Bush v. Gore is a landmark decision of the Supreme Court in many regards. First because of its time constraint (the Electoral College had to meet on December 18th, which gave the Justices very little time to make a major decision), secondly because of its tremendous impact (the Court was given the opportunity to influence - if not to determine - the outcome of a Presidential election), and finally because of its content (many felt that the legal reasoning behind the decision had been dictated by a preset choice of outcome).
By looking at those three elements, we will try to understand why Bush v. Gore is such an important and controversial decision. We will then compare the treatment of Bush v. Gore case with the role of the French "Conseil Constitutionnel" as an electoral jurisdiction.
[...] The legal content of Bush v. Gore is indeed questionable in several regards. First, a 7-2 majority held unconstitutional the uneven way the votes were being recounted. Justices mentioned in particular the use of different standards (full manual recounts in some counties, and partial recounts in others) which, according to them, violated the Equal Protection of Rights[2]. But it is a well known fact that presidential ballots, in the first place, take very different forms depending on the States: some have optical reading devices, others have punch-holes card systems, etc. [...]
[...] Commentary: Bush v. Gore is a landmark decision of the Supreme Court in many regards. First because of its time constraint (the Electoral College had to meet on December 18th, which gave the Justices very little time to make a major decision), secondly because of its tremendous impact (the Court was given the opportunity to influence - if not to determine - the outcome of a Presidential election), and finally because of its content (many felt that the legal reasoning behind the decision had been dictated by a preset choice of outcome). [...]
[...] The first characteristic of the Bush v. Gore decision is that it was taken in emergency. Indeed, the case was argued on December 11th, just a week before the vote of the Electoral College. Moreover, as stated in the abstract, Article 3 section 5 of the Constitution sets a 6 day “safe harbour” for the designation of the electors to allow Congress to challenge the votes[1]. In other terms, the final Electoral College had to be designated on December 12th, i.e. [...]
[...] In addition, Bush v. Gore breaches the stare decisis[4] doctrine that had led the action of the Court for many years. Indeed, the Bench specified that this decision was so particular that it should be given an individual value, and could not be considered as a bonding precedent for the Court. As a result, the exceptional nature of Bush v. Gore made it all the more contestable in public opinion. Due to the weakness of the decision, the dissenting opinions were remarkably harsh on the majority. [...]
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