Bush v. Gore 2.0? Implications for the 2020 Election
Transcript
1. Introduction
Elijah: Today, we are going to talk about Bush v. Gore-- the original electoral crisis in America that happened around 20 years ago.
Aidan: I see, this is something I have been thinking about a lot recently-- not because I think that this cycle is Bush v. Gore 2.0 necessarily, but that there are some similarities worth talking about.
Elijah: I agree, especially because I think the question on many people’s minds concerns electoral legitimacy-- not all that different from Bush v. Gore. I think we all want to know when the lawsuits will end and when President Trump will recognize the outcome of the election.
Aidan: Okay, so beyond the question of President Trump’s rhetoric and lack of legal success, why do you think that Republicans have been so lenient with the resistance to the transition of power, and the allegations that have been produced to support the idea of voter fraud?
Elijah: So I think this is what brings us to Bush v. Gore. Although Bush v. Gore made it to the federal Supreme Court unlike any of President Trump’s litigation efforts, discussing the national impact of the Bush v. Gore case and the challenged transition of power can inform out understanding of the potential road we will be traveling on as we enter 2021.
2. The Significance of the 2000 Election
Elijah: Let’s talk about why the 2000 Election was so consequential - why even talk about it?
Aidan: So let’s dive into the Bush v. Gore election and the case that followed.
Elijah: The interesting thing about Bush v. Gore is that the politics surrounding the election were not all that different from what we have today.
Aidan: This is interesting. I've actually spent a lot of time analyzing this election in my free time, but some of the most pertinent issues for the time were:
The War on Crime and Drugs
Clinton’s 1994 Assault Weapons Ban/crime bill
Nationalized healthcare
The War on Terror
Law and order
Domestic issues
Elijah: Great points. There really still is a focus on domestic issues today. Nothing as extreme as the war on terror in terms of foreign affairs in the news cycle. Let’s talk about the candidates, too -- on the Democratic side you had incumbent vice president Al Gore, who stood for robust social insurance and public relief services while the governor of Texas George W. Bush ran on a platform of broad based tax cuts to help the economy.
Aidan: Yes, so not all that different from today’s parties. We hear about how the 2000 election came down to Florida-- why was Florida so important in the first place?
Elijah: First off, Florida was so important because without it, the election was 266- 246 (Gore) - so, in essence, the whole presidency came down to the 20 electoral votes that this state had to offer.
Aidan: That makes sense. Why did things fly off the handle there?
Elijah: There were a lot of reasons, really:
Florida originally called for Gore, which is odd because that state does not get called early often- early exit polls suggest that Gore had a lead.
Briefly after, networks came to this same realization and then rescinded their call.
After more information came in, then it was called for Bush — by an incredibly low margin (which only got smaller with subsequent recounts).
Aidan: That sounds like a nightmare. So I guess then we already got to see competing claims of legitimacy for who actually won the state of Florida.
Elijah: Yes. Interestingly, Gore was prepared to concede on election night, but an advisor got in touch with him just before he walked on stage, and told him not to.
Aidan: Although Gore does end up conceding shortly after the case is settled, these early contestations--as well as the difference in votes--provided enough basis for recounts. And here is where Gore’s decisions become hugely important to the development of the election:
Gore knew that there were four counties, that if recounted, might tip the state in his favor so he pushed for a recount in these counties. This would come back to haunt him in the Supreme Court. The Florida Supreme Court allowed a recount to continue long after the election happened — stretching out for over 19 days. Conflict emerged between state legislatures over deadlines and counting, and the Supreme Court stepped in to resolve the never-ending election, yielding the infamous Bush v. Gore case.
Elijah: Wow sounds like Gore, the Supreme Court, and the nation were all on the edge of their seats. Sounds like a familiar situation. What happened?
3. The Short-Sightedness of the Bush v. Gore Case
Aidan: Following legal fights in the Florida over recounts and deadlines, the Florida courts ended up ruling in favor of a recount process that could have swung the entire election in Gore’s favor. Bush appealed the decision to the Supreme Court.
Aidan: So it gets to the Supreme Court right, and basically, they rule in a 5-4 vote that the recount must stop.
Elijah: And on what basis do they come to this conclusion? Didn’t Florida’s court rule for a recount?
Aidan: They argue that a recount that features only some of the votes —from only some of the counties — violates the 14 amendment’s Equal Protection Clause- and it does. This is exactly where the four counties that we mentioned earlier come back to haunt Gore.
Elijah: So basically the Equal Protection Clause says that the state has to protect all citizens equally?
Aidan: In a way. One way to think about it is this:
Essentially, the law states that, “No state shall make or enforce any law which shall abridge the privileges/rights of citizens of the United States; nor deny to any person within its jurisdiction the equal protection of the laws.”
Aidan: The right to vote falls under this because of Article 2 of the Constitution which states that it is the right and responsibility of the state legislatures to provide for the selection of Presidential electors. Since this right had been extended to the people of Florida, the Equal Protection clause mandated that the right to vote not be infringed either by preventing the act of voting or by unequal treatment of votes after they had been cast.
Elijah: I see. So, given that there was a variety of balloting systems in not only these counties, but in every other county in Florida — there was no equal way to count every vote by the same standard — which denies the equal protection of each vote. Essentially, there were violations on two fronts — the treatment of counties in equal fashion based on Gore’s specific selection for recount, and the actual recording of the votes in equal fashion.
Elijah: But then why would these different courts have differing means to count ballots if it was invalid from the get go?
