The Instigator
Con (against)
0 Points
The Contender
Pro (for)
4 Points

George W. Bush should have won Bush v. Gore

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Voting Style: Open Point System: 7 Point
Started: 6/15/2010 Category: Politics
Updated: 6 years ago Status: Post Voting Period
Viewed: 2,956 times Debate No: 12352
Debate Rounds (3)
Comments (4)
Votes (1)




On January 20th, 2000, a man was sworn in as president of the United States of America. This man lost the popular vote fair and square. He also would have lost Florida if all of the counties had counted their votes consistently with their standard [1]. The Florida supreme court even called for a recount. By a series of political maneuvers, however, this issue made it into the supreme court. Issues like this are not supposed to go to the supreme court, as they are state law [2]. Somehow, this went to the supreme court anyway, and it got even more dubious from there. Somehow, all of the GOP-appointed justices (with the exception of Stevens) voted with Bush. If it couldn't get more dubious, the conservative judges tend to rule to protect state laws, yet they voted to overturn Florida's law, while the liberals voted to keep the state law intact. That is a dubious ruling if I've ever seen one. Not only that, but Bush was ruled the winner based on the equal protection clause [3]. Anyone with any knowledge of equal protection would know that it has nothing to do with the issue at hand, and if there was a violation, it is because not everybody's vote was counted. A recount would do nothing to "deprive any person of life, liberty, or property, without due process of law" [4].

Still, George W. Bush won, and he served as president for eight years. But should he have won? No, he should not have, and I look forward to debating this topic.

2) "When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers" (Stevens).
3) "With respect to the equal protection question, we find a violation of the Equal Protection Clause" (Per curiam).


I thank my opponent for offering this debate and as I have made clear on this site, I am not a fan of the former President and did not vote for him. I am not changing sides here as I fully supported the SCOTUS decision in this one.

Point 1: Bush lost the popular vote
Rebuttal: This is irrelevant since the US President is not elected by popular vote.

Point 2: "He [Bush] also would have lost Florida if all of the counties had counted their votes consistently with their standard".
Rebuttal: This debate is in reference to the SCOTUS decision, not other recount methods. As my opponent's source makes clear, "The results of the study showed that had the limited county by county recounts requested by the Gore team been completed, Bush would still have been the winner of the election."
So this was outside of the scope of the appeal for the SCOTUS decision and; therefore, outside the scope of our debate.

Point 3: "Issues like this are not supposed to go to the supreme (sic) court (sic), as they are state law."
Rebuttal: Con is relying heavily on Justice Stevens' dissent as his source, but he should read further; Con will find that Justice Stevens acknowledges that the federal court can step in on state election laws, "On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion." (Directly after Con's quote). Stevens never argued that the SCOTUS had no jurisdiction here; he only proffered that the Court should uphold the Florida Court's decision and not overturn it. Bush et. al. presented a federal claim (equal protection) so the SCOTUS was well within its Constitutional boundaries to hear this appeal as it is in any federal case. Many cases make it to the SCOTUS concerning state laws as the laws of the states must still adhere to the US Constitution. Stevens and Souter both agreed the equal protection claim had merit (see part C Souter dissent) Since this issue was substantial the judges agreed it was within the purview of the court and it is the issue which the per curium decision was based upon, so we will focus on it alone at this point.
Souter made clear that the he felt the Court should never have granted certiorari, but this debate is about Bush v. Gore, not the previous vote by the justices to grant cert. so his comments on this point are merely dicta.

Con's claim that state election laws are barred from SCOTUS review is without merit and is not supported by any decision I can find in the Court's record. Con must support this statement or dismiss it. The only question left is this: Does this issue warrant a reversal due to the Equal Protection Clause.

Point 4: The Equal Protection Clause
Rebuttal: Con is completely off base to claim that anyone who knows anything about the Equal Protection Clause knows it has no bearing on the case. I, as are all members of the SCOTUS presumably, am very familiar with the clause and such a brash statement is without warrant. I may disagree, but I am knowledgeable. Do not equate idiocy to opposition when basing your argument on incredulity. As can be read in the per curium decision, the recount method to be used was arbitrary (this is the whole issue).

"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. 633, 665 (quote and citation in original) at pg 6

A "hanging chad" in one county did not equate to a "legal vote" in another:

"The record provides some examples. A monitor in
Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment." Ibid at 8.

Bush was not the one claiming equal protection per se; the voters were part of the lawsuit! If a "dimpled mark" was good in one county then it was good in another, but this was not the scenario presented and the Court pointed this fact out in the per curium opinion so the Equal Protection Clause applied hands down. The problem was simple: The voters would not vote again, but an appointed government official or a collective (the election commission) would decide the "intent of the voters", but the intent would be determined by marks on a paper, not direct testimony of the voters so the decision for electoral votes would fall on an APPOINTED official(s) and not the voters or the Electoral College. Stevens said this was an unimportant distinction (all the while acknowledging the Equal Protection Clause issue) but allowing this official to interpret the votes was the issue and the conservative majority stood against it, as they should have.

