Trump revives Bush v. Gore in his crusade against mail-in voting

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The 5-4 ruling in Bush v. Gore ended a 36-day ordeal after the Florida results were too close to call. The dispute featured battalions of lawyers that descended on the state, challenged ballots with “hanging chads,” and multiple recounts under the glare of national television. Although the case still resonates politically, haunting close elections, its legal principle has long been regarded as a proverbial ticket good for one ride only. The Supreme Court itself has not cited the case in any ruling since then.
Still, as tensions rise over mail-in ballots, Trump persists with his unsupported assertions of fraudulent voting, and his legal team newly raises Bush v. Gore, some Democratic lawyers wonder whether the case may become less like the single-ride ticket and more like the axiomatic principle that, in the words of the late Justice Robert H. Jackson, “lies about like a loaded weapon ready” to be brought forward in a moment of need.

If the Trump campaign’s new legal approach succeeds, it could lead to the mass discarding of votes in November, a prospect that has drawn concern from some Democrats as states increasingly encourage vote-by-mail options because of the Covid-19 pandemic.

When the high court stopped the Florida recounts in 2000, giving the Republican Texas Gov. Bush the White House over Democratic Vice President Al Gore, it declared that county standards for assessing the intentions of voters on disputed ballots varied too widely to be fair. The court said the variations violated the 14th Amendment’s equal protection guarantee.

Yet the conservative five-justice majority also described its opinion in Bush v. Gore as “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

As a result, legal commentators have long viewed Bush v. Gore as a decision born of the political moment rather than one offering a solid precedent. Lower court judges have only sporadically referred to the case.

Trump campaign lawyers believe the case has new salience. They rely on Bush v. Gore in new lawsuits against mail-in voting in Nevada and New Jersey, most prominently in the Nevada case. They assert that states lack uniform procedures for balloting by mail in violation of constitutional equal protection.

In the Nevada lawsuit against the secretary of state, lawyer William Consovoy, who has been at the vanguard of much of Trump’s litigation, wrote that the mail-in regulations lack “minimal procedural safeguards” and constitute “unequal standardless treatment of Nevada voters across counties.”

Fact-checking Trump's continued assault on mail-in voting and suggestions of delaying the election
The new legal arguments echo Trump’s broader and unfounded attacks on mail-in voting as fraudulent. Multiple studies have found that widespread fraud in US elections does not exist. Still, there has been an acceleration of Trump claims on multiple fronts as some states prepare to send out ballots next month.

Consovoy declined to comment on the Trump campaign’s litigation strategy or the use of Bush v. Gore.

Recounts, hanging chads and the ‘Brooks Brothers riot’

The Bush v. Gore saga proved how a close, contentious race could tear apart the country, even in a less polarized time.

At stake two decades ago were Florida’s 25 electoral votes, which by the end of the November 7, 2000, election day were expected to determine who would be president. The race was too tight to call that night, although some news networks did declare Gore the winner of Florida, then Bush, then simply said they did not know. Gore even conceded the race to Bush, only to call and reverse himself.

That was a sign of the chaos and confusion that would seize the country in the next five weeks. As recounts began, the tallies shifted. A Florida state certification in late November, issued by a Republican secretary of state, put Bush ahead by a mere 357 votes out of nearly 6 million ballots cast.

Among the indelible images as recounts played out on national television were officials scrutinizing “hanging” and “dimpled” chads to discern voters’ intentions on a ballot and the “Brooks Brothers riot” at Miami-Dade County election office disrupting the recounts. It all ended just after 10 p.m. ET on December 12, with another memorable image, as news reporters raced across the Supreme Court’s marble plaza, the court’s decision in hand, to awaiting TV cameras.

The justices declined to take the bench to announce their unsigned opinion permanently stopping the Florida recounts. The same five-justice conservative majority had temporarily blocked the recounts three days earlier, also over protests from liberal dissenters.

The final decision found that Florida standards for assessing contested ballots varied from county to county resulting in “arbitrary and disparate treatment” among voters.

In the majority were Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. Dissenting were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

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That familiar conservative-liberal lineup stoked complaints of partisan politics.

Stevens, the senior liberal at the time, wrote: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

The high court has not referred to Bush v. Gore in any subsequent ruling, according to a search of the court’s website that includes the texts of cases. The single case citation appears passingly in a footnote in a solo dissenting opinion by Thomas in a 2013 Arizona voter-registration dispute.

Still, in a purely neutral vein, the case would have as much precedential value as any other Supreme Court decision and litigants would be free to use it, if they believed it persuasive to make their case.

Thomas is one of three justices (with Ginsburg and Breyer) still on the bench from 2000. Two justices who joined years later happened to have worked as lawyers with the Bush team in Florida: John Roberts, named chief justice by Bush in 2005, and Brett Kavanaugh, appointed by Trump in 2018.

Nevada and New Jersey lawsuits

The Trump campaign lawsuits invoking Bush v. Gore were brought by the Consovoy McCarthy law firm that has taken the lead on myriad Trump litigation, including the President’s effort to prevent his tax returns from being turned over to a Manhattan grand jury.

In the Nevada claim filed in on August 4, Consovoy particularly protested rules that would allow some late ballots to be counted and, separately, that require different numbers of polling places in urban and rural areas based on county population.

Nevada state officials have asked that the lawsuit be dismissed. A US district court judge has yet to rule on that motion.

The Democratic National Committee, Democratic Congressional Campaign Committee and Nevada Democratic Party were allowed to intervene in the Nevada case, under a US district court order issued Friday. In their motion asking to intervene, the Democratic groups had declared the Trump lawsuit “a hodgepodge of claims” that are not “viable.”

Submitted by lawyer Marc Elias, a veteran of many Democratic campaign battles, the motion describes the Trump lawsuit as “an attempt to undermine the state’s effort … to protect Nevada voters during a public health crisis.”

A separate federal court complaint from the Trump campaign was lodged against New Jersey on Tuesday, after Gov. Phil Murphy declared that all residents would be mailed ballots for voting this November. Residents may still vote in person but through provisional paper ballots to be checked for duplicate voting.

The Trump campaign presents numerous legal grounds, including those based on Bush v. Gore’s equal-protection rationale. Murphy’s order, Trump lawyers assert, “will result in New Jersey’s counties using varying standards to determine what is a legal provisional vote.”

Overall, the complaint echoes Trump’s public message trying to discredit mail-in ballots. It refers to potential voter fraud dozens of times and warns that the New Jersey plan arising from a public health crisis presents “a recipe for disaster.”

The Supreme Court! So hot right now!

As Trump continues to challenge mail-in voting, it is not difficult to imagine more Bush v. Gore-inspired litigation and even a possible replay of the milestone case in the guise of Trump v. Biden. How the current Supreme Court would rule defies ready prediction, beyond the likelihood that Chief Justice Roberts would play a crucial role as he has in the most recent important cases.

For years, Scalia famously admonished the divided nation regarding Bush v. Gore, “Get over it!”

It is plain that for adherents of the late conservative icon — Trump included — the mantra no longer holds.

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