Category Archives: Bush v. Gore reflections

What Difference Would It Make If the Supreme Court in the Moore v. Harper Case Embraced the Bush v. Gore Concurrence Rather Than a Full-Throated Independent State Legislature Theory?

Bush v. Gore reflections, legislation and legislatures, statutory interpretation, Supreme Court

In my earlier recap of today’s oral argument in Moore v. Harper (transcript here), I suggested that the middle ground position that the three Justices in the middle might embrace would be bad but not awful compared to the position embraced by Alito, Gorsuch and Thomas. I want to unpack that here, in the context of all the talk at oral argument about sky high deference to state court rulings etc. And this involves understanding the position of the concurrence in Bush v. Gore and the position of the court in the earlier Bush v. Palm Beach County Canvassing Board case.

Under the vision of ISLT embraced by the Legislators’ today through David Thompson’s argument, a state court has no role to play in applying the state constitution to limit a state legislature’s actions in federal elections. Even assuming the state was applying the state constitution exactly correctly—as Thompson conceded the Court did for purposes of making his argument—the state violates ISLT. There is no role for the state constitution. So imagine a state rules (as PA’s Supreme Court did) that the state constitution’s provision protecting free and fair elections required extending the deadline set by the Legislature by 3 days for the receipt of absentee ballots during a pandemic. Under this version of ISLT, this rule cannot apply to the federal candidates on the ballot. So late arriving ballots would count for state elections but not federal elections. (It would also seem to call into question all of the rulings of state election administrators interpreting state statutes, as I argue in my amicus brief, though Thompson tried to distinguish such cases as oral argument: “First of all, our theory does not relate to the interpretation of statutes.”)

In contrast is the approach that seemed to be floated by Justice Kavanaugh, and to a lesser extent the Chief Justice and Justice Barrett: that of the Bush v. Gore concurrence. Recall in Bush v. Gore the majority held that the recount ordered by the Florida Supreme Court violated the equal protection clause because it treated some voters as worse than others. The Rehnquist concurrence, joined by Justices Scalia and Thomas) held that when a state court engages in grossly unfair interpretation of a state election statute, that could usurp the power of the state legislature. (In Bush v. Gore, it was the legislature’s power under the parallel Article II authority for presidential elections, not the Article I, section 4 authority for congressional elections.) This was kind of the theory that Neal Katyal for the Common Cause respondents was arguing as a backup. There are going to be some really crazy interpretations of state law that would be unconstitutional. (There was some discussion if there’s a different standard in statutory cases like Bush v. Gore or constitutional standards under Bush v. Palm Beach County Canvassing Board. I don’t think that there’s any real holding in Palm Beach County because that case was a remand for more information, and no holding that a crazy interpretation of the state constitution necessarily usurps the legislature’s power unconstitutionally.)

Under this alternative theory, state court retains a role in applying a state constitution to limit what a state legislature does in regulating federal elections. But when it engages in a really crazy interpretation of a state constitution, then the Supreme Court can step in. To return to the example of the extension of 3 days for the return of absentee ballots during the election, the question would be whether such an interpretation of the state constitution—given the text of the statutory provision and given the history of application of the statute—is so novel and crazy as to become unconstitutional.

This version of ISLT would still be bad: we would have the Supreme Court second-guessing state supreme court rulings in highly charged election cases sometimes during contentious presidential elections. That’s why it’s bad. But it is not as awful as cutting courts out completely of the business of protecting voters’ constitutional rights under state constitutions in federal elections. That theory would lead to chaos in the courts, as my amicus brief shows.

Now I do think that there is a better limiting principle here, which is kind of parallel to the crazy interpretation argument: it’s a due process problem. Guy says that what you call it doesn’t matter much where this theory is found by I disagree for two reasons. First the due process clause prevents arbitrary and capricious government action. That’s the appropriate standard to use to decide if the state court has gone way too far. That kind of power would not be bad if the Supreme Court applied it rarely and judiciously. (It’s an interesting question whether it should have applied in Bush v. Gore. My view now is that this was a close call, and that the mainproblem in Bush v. Gore was the failure to remand for a revised recount under a non-arbitrary standard). The due process standard us extremely deferential. Further, the theory would apply to both federal and state elections. So one would not have a ruling that would apply only to federal races on the ballot but not state races.

One final point: if the Court adopts the Bush v. Gore concurrence-version of ISLT in this case, it’s not clear who wins the case given Thompson’s concession. Thompson did not argue that the NC Supreme Court ruling was crazy. Remember, he says any ruling on constitutional grounds is impermissible. So a 6-Justice majority siding with Common Cause? Or a 3-3-3 split where the 3 Justices in the middle decide whether or not the ruling of the NC Supreme Court was crazy? Or asking for more briefing? (One problem with that last course is that the case could become moot. The new Republican majority on the NC Supreme Court is sure to disavow the partisan gerrymandering theory at some point down the line.)

