Bush v Gore 2: Despotic Boogaloo
SCOTUS, if you're listening ...
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Picture it! America, two days after the election. Neither candidate has reached 270 electoral votes. Just one or two states have yet to be called, and the result will likely come down to a few thousand contested ballots. The candidates have filed multiple lawsuits in state and federal court, seeking any advantage as they try to grind out the last few votes and get over the finish line.
Or, if you’re over the age of about 40, remember it! Because that’s exactly what happened in 2000, when the fate of the nation hung on a few thousand ballots in Florida. Twenty-four years ago, the Supreme Court’s conservatives ordered the counting to stop, with George W. Bush just 538 votes ahead of Al Gore. Bush was inaugurated, and Al Gore went on to warn us about climate change in the private sector.
And while memories of the disastrous post-election period in 2020 are fresher, 2000 may be a better predictor of what’s to come this cycle.
This is not 2020
In 2020, we were in the midst of a global pandemic. Election officials did their best to ensure access to the ballot, making it easier to vote by mail and engaging in creative voter outreach, such as registering voters in public parks and collecting ballots in conveniently located drop boxes. Republicans, who are not in the business of expanding the franchise, sued to block these measures and, for the most part, they lost.
During the post-election period, Trump and his allies mainly talked about fraudulent ballots and voting machines haunted by gremlin algorithms. But after four years in which they failed to produce any evidence of this fraud, they’ve now shifted their rationale slightly.
When pressed by Joe Rogan last week about his claim that the 2020 election was stolen, Trump insisted that increasing ballot access during covid lockdowns was illegal and thus invalidated the results.
“They were supposed to get legislative approval to do the things they did, and they didn’t get it in many cases,” he babbled. “Like for extensions of the voting, for voting earlier. All different things. By law, they had to get legislative approvals. You don’t have to go any further than that.”
Trump’s claim, although he almost certainly doesn’t understand it, harkens back to the Supreme Court’s holding in Bush v. Gore. (More on that in a moment.) But if he’s hanging his hat on pandemic modifications as evidence of fraud, that argument simply will not fly this year when we have returned to more or less “normal” patterns of voting.
Just as saliently, with President Biden in the White House, Trump has very little hope of running the 2020 fake electors scheme — he can hardly expect Vice President Harris, who will be president of the Senate on January 6, 2025, to reject the real electoral certificates if she emerges victorious in November. And while the Justice Department under Bill Barr was willing to hype spurious claims of election fraud, Attorney General Garland will not.
Let’s do the Time Warp againnnnnn
On the Wednesday after the election in 2000, every state but Florida had been called. George W. Bush, whose brother Jeb was governor of Florida, was ahead of Al Gore by fewer than 2,000 votes. This tiny margin triggered a mandatory recount, which was disrupted by a bunch of Republican lawyers, including Ted Cruz, who tried to shut it down in what became known as the Brooks Brothers Riot.
On December 8, 2000, with Bush down to just a 538 vote lead, the Florida Supreme Court ordered a hand count of 61,000 ballots, instructing canvassers to tabulate undervotes from “hanging chads,” the paper tabs which sometimes failed to detach from punch card ballots. With 9,000 undervotes in highly Democratic Dade County, this was pretty clearly going to put Gore over the top. But on December 9, the US Supreme Court stopped the count, and four days later it issued a garbled 5-4 opinion claiming that it was simply too late for the state to complete the canvas and meet certification deadlines.
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The ruling was nakedly partisan and a great blow to the Court’s legitimacy. But Bush v. Gore’s legacy continues thanks to this particular section:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.
The Court’s holding itself was rooted in an equal protection argument. But the conservative justices added this language suggesting that the Constitution grants state legislatures “plenary” authority to control elections. And that is what became known as the independent state legislature theory.
Adherents believe that legislators cannot be constrained by courts, or secretaries of state, or even ballot referenda, and may, as the Supreme Court suggested, even “take back the power to appoint electors.” That is what Trump was mumbling about to Joe Rogan, and it’s coming up in a bunch of different contexts this year.
Maryland Republican Rep. Andy Harris got caught on video saying earlier this month that he believes that North Carolina’s legislature should simply declare Trump the victor, citing the impact of Hurricane Helene on the state’s Republican voters. (Watch below.)
Harris’s comment came in the context of a speech by Ivan Raiklin, a frequent speaker at MAGA events who has described himself as Trump’s Secretary of Retribution. In 2020, Raiklen aggressively promoted the “Pence Card” plan to have the vice president toss out the ballots. This time he insists that the legislatures of Arizona, Georgia, Nebraska, New Hampshire, North Carolina, and Wisconsin should simply convene on November 5 and declare Trump the winner.
At this point, there’s no widespread support for a plan to simply steal the election in state legislatures. Indeed, the Electoral Count Reform Act of 2022 clarified that state legislatures cannot simply cancel the election after ballots have been cast. (Although ISL truthers insist that law is unconstitutional.) Also, the Supreme Court issued at least a partial repudiation of the ISL theory in 2023’s Moore v. Harper, holding that “The Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections,” and so state courts can weigh in on issues of state election law.
