What 2000 Bush v. Gore Decision Teaches Us

As Trump steadily falls behind in the final vote count in the crucial states of Pennsylvania and Georgia, former Vice-President Biden will now win the electoral college vote and be declared the next US President.  In response, President Trump has been for some time making unsubstantiated claims of "fraud" in the final vote counts in those states and others he has lost, and his surrogates have begun filing multiple lawsuits challenging the conduct of the vote count and results in many of the states that Biden has either won or is expected to prevail, including Nevada, Pennsylvania, Michigan and Georgia, while also calling for recounts in at least Wisconsin and Georgia, and perhaps others.

As part of his public relations campaign to overturn the election result, President Trump has also repeatedly stated that he wants the United States Supreme Court to somehow get involved and hand him the election. Given this rhetoric, it is worth reviewing the facts and circumstances that led the United States Supreme Court to get involved in a US Presidential election in 2000, in the now infamous Bush v. Gore decision, to examine what relevance that decision may have on present circumstances.

In 2000, the closely contested Presidential election between then-Democratic candidate Vice-President Al Gore and Republican party challenger George Bush came down to a disputed vote in a single state, Florida.  At the end of the initial vote counting, both candidates were still short of the required 270 electoral college votes needed to be declared President because the results in Florida were disputed.  In short, whoever was declared the winner in Florida would become the next President.

At the initial close of the voting in Florida, Republican party challenger George Bush had an approximately 7,000 vote lead statewide over Democratic candidate Al Gore. Both parties initially made multiple challenges to the count on a variety of grounds, but after a few weeks, the principal challenge by the Democrats focused on the vote count in the three very populous counties around Miami, which at the time were heavily Democratic leaning.  These counties used a form of ballot (no longer used) where the voter was required to use a hole puncher to punch a hole in the small square next to the candidate of their choice.

In the initial vote count in these three counties that was used to give the Republican challenger Bush his approximately 7,000 votes statewide lead, an unknown number of the ballots in these three counties were not counted for either candidate because the hole punch was not complete. These were famously labeled the "hanging chad" ballots, referring to the fact that if a hole punch was not complete, it left part of the paper (called a "chad") still hanging onto the ballot.

The Democrats successfully argued initially in Florida state court that there should be a partial recount in these three counties on the ground that a partial hole punch was sufficient evidence of the intent of the voter to counted for that candidate. Because these three counties were heavily Democratic leaning, it was widely assumed that such a recount had a strong likelihood to award enough of these disqualified votes to Vice President Gore that he would overtake the 7,000 votes statewide deficit and win Florida and the Presidency.

The issue of whether to order such a partial recount in these three counties alone was litigated up to the Florida Supreme Court.  At the time, the Florida Supreme Court had a majority of Democratic party-appointed judges. After hearing argument on the issue, the Florida Supreme court ordered the recount in these three counties only.

Bush and the Republicans in response asked the United States Supreme Court to review the decision of the Florida Supreme Court, arguing that it violated the United States constitution. Because federal constitutional issues were being raised, and the issue involved the review of a final decision of the highest court of a state, the United States Supreme Court has the jurisdiction, at its discretion, to review a final decision of a state's highest court that implicates federal constitutional issues. The Supreme Court accepted the request to review Florida's highest court's decision.

The federal constitutional issue being raised by Bush and the Republicans was the argument that because the Florida Supreme Court had only ordered a partial recount of three counties, the decision denied the due process rights of all of Florida voters.  The argument was that the Florida decision violated the due process clause of the federal constitution which states that all persons are entitled to due process of law because only the votes of Floridians in the three counties were being recounted.

At the time, the US Supreme Court, led by Chief Justice Rehnquist, was politically split comprised of five Republican appointees and four Democratic appointees. The conservative majority of five, led by Justice Rehnquist, had made a central tenant of their judicial philosophy that using the due process clause of the federal constitution to "create rights" not contemplated by the original drafters of the constitution was improper, and abuse by "activist" judges trying to stretch the original intention of the drafters of the Constitution.

Many Supreme Court watchers, therefore, assumed that this appeal by Bush and the Republicans to the US Supreme Court on the basis of a judicial theory wholly at odds with one of the central tenants of the conservative "originalist" justices, had little chance.

In the end, political expediency was the victor over judicial integrity and philosophy.  In a five to four decision, authored by Chief Justice Rehnquist, the US Supreme Court in Bush v. Gore ruled that the recount in those three counties must not take place, because it violated the due process rights of all Floridians. Upon issuing the decision, Bush was declared the winner of the 2000 Presidential election, Gore conceded, and Bush became President.

There are many, many differences between the current situation and what happened in 2000.  First, and most importantly, Biden will likely win the final count of votes and the electoral college by a margin of victory in much more than just one state, as occurred with Florida in 2000, but will actually win Michigan, Pennsylvania, Georgia, any one of which alone without the others would have given Biden the electoral college victory.  President Trump has started bringing legal challenges in all three states, without any factual foundation, but will have to win in three separate challenges to overturn the result, not just one.

Second, contrary to President Trump's assertions that this election will be reviewed by the US Supreme Court, the Bush v. Gore situation shows that the US Supreme Court lacks original jurisdiction to directly review the results of any election, but instead at most can at its discretion review election-related issues as they arise to and are adjudicated by the highest court of a state, assuming they involve some federal constitutional issue. The lawsuits being filed now by Trump's team are largely unsupported claims of "fraud," and do not raise any federal constitutional issues.

The one exception where the US Supreme Court has already gotten involved is a lawsuit already brought by Bush and the Republicans before the election that rose up to the Supreme Court of Pennsylvania. The issue raised was whether or not ballots postmarked before or on the day of the election, but received within three days after election day, could be counted in Pennsylvania.

The Republicans argued that the Pennsylvania legislature had not provided for counting ballots postmarked before or on the election day, but then received during the three days after election day. The Pennsylvania Supreme Court ruled that on the basis of Pennsylvania state constitution language encouraging voter participation, counting ballots postmarked before or on the day of the election but received within three days after should be allowed.

Before the new Supreme Court, Justice Amy Barrett was confirmed, in a 4-4 split decision, the United States Supreme Court reviewed this decision of the Pennsylvania Supreme Court and effectively ruled that they would not overturn that decision (when the US Supreme Court ties, the lower court's decision being reviewed stands). Republican-appointed Chief Justice Roberts sided with the three liberal Democratic-appointed Justices. However, in dissent, three of the other Republican conservative justices indicated that they wanted to revisit this question again after the election. The subtext was that once Barrett joined the Court, she would be the fifth deciding vote to overturn the Pennsylvania Supreme Court's decision.

In deference to the dissenting opinions of the conservative justices, the Pennsylvania election officials have been segregating any ballots that fall in this category, in anticipation of another potential appeal to the US Supreme Court. However, the facts on the ground have overtaken any importance of this issue.

As of today, the number of ballots that fall into this disputed category are only approximately 2,000, a very small amount of the approximately 5 million votes cast in Pennsylvania.  As of this writing, Biden is expected to win Pennsylvania by approximately 50,000 votes.

When Trump and his lawyers try and bring this issue back to the United States Supreme Court, most Supreme Court watchers do not expect the Court to take up the issue again, because, given the small number of ballots impacted and the absence of any effect on the outcome of the vote in Pennsylvania, the issue is moot.

(Geoffrey Coll, a partner at Thompson Coburn in Washington, DC. Views are personal)