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“Private SCOTUS files that could reveal what happened in Bush v. Gore remain locked up”

Bush v. Gore reflections, Supreme Court

Joan Biskupic for CNN:

Internal Supreme Court documents that could enhance public understanding of the Bush v. Gore election battle and other significant cases of the late 1990s and early 2000s were to be opened last year under a deal forged by a long-serving justice, but the high court has delayed release of the materials, citing the pandemic.

The late Justice John Paul Stevens, whose tenure spanned 35 years, planned for most of his case files to be opened and “freely available” at the Library of Congress by October 2020. His arrangement with the library — the details of which have not been previously reported — covers cases up to October 1, 2005.

Along with the 2000 Bush v. Gore decision that continues to reverberate in election-law controversies, the trove would include documents related to two groundbreaking gay-rights decisions, a seminal University of Michigan affirmative action dispute and several post-9/11 Guantanamo detainee appeals.

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Twenty Years After Bush v. Gore, America Has Learned the Key Wrong Lesson

Bush v. Gore reflections, Election Meltdown

Today marks the 20th anniversary of Bush v. Gore. On the case’s 10th anniversary, I remarked that perhaps the anniversary would go more unnoticed on the 20th anniversary than the 10th, as many students I teach now about the case would have been in diapers back on Dec. 12, 2000. Unfortunately, I think the shadow of Bush v. Gore now looms larger than it did 20 years ago. It’s lesson to fight in every possible court over election rules hangs over our election system, and that events in recent days could have been at least somewhat averted had we learned the right lessons from 20 years ago.

Twenty years ago, we suffered from a hyperdecentralized, partisan election system, filled with pockets of election administrator incompetence and faulty voting machinery. The good news is that the country is much better at running elections and many fewer voters have their votes lost because of poor voting systems. I don’t mean to minimize those accomplishments in this post.

But it also became clear in Bush v. Gore that in very close elections, the rules of the game matter and that in close enough elections litigating over election results is possible. What’s happened since then, according to statistics I’ve compiled for my book Election Meltdown, is a near tripling of litigation in the post-2000 period compared to the pre-2000 period. 2018 set a record for election litigation, that surely will be be broken when I compile 2020 statistics.

The difference this time around is that we didn’t even need a close election for there to be extensive litigation. All it took is someone who is unwilling to concede a lost election and a willingness to raise (and reraise) frivolous claims. While the courts and decisionmakers from both parties courageously held the line (and deserve all the commendations for it), many Republicans were willing to endorse an anti-American antidemocratic gambit to steal the election through a frivolous legal theory. It is great that the courts held, but there will be no consequences (and perhaps even rewards like a pardon for Ken Paxton) to come out of the latest debacle. And Trump’s false claims of fraud will no doubt be the predicate for a new round of voter suppression measures to come in some Republican states.

Maybe this is just Trump, and he’s sui generis and things will revert to more normalcy in running elections and considering whether to bring election litigation in future elections. But I’m skeptical.

We could have done much more to fix our broken election system after Bush v. Gore, like having national nonpartisan election administration insulated from presidential control with greater uniformity of rules. This is the model of other advanced democracies around the world. If we couldn’t go that far, Congress could have established more uniform rules for elections, which could have helped during covid. Other countries are able to run elections during a pandemic without precipitating a 5-week-and-counting national crisis.

Bush v. Gore taught political operatives the key lesson to fight over every vote, and some that it is okay to try to make it harder from some people to vote to gain political advantage. Rather than create systems that make such litigation less likely to succeed, protect voting rights, and that bolster public support for our election process, we now have quadrennial angst over whether we can avoid an election meltdown after some states pass new voting restrictions in the name of preventing phantom fraud.

Trump or no Trump, Bush v. Gore has taught every presidential campaign the necessity of having election lawyers ready to go in battles across the country in a system where the rules of engagement remain uncertain. This is not normal for an election system, and it is putting our democracy under great stress. The problems won’t go away until we fundamentally rework how we conduct American elections.

