitutional law in the United States. This is The reason why the power held by federal courts to test federal and state legislative enactments and other actions can be overlooked by the supreme court which in most cases its faced by disagreements among the detractors and its supporters about its doctrines and its application.

The conduction of a presidential elections and declaring a winner is the most important decision to be made in a democratic state. As simple as it all sounds presidential election are complex processes.

The United States was a victim of the interesting interplay experienced between the executive and the judicial branches of government during the 2000 U.S. general elections.

This report describes and analyzes the role of judicial review in the outcome of the 2000 presidential results in America. The election results ended up being a court issue where the United States Supreme Court had to intervene and pronounced George W. Bush the winner even though the election was closely contested.

In this paper, I will seek to analyze the threat that was posed by the Bush V Gore case to the judicial procedures in this country whereby in the 2000 presidential elections provoked indifference between the running candidates and their supporters leading to a series of court procession to determine the outcome results. Americans turned out to take part in the elections through casting votes and following the vote the counting process.

However this was disrupted by the dispute that erupted as vote counting process came to a close in the state of Florida. The principal problem during the 2000 American presidential elections was the manner in which the votes were counted since the election victory hung upon a terribly close margin and the most challenged fight for Florida’s 25 electoral votes. According to many experts like Thayer views, there was no uniformity standards employed while in counting the different types of ballots across the nations for years.

The nature of balloting during an election in United States varies from state to state across the nation. The variation could be in terms of the size of areas in geographical measures or the number of people who are eligible and registered voters. How an individual will cast the vote is entirely a process that is overseen by the local officials because most of the voting systems are paid for locally.

They oversee the kind of equipment to be used and the forms of ballots to be used. Absent ballots which had not been counted in some jurisdictions were left out once, it was determined there were fewer absentee ballots than the difference in the vote between the two leading candidates. According to the Electoral College system, a candidate who wins the elections is considered to “take-all”,having been allocated all votes he/she is declared the victor.

On November 7, 2000, after the completion of a nationwide count of ballot papers records showed that Al Gore was in the lead against his opponent Bush with a total of 266-246 of the electoral votes. The winning candidate had to garner 270 electoral votes. At that time Florida had not yet concluded its voting outcome for the 25 electoral votes due to machine counting error.

But thereafter as soon as the machine count was over Bush was leading despite the minimal margin that was present, about 100 votes. After declaring Bush as the victor of the elections, Gore requested a manual recount of the ballots to be conducted in certain counties in the state of Florida and his request was backed by a number of state officials who including Florida’s Attorney General Bob Butterworth who headed the Democrats’ campaigns in Florida.

Reasoning of the court in the case

The Florida Supreme Court then extended the deadline for completion of recounts as they ordered a recount of the votes through the manual method for all the ballots which counting machines had not recorded to having any presidential choice. The precise legal claim presented by Bush was that he sorts a stay from the Florida Supreme Court order permitting an electoral recount of the ballots for the presidential elections.

The electoral voting turnout declared Bush the winner over his counterpart by a very small margin. The results of the counts then saw Gore seeking the Florida Supreme Court to order a manual recount of the votes because of the “under votes”. After examining the arguments presented by Gore the Florida Supreme Court ordered a recount to be conducted across the state of Florida.

This decision led to Bush appealing the judgment passed by the Florida Supreme Court to the United States Supreme Court arguing that their decision was violating the federal statute which requires electors to have finalized all the works at hand before the meeting at the Electoral College commenced. He was being represented by Theodore Olson who claimed that recounting of the votes was violating an equal protection clause that is presented in the fourteenth amendment of the United States constitution.

Bugh (2010) notes “the main issue was the questionable votes cast those for democrats’ who may have been confused by how the balloting was being conducted” The procedure for voting involved punching a hole next to an individual preferred candidate a procedure which many Democrats’ supporters complained of having been confused with the name placement of the candidates forcing many to vote for the wrong candidate.

Others claimed to have had a problem as the machines failed to make a hole at the correct sport and hence they were only able to indent their choice. Apart from these there are those people who voted for more than one presidential candidate amidst the confusion, sparking more controversies as to whether or not a vote recount could be conducted.

Why the decision was Problematic

Once the issue was presented to the legal institutions, it brought into light the use of policy in solving matters involving judicial decision-making (Cannon, 2000). According to the courts, procedures governing the manual count did not satisfy the minimum requirement for no arbitrary treatment of voters a clause found under the Equal Protection of the Fourteenth Amendment.

