Did the Supreme Court give the White House to George Bush?
Did the Supreme Court give the White House to George Bush?
As the Court wades into Trump ballot mess, we are sure to hear false narratives about the Bush v. Gore case
The admixture of an upcoming super-politicized presidential election, along with the Supreme Court’s decision to hear the Colorado ballot case, causes the strongest toxic stew since three witches chanted, “Double, double, toil and trouble.”
As worries increase about judicial intervention in the election, we are sure to hear that in 2000, the high court chose the younger George Bush to be president. In fact we heard it last week, the distinguished legal reporter Adam Liptak declaring on the front page of the New York Times that the Supreme Court “handed the presidency to George W. Bush.”
And how? Stopping the voting! Bill Clinton has been saying for 20 years “the only way Bush could win” was by having the Supreme Court “stop the voting.”
Neither Clinton’s nor Liptak’s statements are factually true. The presidency was not conferred by the Supreme Court, and no voting was stopped in any state.
Clinton surely knows he’s lying – and knows it is an effective political lie oft-repeated by candidates and talking heads.
Liptak, with a degree from Yale Law, cannot seriously believe his own sentence. A consortium of news organizations, assisted by academic statisticians, found years ago that Bush was the bona-fide winner. The New York Times headlined the finding Justices Did Not Cast the Deciding Vote.
Before Donald Trump poisoned American politics, the Times reported factually about 2000. Now, with everything politicized, the most important newspaper echoes propaganda talking points. Through the haze of memory, plus cable-news and social-media distortions, millions have been convinced the Supreme Court staged an illicit coronation for George W. Bush.
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The Supreme Court did not “hand” the presidency to George W. Bush. Voters handed him the presidency, via the Electoral College.
This may have been wise or foolish – existence of the Electoral College may be wise or foolish! – but the public, not people in robes, made the choice.
The Court’s December 2000 pair of decisions in Bush v. Gore caused Al Gore to concede, ending the controversy. No votes were altered at any stage.
Asserting the Supreme Court “handed the presidency to George W. Bush” is the kind of statement that might be defended as literally true; but is intended to deceive, making it sound the Court pulled some kind of fast one. Rather than what actually happened – the Court declared the will of the voters must prevail.
Wisely or foolishly, voters chose Bush, as eventual recounts-of-the-recount-of-the-recount made clear. “Recount studies show Bush would have most likely won the Florida statewide hand recount… This goes against the belief the Supreme Court handed the presidency to Bush,” CNN reported in 2015.
Planting a false narrative of a stolen 2000 election into the American political mind laid the ground on which Trump’s 2020 stolen-election lies would walk.
In order to get that false narrative out of our collective minds, you’d think the New York Times would want what happened in 2000 understood. But the Democratic Party, and the hard left the Times exalts, have become too wedded to their own fabrications to face factual truth about 2000.
Here’s another often-made statement about 2000 – that a bitterly politicized Supreme Court favored Bush by a bitterly divided 5-4 margin.
Actually the first of two Bush v. Gore decisions, the one that caused Gore to concede, was 7-2. The Supreme Court was then three conservatives, three moderates and three liberals, a nice formula we can wish applied today.
The 7-2 vote was on the substantive Constitutional point. The second, 5-4 result, was procedural, about whether there was enough time left before statuary cutoff dates to allow more recounts. Alarmists advancing scare stories about 2000 mention only the 5-4 vote -- because the substantive vote wasn’t close.
Before we move on, let’s praise Gore for conceding with dignity to prevent the United States from being torn apart, just as Richard Nixon conceded the 1960 razor-thin vote with dignity to prevent the United States from being torn apart.
The words “with dignity” are never spoken in the same breath as the name “Donald Trump.” It’s deeply disgusting he continues to tell self-serving lies about 2020. Let’s hope the Supreme Court does the right thing and gives Trump the heave-ho from 2024 ballots.
Now – what really happened in the 2000 Supreme Court election cases?
First a summary of events following the November 2000 presidential vote.
At midnight Eastern the outcome was not clear, so my family called it a night. At 3 a.m. I woke and was curious. No Internet on phones then -- no iPhone then -- and the old hulking desktop computers took a long time to boot up. So I tiptoed into the kitchen where we had an under-the-counter TV, and clicked it on.
