THE MANY FACES OF BUSH V. GORE
It was a cold night, December 12, 2000, as the journalists gathered in front of the Supreme Court building in Washington, D.C. They were awaiting word on the third intervention taken by the Supreme Court in the election controversy of the century—the unresolved presidential race between George W. Bush and Al Gore. The Supreme Court had never decided a presidential election. The ubiquitous television pundits were surprised that the Court took the case at all. No one had figured out how the Court could establish its jurisdiction over a question that appeared to be a matter exclusively of Florida law. The Florida Supreme Court had just ordered the counting of uncounted ballots in certain counties, and therefore it appeared that although the Florida secretary of state had already certified Bush winner of the state, Gore could win enough votes on the recount to gain the lead.
December 12 carried an ominous ring. Many people thought that this was the deadline for recounting the votes in Florida and declaring the winner. Whoever carried the state would gain a majority in the Electoral College. December 12 was the date implied in the structure of a federal statute, enacted in 1877, designed to regulate disputed elections. 1 If a state could determine its slate of electors by “at least six days before the time fixed for the meeting of the electors, ” the slate would be guaranteed legitimacy when the House of Representatives counted the electoral votes. 2 As the electors were required to meet on December 18, by implication, December 12 became a desirable cutoff day to settle the dispute over Florida's electors. There were no penalties provided for states that designated their slate of electors after December 12, but if for some reason two conflicting slates of electors were sent to Congress, as had happened in 1876, Congress would have to make a choice between them.