TheLiberalOC accepts essays from guest contributors. We offer this article from Aron Solomon from NextLevel.com
Viewed through a political and legal lens, the events of this week are a stark reminder that we aren’t living in the past, no matter how we yearn for seemingly less complicated times. Literally, metaphorically, and practically, 2020 isn’t 2000, and the ceaseless comparisons to where we scenarios surrounding this week’s election as compared with where we were 20 years ago simply aren’t valid or helpful.
Bush v. Gore, 531 U.S. 98 (2000), was a case that went to the United States Supreme Court on writ of certiorari to the Florida Supreme Court. In this landmark case, the Supreme Court reversed a Florida Supreme Court request for a selective manual recount of Florida’s presidential election ballots. The 5-4 decision effectively awarded Florida’s 25 electoral college votes to Republican candidate George W. Bush, and put him over the top of the 270 electoral college votes needed to win.
This case was practically the polar opposite of any cases the Supreme Court might be asked to hear over the coming weeks. Aside from the superficial and obvious parallel of two legal cases twenty years apart and both related to a presidential election, there is nothing on the horizon in 2020 even remotely similar to 2000.
Bush v. Gore came out of a virtual dead heat in Florida. It looked as if then-candidate Bush was going to win in Florida, thereby propelling him to ascend to the presidency. Looking through a glass darkly at the realities of the moment, Mr. Gore called Mr. Bush to concede. Minutes rather than hours after that, the Bush lead had shrunk to 600 votes (0.01% of the vote) statewide and, much to the alleged vocal displeasure of Mr. Bush, Mr. Gore called him back to retract his concession.
According to Florida law, a machine recount of all votes cast was required because the margin of victory was less than 0.5 percent. As election lore would have it, both campaigns immediately formed teams of lawyers and political operatives (both Roger Stone and current Supreme Court Justice Brett Kavanaugh were intimately involved in the process). Any legal fact or fiction that either side could formulate was thrown at the other and at the courts. Many of these theories, such as conflict of interest (Jeb Bush was Florida’s governor, for example) were to an extent valid ones.
Less than a week after the election, the machine recount was done and Bush’s lead stood at 327 votes out of just over 6,000,000 votes cast. In bouts of throwing legal spaghetti against judicial walls, these included the legality of hand recounts in select counties.
This was the birth of two political terms that will never leave our collective election vocabulary: the hanging chad and the pregnant chad. The former referred to an incompletely punched paper ballot while the latter a paper ballot that was dimpled, but not pierced while the person was attempting to cast their vote.
There was also the issue of an absurdly bad ballot design used in Palm Beach county which allegedly caused confusion among some Gore voters. This was said to have caused many to vote for conservative third-party candidate Pat Buchanan, who received some 3,400 of his approximately 15,000 votes in Palm Beach.
What today may actually prove very similar to 2000, is that in the first 30 days following the 2020 election, around 50 individual lawsuits were filed concerning the various counts, recounts, and certification deadlines. On December 8, in a 4-3 decision, the Florida Supreme Court ruled that manual recounts were to proceed in all counties where a “statistically significant number” of presidential undervotes were observed.
The Bush campaign immediately filed suit, and within hours (note the speed) the Supreme Court granted and began to hear the case on the following day. On December 9, in a 5-4 decision, the Court held that the manual recounts needed to immediately stop and it agreed to hear oral arguments from both parties.
Only two days later, both legal teams presented their arguments, with the Bush team asserting that the Florida Supreme Court had exceeded its authority by authorizing the recount of undervotes and the Gore team vehemently arguing that this was not a matter for federal consideration as the Florida court had jurisdiction and made their decision.
Just a day later, the Court overturned the Florida decision, ruling 7-2 that the various methods and standards of the recount process violated the equal protection clause of the Constitution. The court ruled 5-4 that the Florida Supreme Court’s decision had created new election law (which only the state legislature could do) and that no recount could be held in time.
Stellar political theater that Bush v. Gore indeed was, today we find ourselves in 2020, where we aren’t aware of any chads, either hanging or pregnant. Our issues center around which votes should be counted and which should not.
Among the questions the Supreme Court may be asked to hear over the coming days and weeks may include:
- Will all legally-cast votes be counted?
- Will only legally-cast votes that were processed by a certain time be counted?
- How many provisional ballots were counted and what percentage of these were improperly or illegally counted?
- Was a recount proper in a given jurisdiction?
- Were completed ballots hidden, discarded, or destroyed?
- Were instituted state procedures out of the ordinary, deceptive, or illegal?
- Was the election, in whole or in part, fraudulent?
A fundamental difference today as compared with Bush v. Gore is that, at least at the time of writing this piece (early afternoon on Thursday the 5th) one successful challenge would not change the result of the election, nor, does it seem, would two. It would take a herculean legal effort of multiple ultimate state court decisions being accepted on a writ of certiorari by the Supreme Court of the United States, every one of which would need to be overturned in favor of the President/plaintiff. The chances of this happening are far less than a presidential election being decided on the validity of voting cards in one state.
We should keep front of mind that it’s within the nature of any court to occasionally be a catalyst of surprise. With a freshly-minted 6-3 conservative majority on the Supreme Court, The Trump campaign will no doubt work tirelessly over the coming weeks to ensure that they lay multiple foundations upon which this judicial election surprise can be built.
About Aron Solomon
Aron Solomon is the Senior Digital Strategist for NextLevel.com and an Adjunct Professor at the Desautels Faculty of Management at McGill University. Aron launched Sustain the Line, helping independent restaurants feed frontline healthcare workers. He was also the founder of LegalX at MaRS Discovery District in Toronto, one of the world’s first legal technology accelerators, and was elected to Fastcase 50 in 2015, which recognizes the world’s leading legal innovators.