The Florida Supreme Court ordered a recount of the cast votes but the appeal of the case to U.S. Supreme Court verdict is that their decision is to overturn the decision taken by the Florida Supreme Court calling off the manual recounting of the votes.

This decision was the final rule by seven justices who pointed out the decision by the Florida Supreme Court to conduct a recount was an action that failed to observe the constitutional rights stating, “Because it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional … we reverse the judgment of the Supreme Court of Florida ordering the recount to proceed”

According to these justices, vote recounting in Florida did not meet the minimum requirement needed for non-arbitrary treatment of voters necessary to secure the fundamental right to vote (Bush v Gore, 121 S Ct 525, 530 (2000).

Justification for using judicial review

Courts are becoming major players in the political arena as demonstrated in the case Bush v. Gore. The intervention made by the United States Supreme Court in declaring the 2000 election victor made the institution become an object of political controversy. Those who opposed the decision ruled by the Supreme Court viewed the verdict as favoring one party, making the Court partisan.

According to these people (opposers), the courts helped Bush ‘steal the election’ while those proposing that the court had done its best based their argument on the fact that they considered their ruling with the help of legal considerations.

The main problem following the ruling of the case was the dissatisfaction of both those in the political field opposing the verdict and the supporters of Al Gore. “Justices are sometimes accused of targeting their partisan and ideological foes that makes them more liable to strike down laws passed by bipartisan majorities as by ideologically distant majorities” (Bugh 2010).

Another problem arising from the ruling of the case Bush v Gore was that the verdict suggested that the court was motivated by a particular kind of partisanship. A kind of which could not even be compared to the promotion of broad political principles through the development of constitutional doctrine.

In this case, it is clear that there is a difference between the commonly referred to as high politics played by political principle and the low politics of the partisan advantage. The Supreme Court ruled in favor of Bush 5-2 from voting that was carried out by justices who had before contributing to the revolutionizing of constitutional doctrines.

Hence it would be fair to note that during the case these justices were in a way obligated to promote a relatively consistent set of ideological positions which protected the state government process from being interfered with by the federal supervision. However the justices failed and instead they adopted whatever legal arguments they found favoring the Republican candidate George W. Bush. (Kelly 2003)

According to Mark Graber’s reasoning, the twenty first century has brought about a number of changes in U.S Supreme Court’s justices. The Supreme Court justices announced constitutional limits on federal and state power by declaring federal and state laws unconstitutional. There are statements that are used by legal officials to restrain federal and states officials routinely “we hold that the act exceeds the authority of congress”, or “we hold that the congressional veto provision in &244(c) (2)… is unconstitutional (INS v Chadha 462 U.S. 919 959(1983) (Brooks 2000).

The Supreme Court is able to declare a law unconstitutional if the cases are involved in limiting federal authority. This is the same right found in opinions striking down laws that enjoy substantial popular support and in opinions striking down laws of interest only to a few specialists. The same opinion is embraced by both the liberal and conservative justices asserting “this law is unconstitutional” when imposing constitutional limits on government power.

As the establishment of judicial review commenced, the Supreme Court acknowledged that the Marshall Courts made it easier for judicial review to be implemented by separating the law from the politics. It was important for America to establish and implement judicial review in both legal and political terms.

Before, Supreme Court justices would have an influence over the political state of America only when influential members of the incumbent regime showed its support for judicial review. These political officials supporting judicial reviews would continue supporting it for as long as the policies decided upon were to the advantage of the influential political members. The establishment of judicial review sheds light on recent debates raised during strategic voting by justices. Marshall’s manner of voting was considered a strategic one.

The laws he thought were unconstitutional were sustained especially those that were perceived as being more aggressive in judicial action and would tend to damage the political foundations for judicial review. Judicial power can be explained as the ability to make an individual do something that they would otherwise not do.

There are several cases that can be used to provide evidence of such powerful practices over time. According to Brooks (1986), there are ways in which laws and politics are used in the structuring of the judicial decisions.

During the 2000 elections the Supreme Court ended the most contentious presidential race by declaring Bush the winning candidate. The Democrats’ supporters accused the courts of having practiced partisan politics while the Republicans congratulated the courts efforts in following the rule of law.

Amidst the controversies around the appointment of President Bush was the debate about judicial decision making process carried out by the Supreme Court. The main question was how the Supreme Court ended up making their decisions, did they base their decision on the constitution and the laws specified or did they base theory decisions on politics and policy references?

