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.