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.
In the aftermath of Donald Trump’s electoral defeat by Joe Biden the president has filed dozens of lawsuits in numerous states trying to get the results overturned so he can be declared the winner. He has succeeded in a few instances, but the number of votes affected in those cases hasn’t been anywhere near enough to change the outcome of any state’s results. The majority of his attempts have been met with steadfast denial of his motions by the courts, even in federal courts presided over by judges he himself appointed to their positions. In every instance he has expressed his intention to appeal to higher courts, all the way to the Supreme Court if necessary. This course of action appears to be completely irrational to most observers until we consider just how successful Trump has been in the past with these kinds of tactics.
Donald Trump has lived his life doing exactly what he wants, when he wants and how he wants. If someone takes issue with his behavior he will usually bury his opponent in lawsuits, filing claims and motions, often without actual merit; he relies on his ability to continue paying lawyers to generate so much litigation against his adversaries that they eventually give up, either dropping their claims altogether because they’ve run out of money to continue fighting, or agreeing to settlements for amounts far below the value of the claim just so they can get on with their lives. It is because this strategy has worked so well for him in the past that he is pursuing it in his election challenges. The problem is that he doesn’t realize that this is a different kind of ball game than before.
If Donald Trump’s post-election adversary were Joe Biden personally, his scorched earth ploys might have a chance of succeeding. Biden certainly doesn’t have the financial resources to defend against all the litigation Trump is throwing at the issue, and it’s unlikely the DNC would be able to commit sufficient resources to help him overcome all that much. But the fact is that since the election is over Biden doesn’t have to defend anything, and Trump has to fight against the federal and state governments who have a vested interest in defending the integrity of the election process. Their combined resources are more than sufficient to beat back Trump’s efforts at every turn, and no amount of unsubstantiated claims of fraud will be able to cause any of them to raise the white flag and declare him the winner just to shut him up.
Donald Trump has been beating the bass drum of election fraud for the entirety of his presidential campaign, stating that the only way he would lose is if the election were rigged. Early on he came out in criticism of states’ allowing absentee ballots to be cast by mail, claiming without any proof that such a system was vulnerable to massive fraud. And when the state of Georgia was called for Joe Biden he claimed that the entire Georgia election infrastructure was corrupt, disregarding the fact that it was entirely run by the Republican party. Now we have a significant portion of Trump-supporting Republicans encouraging other Trump supporters to boycott the January Senate runoff races; some are claiming that the races are rigged and that voting in them will only help enable even more fraud, others are saying the Republican candidates Kelly Loeffler and David Perdue have not done enough to support Trump in his efforts to overturn the state’s election results and hand the victory to Trump. Even with full participation by voters from both parties these races are expected to be very competitive; if a significant number of Republican voters heed the calls to boycott the elections it will likely hand the victories to Democrats Jon Ossoff and Rev. Raphael Warnock, giving them a 50/50 split in the senate, which would allow Vice President-elect Kamala Harris to cast the deciding vote on any ties. It would appear that for the Republican party in Georgia, Trump’s attempts to discredit the election system in the state has succeeded a tiny bit too well.
There has been a great deal of speculation regarding the fate of President Trump once he leaves office. One of the issues that has generated the greatest amount of attention considers whether he might try to pardon himself. A similar question is whether he might instead resign before the end of his term so that VP Mike Pence could step in for the final few days and issue Trump a pardon. An analysis of either of these possibilities should begin with the question of whether either one is even allowed under the Constitution.
Article Two, Section 2 of the Constitution states the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”. The only time a president has received a pardon from another president is when Gerald Ford pardoned Richard Nixon “for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974”. It is largely because of this pardon that anyone is even considering the possibility that Trump might receive a pardon. What sets this pardon apart from all others is that at the time it was issued Richard Nixon had not been formally charged with any crime, so it sought to preempt any proceeding which might bring forth an indictment. Lots of people believe that Nixon’s pardon proves that Trump could be pardoned by Pence in much the same way, but that is by no means a foregone conclusion. The main reason the Nixon pardon stood is because no one sought to challenge its validity, whereas it is almost certain any such pardon issued by Trump or Pence would be subject to a court dispute.
The problem with such a broad, preemptive pardon as Nixon’s, as well as any liable to be issued on Trump’s behalf, is in its vagueness and the fact that the actual commission of any crime has not been established. How can a pardon be granted when no evidence has been presented that it even happened? Let’s remember that when a person accepts a pardon, he is actually admitting he is guilty of the crimes for which he received it. A pardon for no specific crime would appear to then be a pardon of every imaginable crime against the United States, from crossing against the light in a national park to molesting children in the White House residence; acceptance of every crime in general would rob the recipient of the ability to defend himself against any crime specifically. I don’t think any rational person, let alone the so-called “originalist” majority of Justices on the Supreme Court, would imagine that the Founding Fathers had such a broad interpretation in mind when they included the pardon power in the government’s founding document. Frankly, it makes no sense to think a pardon could be issued for an offense of which a person hasn’t even been accused, especially when no specific charge has been levied. Add to these things the fact that a presidential pardon, whether by Pence for Trump or by Trump for himself, would only help him avoid punishment for federal level crimes, leaving him still vulnerable to prosecution for crimes at the state level, where he would probably face the heaviest penalties in the first place. For all these reasons I personally doubt there will be any last minute pardons before Donald Trump leaves office as president.