Today is the 20th anniversary of the Supreme Court’s Bush v. Gore decision, which stopped a statewide recount of 61,000 ballots that tabulation machines had missed. The recount had been ordered by the Florida Supreme Courton December 8, 2000 and since the current tabulation had given George W. Bush the majority of votes his campaign immediately asked the US Supreme Court to stay the lower court’s order and stop the recount. On December 9 the Court’s 5 conservative justices voted to grant the stay for Bush, claiming that the recount could cause “irreparable harm” by casting a “needless and unjustified cloud” over Bush’s legitimacy. Justice John Paul Stephens dissented, making the common-sense statement that “counting every legally cast vote cannot constitute irreparable harm”. Oral arguments were scheduled for December 11.
There were two questions the Justices considered in this case. The first was whether there was an Equal Protection Clause violation due to the fact that different counties used differing standards in determining what constituted a valid vote. The Court ruled on December 12 by a 7-2 margin that there was such a violation; they also decided that the state’s Supreme Court ordered recount only mandated a count of undervotes, and not overvotes as well. At this point any such violations could have been resolved by the Court mandating that all undervotes and overvotes be counted.
The killing stroke for the Gore campaign in was that the five conservative Justices ruled that December 12, the day of their decision, was the deadline Florida law had mandated for recounts, so that its certification could meet the “safe harbor” deadline whereby their results could not be disputed by Congress and that no recounts could be conducted past that date.
Looking back it’s hard not to conclude that the whole idea behind the conservative Justice’s decision to hear this case was based on the knowledge that if a stay were issued there would be no way that the recounts could be finished before the safe harbor deadline, thereby ensuring before they ever heard any arguments that Gore’s case would be doomed. Had the Court not intervened the recount could have been completed on time, and independent analyses have determined that if the statewide recount had been conducted Gore would have prevailed, adding Florida’s 25 electoral votes to the 267 he had already garnered, giving him 292 votes in total, 22 votes more than the 270 needed to prevail.
To my mind this was the most blatantly political Supreme Court decision in our nation’s history. It’s a safe bet that the conservative majority’s chicanery in this case is what convinced Donald Trump he could prevail in his efforts to have the results of the election overturned. Sadly, I believe the only reason he didn’t succeed in at least having a case heard was because the results didn’t hinge on just one state’s result; instead it would have required overturning the results of at least four states’ results, and not enough conservatives believed they could credibly make that ruling.