Category Archives: Bush v. Gore reflections

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

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)

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?”

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.”

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”

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”

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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“How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots”

WaPo:

Amy Coney Barrett was just three years out of law school, a 28-year-old associate at a boutique Washington law firm, when she was dispatched to Florida to help George W. Bush’s legal team rescue thousands of Republican absentee ballots.

The litigation was a sidebar to the central drama of the 2000 presidential contest, but a loss in thecase could have cost Bush the presidency.

At issue were thousands of absentee ballot request forms in Martin County — just north of Palm Beach County, home of the notorious “butterfly ballot” — that had missing voter registration information.

After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.

Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice.

This year, the Trump campaign and Republicans in Iowa have pushed to invalidate tens of thousands of absentee ballot applications with missing information that had been filled in by county officials.

“It’s the very antithesis of what we were arguing to the courts back then,” said Daryl Bristow, who represented the Bush campaign in the Martin County absentee ballot case and a related suit in nearby Seminole County. “We were trying to keep voters from being disenfranchised.”…

Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms, add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them.

The Democratic plaintiff argued those votes were tainted. “It was a sinister underground conspiracy,” argued his attorney Edward Stafman, according to newspaper accounts.

Along with the similar lawsuit in nearby Seminole County, Democrats were trying to nix roughly 25,000 absentee votes in a contest in which Bush was leading by 537 votes.

Back-to-back trials were held in Leon County Circuit Court in Tallahassee. The judges issued a joint statement: “Despite irregularities in the requests for absentee ballots, neither the sanctity of the ballots nor the integrity of the election has been compromised, and . . . the election results reflect a full and fair expression of the will of the voters.”

Democratic presidential nominee Al Gore, whose campaign was making the case that every vote must be counted, did not join the lawsuits.

“It tells you that sometimes what goes around comes around,”said veteran GOP election lawyer Benjamin L. Ginsberg, who served as national counsel for the Bush campaign, and noted that Democrats this year are fighting to expand which mail ballots are counted. “You have to admire the irony of the moment since that is not consistent with the position [Democrats are] taking now.”

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“Bush v. Gore’s Uniformity Principle and the Equal Protection Right to Vote”

This is a terrific new paper from Michael Morley (forthcoming, George Mason Law Review), though there are aspects I disagree with. Here is the abstract:

The U.S. Supreme Court cautioned in Bush v. Gore that its “consideration is limited to the present circumstances.” Pointing to this admonition, many commentators predicted that, despite the case’s immediate impact in resolving the 2000 presidential election, Bush v. Gore would have little lasting effect on constitutional law. Two decades later, these predictions have proven incorrect.

Bush v. Gore extended Equal Protection principles to the nuts-and-bolts aspects of election administration. The case established a Uniformity Principle that prohibits states from applying “arbitrary and disparate treatment” to different voters participating in the same election. This Article explores the Uniformity Principle’s subsequent development over the ensuing two decades based on a personal examination of all 471 federal and state cases that cited Bush through June 30, 2020.

Courts have applied Bush’s Uniformity Principle in three main contexts. First, they have generally invalidated laws that expressly require or allow materially different treatment of different groups of voters participating in the same election. Second, courts have been almost as skeptical of laws that expressly delegate authority to county or municipal election officials to set substantial voting-related policies. In particular, they have been generally unwilling to allow different jurisdictions within a state to adopt different voting systems with substantially different error rates. Finally, courts have been skeptical of laws that establish vague standards that are subject to a range of conflicting interpretations by local officials in different municipalities or counties. This is especially true in challenges to the constitutional adequacy of states’ ballot-counting standards.

In contrast, courts have been most resistant to applying the Uniformity Principle to selective restrictions on absentee and early voting, administrative “matching” requirements (including laws requiring election officials to determine whether a voter’s information matches official records), and challenges involving the restoration of felons’ voting rights. Citing a conflicting line of Supreme Court precedent from the Civil Rights Era, several courts have held that states are generally free to reduce barriers to voting and expand opportunities to vote, even if they do so selectively, only for particular groups of voters. In the years to come, a compelling need will likely arise for the Court to resolve the apparent conflict between these historic cases and the Bush Uniformity Principle.

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Charles Zelden on Florida 2000: “Guest opinion: Legislatures picking electors to the Electoral College: It could not only happen, it almost did”

Op-ed:

On December 7, 2000, in the midst of the Florida recount crisis, Florida Senate President John McKay and Speaker of the House Tom Feeney announced that, “the Legislature would choose the electors, as permitted by the U.S. Constitution, if the court disputes were continuing and there was not yet ‘finality’ on December 12.”  When the Florida Supreme Court announced a statewide recount order, the stage was set for a confrontation. So long as there was a chance for the December 12 “safe harbor” to be violated, the Republican legislators were set to act.

On Tuesday, December 12th, the Florida House did just this, voting in George W. Bush’s electors as the state’s official slate to the Electoral College. The next day the Florida Senate was prepared to do the same. It was at this point that the U.S. Supreme Court made the whole matter largely moot by issuing its ruling in Bush v. Gore.  With Gore’s quick concession, the need for the Florida Senate to act disappeared.

And check out Zelden on this podcast, talking about the third edition of his Bush v. Gore book.

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