Judging Democracy: A Former Justice Reflects on Bush v. Gore 25 Years Later

Twenty-five years ago, I was a justice on the Florida Supreme Court when the court became the epicenter of one of the most consequential constitutional controversies in this country’s history: the 2000 presidential election between then-Texas Gov. George W. Bush and then-Vice President Al Gore. Only a few hundred of the nearly six million votes cast in Florida would determine not just who would occupy the White House, but also how the judiciary would be seen for decades to come — a protector of democratic principles or a casualty of political warfare.

From butterfly ballots to hanging chads, Florida’s electoral chaos thrust our court into the national spotlight and, ultimately, the pages of history. The dispute that came to be known as Bush v. Gore was not just a legal dispute. It was a test of the rule of law and underscored the importance of judicial independence in a functioning democracy with three coequal branches of government.

Although a quarter-century has passed since Bush v. Gore, the core issues — the integrity of our elections, the impartiality of our courts, and the significance of the rule of law — are more urgent now than ever. If 2000 was a constitutional crisis resolved through institutional restraint, then recent events — from the storming of the Capitol on January 6, 2021, to the erosion of public trust in judicial rulings, and, more recently, threats toward sitting judges — suggest that we may be far less prepared to withstand the next constitutional crisis.

As I reflect on those extraordinary days in late 2000, I do so not only as a former justice who was on the front lines, but as a citizen deeply concerned about where we are headed. Bush v. Gore was not the end of a story. It was the beginning of a cautionary tale that reminds us that democracy does not sustain itself. It must be defended — vote-by-vote, ruling-by-ruling, and generation-by-generation.

Democracy Tested

The setting: The presidential election between Gore and Bush had just taken place. While the nation slept, Florida’s votes were still being counted. I had cast my own absentee ballot in Palm Beach County, where my husband and I resided. As a sitting justice, I had no inkling that the election would end up in our courtroom — let alone become a controversy for the history books. But by the morning after Election Day, it was clear that a national crisis was unfolding in our state.

A razor-thin margin in Florida would determine who would become the 43rd president of the United States. Our legitimacy as individual justices, and the legitimacy of the court as an institution, was suddenly under national scrutiny.

In the span of just a few weeks, our court issued two of the most scrutinized and consequential decisions in modern election law. First, in a unanimous 7–0 per curiam opinion, we ordered the secretary of state to delay certification of the vote to allow counties time to complete recounts — a ruling grounded in the fundamental principle that no legally cast vote should be discarded for lack of time. Second, in a deeply divided 4–3 decision, we mandated a statewide manual recount of undervotes — ballots where voting machines had failed to register a presidential choice — under uniform standards, reflecting our solemn judicial conclusion that a democracy cannot claim legitimacy if it refuses to count votes that machines have failed to recognize but human eyes could plainly discern.

But despite our best efforts to uphold the constitutional ideal of inclusive democracy, we could not finish the judicial work with which we were tasked. On December 12, 2000, the U.S. Supreme Court issued its ruling in Bush v. Gore, halting the recount our court ordered. At that moment, only 537 votes separated the two candidates in our state.

Looking back, those days were more than a judicial test. They were a test of the legitimacy of democratic institutions, of legal process under pressure, and of the judiciary’s capacity to hold the line between law and politics. Whether that line ultimately held is a question that academics still debate today, 25 years later — especially as we confront new challenges to election integrity, judicial independence, and democratic norms in today’s increasingly polarized climate.

Our constitutional tradition, both state and federal, guarantees the people the right to take part in self-government. For most Americans, that participation takes the form of voting, an act that is both expressive and constitutive. To vote is to speak; to be counted is to be acknowledged as part of the political community. And so the right to vote is not exhausted at the point of casting a ballot. It encompasses the full chain of events that must occur for that vote to be recognized, recorded, and effectuated. To interrupt that chain is not simply a procedural misstep — it is an injury to the democratic order.

In 2000, the absence of statewide uniformity in ballot design and vote tabulation revealed the cracks in Florida’s decentralized electoral infrastructure. Each of Florida’s 67 counties operated under its own procedures, equipment, and discretion, administered by 67 independent supervisors of elections. The result? Dramatic inconsistencies that meant a vote in Miami-Dade County might be treated differently than the same vote in Leon County or Palm Beach County.

Ironically, the U.S. Supreme Court’s majority opinion in Bush v. Gore later cited this lack of uniformity as the central equal protection violation warranting federal intervention. Yet it was precisely that violation that our court sought to remedy in our second opinion by tasking a single trial judge with overseeing the statewide recount under uniform standards. And as Justice John Paul Stevens eloquently noted in dissent — joined by Justices Ruth Bader Ginsburg and Stephen Breyer — the Florida Supreme Court did not rewrite the law. We applied it.

The Florida Supreme Court did not “make any substantive change in Florida electoral law,” Stevens wrote. Rather, he said, our “decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole.” As Stevens put it, we simply decided the cases before us “in light of the legislature’s intent to leave no legally cast vote uncounted.”

Whatever one’s position on the legal theories advanced in Bush v. Gore, a sobering truth remains: Not every vote intended to be cast for a presidential candidate in Florida was counted. In some counties, manual recounts were completed, and undervotes were carefully inspected. But in at least 15 counties, those undervotes were never reviewed manually. Citizens who took the time to vote — all of whom, of course, believed their votes would be counted — were effectively erased from the final tally. A vote uncounted is a voice unheard, and a voice unheard is a citizen unseen.