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From the ELB Archives: Six Reflections on Bush v. Gore (10th Anniversary)

Bush v. Gore reflections

Six Reflections on Bush v. Gore

Posted on  by Rick Hasen

Today is the tenth anniversary of the Supreme Court’s decision in Bush v. Gore, ending the Florida recount and handing the 2000 presidential to George W. Bush. Here is a link to the reflections in this series:
Lyle Denniston, That Night at the Courthouse
Ned Foley, Bush v. Gore in Historical Perspective (Moritz)
Heather Gerken, Rethinking the 2000 Fiasco
Rick Hasen, Election Hangover: The Real Legacy of Bush v. Gore (Slate)
Nate Persily, Bush v. Gore in the American Mind
Rick Pildes, That Night Ten Years Ago
After reading Nate’s contribution, I wonder if the 20th anniversary will go even more unnoticed. In my Remedies class, I always teach about the most controversial stay order in history, the Supreme Court’s Dec. 10, 2000 order stopping the statewide recount of undervotes ordered by the Florida Supreme Court. I used to say to my students, with a great laugh: “There was a disputed election in Florida, you may have heard about it.” Now, ten years later, when I teach the same stay order, I say with a completely straight face: “There was a disputed election in Florida, you may have heard about it.” Many of those students were in middle school when Bush v. Gore was decided. In 2020, I’m guessing most students would have been in diapers when the case was decided. Time marches on.

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Ned Foley: “Is Texas v. Pennsylvania an obituary for Bush v. Gore?”

Bush v. Gore reflections, Supreme Court, The Voting Wars

The following is a guest post by Ned Foley, on the 20th anniversary of the Supreme Court’s decision in Bush v. Gore:

On the evening before the twentieth anniversary of Bush v. Gore, one of the most infamous Supreme Court cases in U.S. history (if hardly one of the most precedent-generating), the Court summarily disposed of the case that in some ways is the closest comparison to it.

            In Texas v Pennsylvania, this year’s case that most directly attempted to have the Court control the outcome of the presidential election—because it was a simultaneous challenge, joined by Donald Trump himself, to the electoral votes of four states, enough to make the difference in the outcome—the Court dismissed the case with a single substantive sentence: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.”

            Just imagine if twenty years ago, the Court had been equally dismissive of then-Governor George W. Bush’s efforts to overturn the recount ordered by the Florida Supreme Court, a single sentence something along the lines of “Petitioners have not demonstrated a sufficient basis for federal judicial interference with the State’s conduct of a recount in an election conduct pursuant to state laws and procedures.”  Who knows how history might have turned out differently?

            Perhaps nothing much would have changed; Bush still would have prevailed in the recount and thus become president, with all the implications that followed from his presidency, most especially the ill-fated Iraq war.  But maybe Gore would have won the recount—although that only would have set the stage for more contestation over the result, with Florida’s legislature appointing a rival slate of electors as it was already considering—with the dispute reaching all the way to Congress, and Gore having to decide whether he as Vice President would have to recognize Governor Jeb Bush’s authority to decisively certify the electors appointed by the legislature rather than the ones appointed pursuant to the court-ordered recount. That scenario, still resulting in George Bush becoming the 43rd president, would have set a different sort of precedent for how to handle these electoral disputes than the Court’s decision in Bush v. Gore.

            But Bush v. Gore appeared to judicialize the resolution of a presidential election. Insofar as Texas v. Pennsylvania emphatically refused to judicialize this year’s election, does yesterday decision effectively signal the death of Bush v. Gore? If so, it’s a lethal present for its twentieth birthday.

            My guess, and it can only be a guess given the brevity of yesterday’s decision, is that the two cases will sit side-by-side in uneasy tension until the next time the result of a presidential election gets litigated.  Until overruled, Bush v. Gore will continue to show that there is at least a range of issues, depending on when and how presented, that are susceptible to judicial resolution and could (at least conceivably) affect the counting of ballots in a way that would change the outcome of the popular vote in a pivotal state to determining an Electoral College majority.  At the same time, Texas v. Pennsylvania will now show that not every effort to undo the count of the popular vote in states that will determine the Electoral College outcome can be put in a form palatable to Supreme Court resolution. Next time, commentators will speculate whether a particular case is more like Bush v. Gore or more like Texas v. Pennsylvania—until the Court itself answers that question.

            The Court soon may add to the evidence that will affect this analysis. Still left over from all litigation about the 2020 election is the question whether Pennsylvania’s supreme court violated the federal Constitution by improperly deviating from the state’s statutory law concerning the delivery of absentee ballots. The Court may grant cert on this issue, although not in a way that would affect this year’s election, but instead to provide guidance for the future.  If the Court does say that the Pennsylvania Supreme Court violated the federal constitutional prerogative of the state’s legislature, the Court will be opening the door to a lot more litigation of this nature—as evidenced most clearly by the Texas case itself, where multiple versions of this claim were rolled into one omnibus lawsuit.  The prospect of opening that Pandora’s Box might be enough for the Court to keep it firmly shut, at least for as long as possible.