But Trump’s allies are still making plans to replicate Bush v. Gore in hopes of ensuring another GOP victory, irrespective of the will of the voters.
It’s the provisionals, stupid
If the race is very close, Republicans will challenge tranches of untabulated ballots and hope the Supreme Court’s conservatives agree to jump in again like they did 24 years ago (and also in July with their scandalous immunity holding in Trump v. US). This strategy rests on having a pool of votes uncounted, or at least contested, at the end of the process, and the most likely source is provisional ballots.
Provisional ballots exists nationwide thanks to the Help America Vote Act, which was passed in 2002, in part because of widespread outrage that so many voters were turned away from the polls in 2000. Under HAVA, individuals who are not on the official list of registered voters are entitled to cast a provisional ballot if they sign an attestation that they are eligible and have not already voted. After all the rest of the in-person and mail-in ballots are tabulated, election officials determine the eligibility of provisional voters and tally their ballots. This makes the provisionals a prime target for Republicans hoping to repeat 2000.
First, conservative activists are trying to force as many Democratic voters as possible to cast provisional ballots. In North Carolina, hordes of volunteers are poring over the rolls looking for voters to challenge. CBS reports that James Womack, chair of the Lee County Republican Party, told his trainees, "If you've got folks that you, that were registered, and they're missing information … and they were registered in the last 90 days before the election, and they've got Hispanic-sounding last names, that probably is, is a suspicious voter.” In Georgia, Republicans challenged the eligibility of more than 63,000 voters. And nationwide, an army of GOP “observers” is poised to challenge voters at their polling places.
Not all of these challenges will force voters to cast provisional ballots. Indeed most challenges have been disregarded in Georgia. But in a close election, a few thousand contested ballots might do the trick. And Republicans are not confining themselves to challenging individual voters.
In Pennsylvania, the state Supreme Court ruled last week in a 4-3 decision that voters who mess up their mail-in ballots may cast provisional ballots on election day and have them counted. It’s notoriously easy to mess up a mail-in ballot in Pennsylvania, which requires multiple signatures and two envelopes. Republicans have long argued that voters should not be able to “cure” defective ballots, claiming that the ballot is “cast” at the moment when it is delivered to the registrar, even if it is never counted. The majority ruled that a discarded ballot was never “cast,” and thus a provisional ballot must be counted in cases where the original mail-in ballot was defective. But in dissent, Justice Sally Mundy all but instructed the RNC to lodge an appeal to the Supreme Court on independent state legislature grounds.
She wrote that the majority opinion “exceeded the scope of judicial review and usurped the General Assembly’s power to regulate federal elections” and accused the four liberal justices of “unconstitutional intrusion upon the role reserved to state legislatures by the Federal Constitution.” Unsurprisingly, Justice Mundy’s dissent features prominently in a petition for certiorari filed with the Supreme Court on Monday urging the justices to either reverse the Pennsylvania high court or order officials to segregate the contested ballots from the rest of the provisionals. This would conveniently leave a tidy pile of ballots that might be zeroed out in a Bush v. Gore scenario where the Supreme Court could ensure the victor by waiting for Trump to be ahead and yelling “STOP THE COUNT!”
And if that doesn’t work, Republicans are filing lawsuit after lawsuit challenging overseas and military ballots, ballots postmarked by election day but which arrive a few days late, and the supposed failure of secretaries of state to “clean” their voter rolls. Meanwhile, upwards of a million voters have been purged from the rolls in Texas alone, and tens of thousands of people may get a nasty surprise when they show up to vote next week and find themselves mysteriously ineligible. All of this is in service of reinforcing a false narrative that the polls are riddled with non-citizen voters, while sowing chaos and confusion in hopes that the Supreme Court will once again step in and “resolve” the “problem” by choosing the winner.
It’s a remarkably craven exercise, and wholly antithetical to democracy. But on Wednesday morning, the Court’s six conservatives used the shadow docket to greenlight a purge of the voter rolls in Virginia, in blatant defiance of the National Voter Registration Act’s ban on systemically disenfranchising voters in the 90 days before an election so … ¯\_(ツ)_/¯
That’s it for today
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Thanks for reading.
Excellent and important piece. Thank you!!
There have been a lot of people saying they aren't worried about trump stealing since "Democrats are in power" right now. This provides the evidence that we must win this by a very large margin. It shouldn't require us to win by a suoer majority, but unfortunately, that is the case in 2024.
I hope everyone who has said they aren't concerned are reading Public Notice!! Vote blue all the way down the ballot!!
I early voted last week, for Harris/Walz & all blue candidates, & for Florida Amendment 4 for women’s healthcare/pro choice/abortion rights. Florida has an overabundance of registered Republicans, but hopefully they aren’t all rabid MAGA supporters, & can vote to support democracy.
I waver between feeling hope that the Democrats win the Presidency & Congress, and feeling despair that they don’t. When we can finally call Kamala Harris « Madam President », I hope that one of her first priorities is to address the corruption of the Supreme Court. There is no reason that the Justices, who are appointed for life, should be above the law. Some have proven they are not worthy. We need to act on this quickly.