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Episode 10: A Tale of “Hanging Chads”: A Discussion of Bush v. Gore

Featuring Guest Speaker, Professor Rick Hasen of the University of California, Irvine.

In Episode 10 of Notorious, we discussed the case of Bush v. Gore, which involved one of the closest presidential elections in United States history at that time. This case concerned the 2000 presidential election between George W. Bush and Al Gore. After Gore won the popular vote, the election’s outcome was contingent upon Florida and its twenty-five electoral votes. After Gore requested a recount of votes, the Florida Supreme Court held that the recount procedures were constitutional.

In a per curium opinion, the United States Supreme Court reversed the Florida Supreme Court, holding that the scheme for recounting ballots was unconstitutional. The Court found that even if the recount was fair in theory, it was unfair in practice because the factual record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Therefore, the scheme violated the Equal Protection Clause of the Fourteenth Amendment. Thus, with this decision, Bush became the first president since Benjamin Harris in 1888 to lose the popular vote but win the general election. 

Justices Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. This is one of the rare occasions where Justice Ginsburg rejected an Equal Protection Clause argument in one of her opinions. 

Professor Rick Hasen, of the University of California, Irvine, joined by Patterson Belknap attorneys, Michelle Bufano and Alejandro Cruz, discuss this case and Justice Ginsburg’s unique take on federalism over the Equal Protection Clause.   

Related Resources:

For a selection of Justice Ginsburg’s writings, see Decisions and Dissents of Justice Ruth Bader Ginsburg:  A Selection, edited by Corey Brettschneider.

For more information about Patterson Belknap Webb & Tyler LLP, see

For information about becoming a guest on Notorious, email Michelle Bufano.

For questions or more information about Notorious, email Jenni Dickson.

Also, check out the Patterson Belknap podcast, How to Build A Nation in 15 Weeks.