Aidan: Exactly! I don’t know. The main argument {at least from a Republican point of view} goes that the decentralization of voting mitigates the chances of having an election stolen. In other words, if we just had one standard way of voting, it makes our system more susceptible to being hacked and stolen; having differing ways to vote stops that.
Elijah: Okay, I can see how that would work. Basically, the court majority found that this right was being violated due to the lack of standards for how to assess voter intent on a ballot.
Aidan: Exactly, this is part of what actually led to stopping the recount. The justices also said that because no alternative method of recount could be established in a timely manner, these recounts were unconstitutional, as the more recent calls for recount are as well.
4. The Question of Legitimacy
Elijah: Yes. So I guess this brings us back to our question of legitimacy-- Was the election legitimate given Gore really lost the election by 1 vote?
Aidan: This is the hardest part to dissect in the 2000 election. From a legal perspective, the court did get it right on the violation of the 14th amendment-- it was foolish for Gore’s camp to only count ballots in some counties rather than ask for a full state recount.
Aidan: It’s also the case that Bush’s appeal was centered around the time of the vote —the unconstitutionality of a late vote submission with deadlines and the inability to count the votes in a timely fashion. He figured that a recount would rob him of the presidency and that he won fair and square. The courts stopped the recounts and declared Bush the winner, but I tend to agree with how Justice Souter and Breyer argued-- they said that a clear method to count legal votes should have been established in the post mortem of the election, and that that the violation of the Equal Protection Clause should be fixed through a manual recount.
Elijah: So it sounds like the question of legitimacy was actually turned on its head. Bush framed the issue as a recount that would rob him of his legitimate victory whereas Gore perceived it as an error in the electoral process.
Aidan: Exactly. Justice Scalia’s opinion matched Bush’s in that he argued, “The counting of votes that are of questionable legality does in my view threaten harm to George Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election” (121 S. Ct. at 512 (Scalia, J., concurring)). It seemed the federal courts were concerned with the illegitimacy of new recounted votes rather than the potential legitimacy of hundreds of forever uncounted ballots.
Elijah: On the one hand, the Republicans and the Supreme Court had a point that a recount in only these 4 counties was unconstitutional-- but, don’t you feel that Gore got robbed of a state-wide recount that would have truly determined the winner of the election?
Aidan: Yes. 100%. I think that Gore would have probably won if a state-wide recount had happened. Who knows what the US might have looked like under his leadership
Aidan: So I guess really quickly, I just want to return to our discussion of 2020 with respect to 2000. Why even talk about this and why do we care?
Elijah: I wanted to bring this up today for a few reasons. The litigious nature of the 2020 election has already been established, and as stories of voter suppression, voting lines, closed voting locations, fake ballot drop offs, and blatantly discarded ballots continue to pop up in the news, it seems that the controversies surrounding voting will only continue to flare as the election nears. A record number of mail-in votes and President Trump’s refusal to concede have sown seeds of discord and worry.
Aidan: Yes, that seems to be the key here. President Trump has turned out to be really effective at convincing people that the democratic process has been undermined.
Aidan: But bigger than that, I think that the key difference, here, is that whereas Gore legitimized Bush as president by his concession and trust in the process, President Trump has refused to legitimize Biden.
Elijah: Precisely — especially since nearly every case that President Trump has brought to court has been based upon unsubstantiated sources of evidence and claims of voter fraud — unlike the claims within Bush v. Gore that constituted violations of the Equal Protection Clause.
Aidan: Yes, and see, this is what worries me: we know that Biden won this election, yet we already know that there is and will be a demographic of folks who necessarily lose faith in our voting institutions because they have been led to believe that mail-voting is fraudulent.
5. Closing Thoughts
An essential portion of the conversation is the role of the courts and democracy itself. The Bush v. Gore election and so many others represent the federal government abiding by systems that systematically undermine the equal promise to representative power that democracy guarantees. As such, when candidates win without a plurality of votes or when the Supreme Court steps in to truncate democratic processes rather than repair them, it only erodes the American’s confidence in their government and the laws that constrain and order them. While we must vote we must also be unsatisfied with ineptitude.
References
Balkin, Jack M. 2001. “Bush v. Gore and the Boundary Between Law and Politics.” The Yale Law Journal 110:1407-1458. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4557&context=ylj.
The Editors of Encyclopaedia Britannica. 2020. “Bush v. Gore.” Brittanica. https://www-britannica-com.ezp-prod1.hul.harvard.edu/event/Bush-v-Gore.
Higgins, Tucker. 2020. “How Trump v. Biden could be Bush v. Gore ‘on steroids.’” CNBC. https://docs.google.com/document/d/1hPXHY-rIM3LWhXk4FgX8ERjN1H_Lz-PTZqQU4BuZPyA/edit.
Kennedy, Lesley. 2020. “How the 2000 Election Came Down to a Supreme Court Decision.” History. https://www.history.com/news/2000-election-bush-gore-votes-supreme-court.
Liptak, Adam. 2020. “As Supreme Court Weighs Election Cases, a New Life for Bush v. Gore.” The New York Times, October 28, 2020. https://www.nytimes.com/2020/10/28/us/supreme-court-bush-gore-kavanaugh.html.
Mann, Thomas E. 2001. “Reflections on the 2000 U.S. Presidential Election.” Brookings Review, (January). https://www.brookings.edu/articles/reflections-on-the-2000-u-s-presidential-election/.