The Supreme Court violated some important principles and even circumvented federal law deciding the case. Courts are obligated to make decision on cases basing their preferences on the law and not policy preferences. This is the reason why many challenged the decision made in the case of Bush vs. Al Gore.

Its intervention was clearly unprecedented and intruded upon the political processes in many aspects. Having halted the vote counting process the court is said to have prevented a democratic ending of a states’ most important decision. To many people the statement “ballots shall not be counted” as ruled by the courts was an ironical gesture, considering the fact that United States claims of being a state with special stature as a democracy.


The courts function in deciding which person is right and who is wrong basing their verdict on the states laws. Persons who have the authority to exercise the review power are obligated to ensure that the grantee believes that the grant extends to the arising occasion. Once the decision is wrong then the person is accountable to the grantor only unless a person is an authority paramount to both the grantee and the granter.

The Supreme Court decided to stop ongoing voting recount in Florida, with a 5-2 leading vote, the decision was therefore based on the fact that if vote counting would have been prolonged then the state of Florida had no chance of having their electoral votes counted since they were violating the federal statute and it would not be right to pass the verdict without challenging it in Congress under the Electoral Count Act.

Justification of ending vote recount

The Equal Protection Clause is a guarantee to each person who votes that as a voter, ones ballot cannot be devalued. For this reason the verdict placed by the Florida Supreme Court was against the constitution of America. Recounting the votes would be considered by many critics a fair move in terms of theory but in terms of practice the process was unfair. Besides, the time to stop all ballot counting processes was almost over that is why the court held that there was no constitutional recount that could have been carried out in such a short time.

The court’s reasoning was that counties varied in their balloting procedures so conducting a manual recount of these cast votes would take longer than the stipulated time.

In actual sense the legislative council wanted to take advantage of the “Safe Harbor Act” provided in the United States constitution under section 5. The recount was also unconstitutional because the Florida Supreme Court’s decision made new election law which could only be carried out by the states legislature.

Legal counsel experts, (Breyer, Souter, Rehnquist,Scalia and Thomas) agreed that vote recounting in Florida was unconstitutional since it violated the equal protection clause. They opposed basing their argument in respect to the remedy, believing that the decision taken could have been right if only it was stated clearly under a constitutional recount (Cannon 2000).

Taking into consideration that the Equal Protection clause warrants individuals that their ballots cannot be diminished by “later arbitrary and disparate treatment,” the per curiam view argued that the Florida Supreme Court’s slate for recounting ballots was not constitutional – even if the recount was reasonable in theory, it was inequitable in practice.

The confirmation indicates that different standards were applied from ballot to ballot, area to area, and county to county. Due to those and other procedural ambiguities, the court ruled that no constitutional recount could be done within the short timeline (that was short since the Florida legislature desired to take advantage of the “safe harbor” provided by 3 USC Section 5).

Abominate to make wide pattern, the per curiam view limited its holding to the present case with Rehnquist (in a concurring view together with Scalia and Thomas) perceived that the recount slate was also not constitutional since the Florida Supreme Court’s verdict made new election law that only the state legislature could pass.

Many law experts concurred with the per curiam arguing that the Florida Court’s recount slate was in contravention with the Equal Protection Clause, but they disputed with respect to the remedy, judging that a constitutional recount could be bent and time could be insubstantial when constitutional liberties are at stake.

Ginsburg and Stevens suggested that because federal laws, the Florida Supreme Court’s judgment ought to stand. Furthermore, the Florida decision was essentially right; the Constitution required that all votes to be counted.

Courts cannot justify their halting vote the counting process in Florida. From the perspective of several legal officials and critics cite the use of the equal protection clause could spark a new era whereby courts would use the clause as a way to get a solution to fundamental inequality issues during an election.The Supreme Court truly lacked jurisdiction to decide the case outcome. The reason being that all evidence presented were not enough to be used for making any decisions most especially because the case was in a political context.

Though the 5 justices invocated the Equal Protection criteria, it is generally suspected of being a partisan scheme, arguing that Florida’s original recount was unconstitutional in fact has grounds: There is no convincing coherent basis for a state to physically recount under votes — ballots in which a machine doesn’t record any vote for president — but not over votes — ballots in which a machine records numerous entries for president (Mark1999)

Also, the 5 justices failed to remand Bush v. Gore to Florida after declaring that the recounting procedures in Florida as unconstitutional and argued that the issue was lawfully unjustified and defenseless. They explained that Dec. 12 was Florida’s self-imposed timeline for closing the presidential vote counting and choosing a schedule of electors for the winning candidate and that this timeline was hours to time Bush v. Gore was served.