Last Point: Something fishy going on around here
Rebuttal: The Court decided along political lines (minus Stevens) but this is the image of impropriety verses actual wrong doing. I can see no way that Justice Scalia would approve an appointee to determine the "intent of voters". The "conservative" branch was following along with the same ideology as it always has: strict construction on all issues. The "liberal" branch was fine with not reviewing the case as an appointed official would determine the "intent" of the voters per the Florida Supreme hoped as this would be the only outcome to satisfy Justice Stevens' dissent. The problem was simply that the Court could not appoint the reviewer and no time was left to allow for the process to meet the deadline set by the Florida Court. Sure, the liberal wing did not want the Court to grant cert, but so what? Cert had been granted and they knew that granting cert brought the Equal Protection Clause into play due to the time restraints so they were stuck with little more than dicta, as is clear in the dissenting opinions. The Court was right in hearing this one and by hearing it, it may have made the Equal Protection Clause viable! They were stuck and did the best they could and they did very well. The election was upheld, states still maintain the administrative ability to address election laws, and the Court only ruled on the inevitable outcome: Bush wins Florida and the Presidency, as much as we may regret it now. Sorry, I am a democrat and an Obama supporter, but the court got this one right.
Debate Round No. 1


Thank you very much for your extremely thoughtful response! I am actually very glad that somebody who did not vote for Bush took this debate, as it will be much easier to focus strictly on the Supreme Court's decision.

Point 1: I apologize, that wasn't clear. I did not mean for that to be an official argument. I added it in as a statistic for a certain shock value, but I agree, it has no bearing on what the Supreme Court should have done.

Point 2: This was still part of my introduction. I am sorry, this is completely not your fault. I was very unclear as to where my arguments started. That was a statistic that I threw in to analyze what could have happened if the counties had all counted consistently with the methods they had laid out, and it was never meant to be an argument. I apologize for my disgusting lack of clarity.

Point 3: First of all, thank you for pointing out my grammatical error. I actually do appreciate it, because I will make sure to not make the same mistake again.

You say that Justice Stevens "acknowledges that the federal court can step in on state election laws." You then provided a quote. If you look carefully at the last sentence of the quote that you provided, you will notice that Stevens says rather bluntly that we should not be interfering with this. He then explains very thoroughly in the next paragraph why it should not have gone to the Supreme Court. He writes, "The federal questions that ultimately emerged in this case are not substantial...the Florida Legislature�€™s own decision to employ a unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving electoral disputes. The Florida Supreme Court�€™s exercise of appellate jurisdiction therefore was wholly consistent with, and indeed contemplated by, the grant of authority in Article II." In the next paragraph, he writes, "Neither ��5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law." I could go on finding quotes of his that explain why the Supreme Court was overstepping their bounds in taking the case, but I think that more quotes would be overkill.

"Souter made clear that the he felt the Court should never have granted certiorari, but this debate is about Bush v. Gore, not the previous vote by the justices to grant cert. so his comments on this point are merely dicta."
The resolution of this debate is "George W. Bush should have won Bush v. Gore." Since the court case needs to happen in order for someone to win it, it is completely within the scope of my argument to say that it never should have happened in the first place.

Point 4: "Con is completely off base to claim that anyone who knows anything about the Equal Protection Clause knows it has no bearing on the case." This is true, but I meant it as a tongue in cheek comment. It's unfortunately one of those things that does not translate into text very well. I apologize for the confusion. That said, I do strongly believe that the Equal Protection clause does not have any bearing on this case. For your convenience and the convenience of the voters, the Equal Protection clause states that "no state shall...deny to any person within its jurisdiction the equal protection of the laws." Voting standards; however, are specifically county standards. So, if I were to go to Portland, I would be under a different set of laws since I would be in a different city and a different county. So does that mean that municipal and county laws are all violations of the Equal Protection clause? Of course not. So how are voting laws any different? And even if there was a violation of Equal Protection, then how could stopping a recount and using the results of the original count be any remedy at all? If there was a violation, then wouldn't a better remedy be to recount it with equal standards? They may have had to push the deadline back in order to complete the recount, but I can't see how any self-respecting judge could truly believe that a violation of the equal protection clause is better than having to move a deadline. I personally believe that there was no violation of Equal Protection, but if there was, then why would the majority instate a remedy that doesn't help, if they were truly acting consistently with the law?