Loss of Confidence in the Judiciary

Just as concerning to Stevens was the long-term impact of the U.S. Supreme Court’s decision on confidence in the judicial system. Bush’s “federal assault on the Florida election procedures” must have been motivated by “an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed,” Stevens surmised. And “the endorsement of that position by the majority of the U.S. Supreme Court could “only lend credence to the most cynical appraisal of the work of judges throughout the land.”

“The true backbone of the rule of law,” Stevens said, “is confidence in the men and women who administer the judicial system.” He continued: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

Stevens believed that “time will one day heal the wound to that confidence that will be inflicted by” the U.S. Supreme Court’s decision. But looking at the current state of our country’s politics, I am not convinced that any real healing has taken place in the past 25 years. Instead, the wound inflicted by the in Bush v. Gore decision has festered, and other decisions of the U.S. Supreme Court — such as last year’s ruling on presidential immunity — have strengthened the power of the executive branch. As for the judicial branch, a 2024 survey showed trust in courts hit record lows. At the same time, spending on judicial elections in the state courts have reached record highs, further reinforcing the public’s view of state judges as political actors rather than neutral arbiters. Death threats against judges and other security concerns have become a harsh reality.

This troubling dynamic is magnified by recent efforts to undermine the authority of courts that issue decisions unfavorable to the executive branch. When a sitting president and his allies openly question the legitimacy of judicial rulings — or suggest that obedience to court orders is optional — the damage is not just institutional. It is existential.

A Fragile Hope Unraveling

In numerous speeches since the 2000 election, I have reminded audiences that despite the high-stakes drama, the dispute surrounding Bush v. Gore had no bullets, no barricades, no tanks in the streets. Outside the Florida Supreme Court, there were impassioned but peaceful protests. Inside, we did our work. And when the U.S. Supreme Court rendered its final ruling, Gore conceded peacefully. He did so not because he agreed with the decision, but because he understood that the peaceful transfer of power is the lifeblood of constitutional democracy.

That moment gave many of us reason to hope. The rule of law had held. Institutions had endured. Democracy had been tested but had not broken.

That fragile hope, forged in the restraint and rule-following of the 2000 presidential election, unraveled in the aftermath of the 2020 presidential contest. On January 6, the world watched in disbelief as a sitting president’s supporters stormed the U.S. Capitol, attempting to halt the lawful certification of electoral votes. It was the first time in American history that followers of an incumbent chief executive used force in an effort to overturn a democratic election outcome. The scenes of bloodshed and shattered windows in the Capitol stood in stark, painful contrast to the peaceful protests and institutional order that prevailed in Florida two decades earlier.

But the breach of the Capitol was not just a physical attack on an historic building — it was a symbolic assault on electoral legitimacy and democratic norms. Today, many Americans are deeply unsettled about the strength of our democracy.

A wave of legislation has swept across the country, often under the banner of “election integrity.” Proponents argue that such measures are necessary to ensure that only eligible citizens vote. But critics — including voting rights advocates, some constitutional scholars, and civil liberties groups — warn that these laws risk becoming modern barriers to the ballot box. They argue that rather than protecting elections, these restrictions may suppress turnout, especially among racial minorities, low-income communities, and elderly voters, who may lack access to the required documentation.

We must recognize these efforts for what they often are: solutions in search of a problem, wrapped in the language of legitimacy. The evidence of widespread voter fraud is virtually nonexistent. But the evidence that some of these laws make it harder for some Americans to vote is overwhelming.

We now live in a time of hyper-partisanship, weaponized misinformation, and institutional fragility. The very forces that once sought to pressure the judiciary to rule a certain way have, in some cases, escalated into efforts to discredit the judiciary altogether. And the combination of these forces could once again bring us to the brink of another judicial crisis, one in which the system may not hold.

Many legal scholars and historians now warn that we are “sleepwalking into autocracy.” I do not use that phrase lightly. But I share their concern. The erosion of public trust in our democratic processes is not happening overnight. It is happening in increments, as foundational norms are eroded and civic apathy takes root.

A Call to Action

This raises profound and pressing questions: Can we still trust the courts to protect the fundamental right to vote, as the Florida Supreme Court tried to do a quarter of a century ago? And perhaps more ominously, will those in power obey the courts when they rule?

We must never be silent in the face of injustice. We must call out attempts to undermine democratic institutions and suppress the vote. We must encourage principled individuals across the political spectrum to seek public office, and we must support them when they do. We must defend the independence of our courts, even when their rulings are unpopular. And most of all, we must vote — not only as a civic duty, but as a declaration of belief in the democratic project.

The lesson of Bush v. Gore was not simply about recounts, deadlines, or judicial interpretation. It was about the fragility of democracy and the obligation of each generation to protect it.

The courts can only do so much. The rest is up to us.

Barbara J. Pariente served on the Florida Supreme Court from 1998 to 2019 and was the chief justice from 2004 to 2006. Portions of this essay will appear in an article in the Florida State University Law Review, “Democracy on the Docket: Reflections on Bush v. Gore After 25 Years,” 53 Fla. St. U. L. Rev. (forthcoming 2026).

Suggested Citation: Barbara J. Pariente, Judging Democracy: A Former Justice Reflects on Bush v. Gore 25 Years Later, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Dec. 8, 2025), https://statecourtreport.org/our-work/analysis-opinion/judging-democracy-former-justice-reflects-bush-v-gore-25-years-later