According to federal law, “when a state sets its schedule of electors by Dec. 12, the confines of the schedule is not subject to attack during Electoral College proceedings held in Congress on Jan. 6” (Learned 1958). While meeting such a timeline is to be desired, there is no hint at all that the state’s legislature desired to stick to this timeline at the cost of securing an exact vote count and the selecting of the equally justifiable schedule of presidential electors.

Alternatives for the court

The court did not have to make any decisions from case. There were other alternatives available to the court, which made more sense than those selected the by Florida court. The State Supreme Court could have defined a “legal vote”, the refusal of which affected the election.

That is, the Supreme Court needed to look at other election statute, §101.5614(5), to deal with spoiled or defective votes that gives a proviso that no vote shall be disregarded “if there was an apparent sign of the intention of the voter as decided by the canvassing board” (Thayer).

The justices read that point of looking to the voter’s intention as implying that the legislature perhaps meant “legal vote” to refer to a vote recorded on ballots showing what the voter deliberated. It is apparent that the majority might have taken a different reading and thus it is constitutional to follow the majority’s opinion. This alternative preserves the court’s institutional legitimacy and the cherished democratic values. (Bickel 1986)

The courts could have refrained from interfering in the matter because of its political aspects. In respect to political question doctrines, there is a clear separation of power between the Supreme Court and other government institutions. The Supreme Court is not allowed to decide cases that are constitutionally committed to other branches of government. The courts are also obligated not to interfere with issues related to the legislative or executive branches of government to preserve the separation of powers.

Instead the courts would have allowed the matter be resolved by the legislative branch of government which handles electoral processes. Therefore from the Bush v Gore case, it compromises our judicial system as the Supreme Court did not act appropriately in addressing the matter. In addition thought not in a large way, the case exposed how our civil liberties were being compromised and the inability of the judicial system to address them appropriately.


Bickel A., (1986).Establishment and general justification of judicial review.New York, NY. John Willey.

Brooks, J. (2000). Ethics experts say Scalia, Thomas connections not conflicts of interest. CNN. Web.

Bugh, G. E. (2010). “Representation in Congressional Efforts to Amend the Presidential Election System.” In Electoral College Reform: Challenges and Possibilities, ed. Gary E. Bugh. Burlington, VT: Ashgate Publishers.

Bush, et al. v. Gore et al – 531 U.S. 98.Certiorarito the Supreme Court Of Florida.No. 00-949. Argued December 11, 2000-Decided December 12,2000.

Cannon, C. (2000). After All the Acrimony.The Election Ends on Grace Notes. Web.

Kelly, J. (2003)Judicial review. Harvard Law Review Volume 7 (1893-94) Retrieved from Learned Hand, (1958). The Bill of Rights. Web.

Mark, G. (1999). Problematic establishment of judicial review. New York, NY: John Willey.

This research paper on Role of Judicial Review: Bush vs. Gore was written and submitted by your fellow student. You are free to use it for research and reference purposes in order to write your own paper; however, you must cite it accordingly.

Need a custom Research Paper sample written from scratch by
professional specifically for you?

Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar
Writer online avatar

301 certified writers online

Cite This paper

Select a citation style:


IvyPanda. (2020, January 11). Role of Judicial Review: Bush vs. Gore. Retrieved from https://ivypanda.com/essays/bush-vs-gore/

Work Cited

"Role of Judicial Review: Bush vs. Gore." IvyPanda, 11 Jan. 2020, ivypanda.com/essays/bush-vs-gore/.

1. IvyPanda. "Role of Judicial Review: Bush vs. Gore." January 11, 2020. https://ivypanda.com/essays/bush-vs-gore/.


IvyPanda. "Role of Judicial Review: Bush vs. Gore." January 11, 2020. https://ivypanda.com/essays/bush-vs-gore/.


IvyPanda. 2020. "Role of Judicial Review: Bush vs. Gore." January 11, 2020. https://ivypanda.com/essays/bush-vs-gore/.


IvyPanda. (2020) 'Role of Judicial Review: Bush vs. Gore'. 11 January.

More related papers