Last point: Conservatives are less willing in general to take a case that interferes with state rights. That is the first dubious point. As made clear in the last argument, even if their claim that it violated Equal Protection was valid, stopping a recount does nothing to fix that. Also, since the majority said that the violation was only true for the facts of Bush v. Gore, it seems as though they are trying to keep it from being used as precedent. With all of these things that don't seem typical of the Supreme Court, it makes it very hard to believe that all of the justices were truly abiding by the rule of law.

I am looking forward to your response!


I thank my opponent for his response and I still maintain the Pro position after reading his rebuttal.
Points 1 and 2 can be skipped in light of my opponent's clarifications.

Point 3: My point concerning Steven's opinion was simple: state voting procedures are not barred from the review of the SCOTUS; Stevens makes this very clear. He continued by writing that the Court should uphold the State Court's ruling as he was fine with allowing one official to decide for the whole state. The problem with Steven's opinion is that he felt the SCOTUS was substituting its opinion for that of State Court, but the SCOTUS was doing no such thing as the majority made clear that any decision allowing for a recount would 1) allow for arbitrary standards by county to county or 2) allow one appointed official to make a decision for the whole of the state's voters. Neither decision could uphold the constitutionally supported Electoral College, as the second choice put an appointed official in control of what is or is not a "legal vote" and the first option disenfranchised certain voters based on subjective (and ultimately arbitrary) standards. The election commission is in no position to determine the "intent of the voters" by reviewing dimples or chads or any other marking which allows for ambiguity.

Souter and Dicta: Dicta is not controlling in any case and is even less important in a per curium decision. Souter can complain about the cert grant till the cows come home and it has no bearing on the decision at hand. The paradox here is that the SCOTUS had to review the decision of the State Court, but by doing so it brought the Equal Protection Clause into play due to the time constraints. Souter realized this as well, but still insisted the Court should have left this alone, allowed the recount and be done with it. The problem? Bush or Gore could have simply filed another lawsuit AFTER the recount using a Constitutional claim as the court did not hear the first one. In the end this was a mess. Souter realized that as well, but took jabs at the cert approval which he knew would have no bearing on the decision. He was simply complaining at that point so it has little to do with the decision in Bush v. Gore.

Point 4: Con is contrasting county ordinances with equal protection for voting laws. Yes, laws are different in every county, but ALL must abide by the US Constitution. A county cannot make an ordinance requiring people of one color to pay a pole tax, or take a voting test; nor can a state require all of its citizens to take a test to vote either. (equal protection claim on poll tax) and gerrymandering (equal protection again)
The SCOTUS has never been reluctant to step in when the "one man, one vote" issue comes into play. No the state or county has an unadulterated right to change voting regulations arbitrarily. Voting is a constitutional right, speeding is not.

Anytime an arbitrary distinction is made in reference to what is/is not a "legal vote" then the Equal Protection Clause will be addressed, no matter how trivial it may seem to Justice Stevens in any case. The comparison of county ordinances to voting rights is faulty.
Final Point: This was not a State's rights case per se. The state does not have the right to violate the US Constitution and either decision the State Court made would have done just that, so the SCOTUS was right to stop all action and let the votes stand as per the original count. Time was a big issue here and the decision to do a per curium decision was done to allow expediency and made clear the case was for these facts only. A per curium decision is generally short and does not get the full treatment as a standard SCOTUS decision. This is not new for the Court as it has used the same process in the past. I see nothing special here and both wings (liberal and conservative) upheld their general views of the law; the only difference is that the liberal and conservative candidates were on the other side of the case. At best, Con can show the image of impropriety, but I see no wrong doing here as this decision is in line with the Court stepping in when equal protection is at stake. Any decision by the State court would have violated the Clause as the time limit was mandatory by a previous decision. Everyone was stuck and the actions by the SCOTUS were the most appropriate in a messy situation.
Debate Round No. 2


abard124 forfeited this round.


I thank my opponent for offering this debate and will be short in my conclusion. As much as I did not want G.W. Bush to win the election, I can find no fault in the SCOTUS for their decision. Appointing an official to determine the "intent of the voters" or allowing counties to recount votes under an arbitrary system would have violated the Equal Protection Act. The time constraints on the Court did not allow for much wiggle room on this one and they did the best they could in a case of first impression. The relevant claims presented by my opponent have been addressed and I urge a vote for Pro in this debate.
Debate Round No. 3
4 comments have been posted on this debate. Showing 1 through 4 records.
Posted by abard124 6 years ago
Wait... What???

I got 2 emails at exactly the same time from One of them said that it was my turn to debate, and the other one said that I had just forfeited the round because I ran out of time... Not really sure what happened there...
Posted by abard124 6 years ago
Ten years doesn't change the fact that the SCOTUS did the wrong thing... And it's only been nine and a half :-D...
Posted by studentathletechristian8 6 years ago
Still can't get over it after ten years ;)
Posted by FREEDO 6 years ago
Good case.
1 votes has been placed for this debate.
Vote Placed by wjmelements 6 years ago
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