            But even if the Court decides to venture down this road, it would not necessarily want to do so in the procedural posture of deciding who wins the White House.  There would be a way to confine these claims to lawsuits brought before ballots are cast, analogous to the Purcell principle regarding the timing of election-related litigation. The only thing that remains true about Bush v. Gore twenty years on is that the Court is not especially comfortable picking presidential winners.

            Most assuredly, the justices feel better about themselves—and will have no regrets—having stayed out of Texas v. Pennsylvania, despite all of Trump’s jawboning about their need to get involved, compared to all the heartburn and regrets that Bush v. Gore caused as later admitted even by members of that Court’s majority.  

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Boies and Olson WaPo oped: “We opposed each other in Bush v. Gore. Now we agree: Biden won.”

Bush v. Gore reflections

Oped:

Twenty years ago, we represented the opposing sides in Bush v. Gore. We still don’t agree about how the Supreme Court ruled, but we completely agree that nothing in that case — or in the Supreme Court’s decision — supports the challenges now being thrown about in an attempt to undermine President-elect Joe Biden’s victory.

Yet, over the past week, we have heard repeated assertions that the outcome of this election is somehow in doubt, as it was in 2000.

It is not. Biden will be president. There are many areas of policy on which we disagree. But no matter how you voted in this election, that is the clear outcome. The nation’s laws and shared values dictate that Americans now unite to support democracy, national security, the public trust in institutions and the urgent work of the next administration.

It is also important for the public to understand why 2020 bears no resemblance to 2000.

The presidential-election controversies currently playing out in various parts of the country are not repeats of Bush v. Gore.

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“Bush v. Gore Veterans See Big Contrast to Current Legal Fight Over Election”

Bush v. Gore reflections

WSJ:

Lawyers involved in the 2000 Bush v. Gore election fight said the legal battle forming over this year’s presidential election stands in contrast to what took place 20 years ago, when the outcome turned on several hundred votes in a single state.

That clash ultimately led to the U.S. Supreme Court’s intervention in Florida’s manual recount effort and Republican George W. Bush prevailing over Democrat Al Gore.

“We are nowhere close to the perfect storm that was 2000,” said Jack Young, who served as Mr. Gore’s recount attorney.

In 2000, the election hinged on 537 votes in Florida, a must-have state for either candidate to pass the threshold of 270 electoral votes. In 2020, President-elect Joe Biden is ahead by tens of thousands of votes in several contested battleground states, and President Trump would need significant legal wins in more than one state to alter the result.

Barry Richard, an election lawyer who served as a lead attorney for Mr. Bush in Florida, said the 2000 legal challenges revolved around ballot designs, antiquated voting equipment and inefficient state statutes.

“Both sides acknowledged the ballots were defective and that many had been rejected by ballot-reading machines that probably shouldn’t have been,” he said. The issue was how to correct it. Officials spent weeks reviewing each ballot by hand.

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“The Supreme Court Should Stay Out of State Election Law”

Bush v. Gore reflections, Supreme Court

Akhil Amar, Vik Amar, and Neal Katyal NYT oped:

Just as they did in the infamous Bush v. Gore litigation in 2000, Republican lawyers are trying to get the Supreme Court to undermine state court rulings protecting voting rights under state law. Their theory? That state courts, by relying in part on state constitutions, are wrongly exercising power that belongs to state legislatures.

This idea that state constitutions are irrelevant, and that all that matters is what state legislatures say, is preposterous. Yet recent events suggest this wrongheaded theory may have some traction among the justices.

And this theory has huge consequences. It would mean that many of the decisions you are reading about, where state judges are applying state constitutions to protect the right to vote (say, by finding that ballots postmarked by Election Day will be counted, or that onerous witness requirements will be relaxed because of Covid-19) would now be fair game for the Supreme Court to reverse — even though these decisions are interpretations of state law by state courts.

So far, partisan attempts to involve the federal judiciary have failed, and rightly so. Early last week, the Supreme Court rejected an effort by Pennsylvania Republicans to overturn a Pennsylvania Supreme Court decision that votes postmarked by Election Day but received a few days later must be counted. The court deadlocked 4-4, letting the state court decision stand, with Chief Justice John Roberts joining the court’s three Democratic appointees in voting to leave undisturbed what the state court had done.

Now the Republican challengers are trying to bring the case back before the court, hoping to win support from its newest member, Amy Coney Barrett. We may see a similar push to overturn a second Pennsylvania Supreme Court ruling issued last Friday, also protecting state voters’ rights — this time to have their votes counted notwithstanding technical signature glitches in mail-in or absentee ballots.

Federal courts have no business interfering in state-law matters. As the three of us wrote back in 2000, the effort of several justices to hijack state law in Bush v. Gore was a disgrace. These justices asserted that the “Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required.” Of course, “fair reading” meant how these justices read state law, not how Florida’s expert judges saw the matter…

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