NBC was showing a wildly cheering crowd above the crawl, NASHVILLE TENNESSEE.
Aha, thought I, Gore won.
Tom Brokaw intoned, “Gore staffers at campaign headquarters cheer Gore’s retraction of his phone call.”
What the hey?
When it appeared Bush won, Gore called to congratulate the Texas governor.
Note to the entitled baby Trump: this is what honorable people do.
An hour later campaign captains told the vice-president that numbers from Florida were in flux, and the Sunshine State could swing the day to him. The strangest election since Tilden-Hayes in 1876 was off and running.
From here I will condense and simplify, no meaning is altered.
Based on the initial tally, Bush won Florida by 630 of 6 million votes. As the federal appellate judge Richard Posner would argue (in a law review article not from the bench), that’s so close it is “a statistical tie.” Counting is not accurate enough for anyone to know whether such a tiny margin is correct.
Florida law sent close races straight to recount, by machine. The recount found Bush still ahead, by a smaller margin. That the same machines counting the same ballots didn’t come to exactly the same conclusion illustrates what Judge Posner meant.
Florida law allowed Gore to request a hand recount. He did so only in four counties that usually go Democratic, calculating he could gain votes without Bush also gaining votes in the usually-Republican counties. This was Gore’s prerogative under statutes enacted by the Florida legislature, and Article II of the United States Constitution says states run federal elections “in such manner as the legislatures thereof may select.”
Undervote, overvote, dimpled ballot and hanging chads entered the national lexicon as hand recounting of the four counties ground on.
The recounts – slow and, as later would be shown, highly conscientious – were taking too long to finish before a statutory cutoff date of December 12.
At the time the Florida state legislature was Republican and the Florida state Supreme Court was Democratic. The governor – and in some election-deadlock scenarios the governor of the state where the dispute arises makes the final call – was George Bush’s brother Jeb.
Aside: if Gore simply carried his home state of Tennessee, he would have become president regardless of Florida.
But Gore had become such a creature of the Washington swamp that he was alienated from the ordinary people of Tennessee – just as swamp-dweller Hillary Clinton would in 2016 lose Arkansas, where she and Bill once lived in the governor’s mansion.
By late November, the federal Supreme Court and Florida Supreme Court were exchanging letters about circumstances of the hand recount.
Florida’s justices were dreaming up new recount standards intended to favor Gore. An overwhelming body of law and precedent held that voting standards cannot change once ballots are cast, else those in power would impose whatever recount standard favored their cronies.
As Judge Posner wrote, “Justices of the Florida Supreme Court thought themselves at liberty to strong-arm election statutes” by creating recount rules that didn’t exist on election day. The Florida Supreme Court began referring to the United States Constitution as “technicalities.”
There were two core questions – whether Florida (or any state) could change counting rules after the ballots were cast, and whether manual recounts in Gore-favoring counties (likely to find more votes for Gore) but not in Bush-favoring counties (so that more votes for Bush were not found) violated the equal protection clause of the 14th Amendment.
This clause requires that all votes be treated the same. Florida’s Supreme Court wanted to treat votes differently depending on which candidate was favored.
As this was being debated by courts, the nation became fascinated by the “butterfly” ballot employed in Palm Beach County.
The butterfly ballot – it looked like an open book – was extremely confusing. Many marked the wrong box.
The Palm Beach County butterfly ballot. Photo courtesy University of Wisconsin.
About 2,000 voters in Palm Beach County, which has a large Jewish population, voted for vanity candidate Pat Buchanan, a Holocaust denier. It was close to certain they meant to vote for Gore or for Ralph Nader (also running a vanity candidacy), but marked the spot for Buchanan in error.
Since if those votes had been marked for Gore he would have won, a conspiracy theory arose that the ballot had been designed to trick people into not voting Gore. But the county’s supervisor of elections, a Democratic official, came up with the butterfly ballot
Many in Palm Beach County seemed not to know that in Florida as in nearly all states, if you mark for the wrong candidate by mistake, you take the ballot to a proctor, who labels it spoiled and gives you a new one.
Hundreds of people who voted for Buchanan by mistake wrote GORE or Al GORE!!! (underlined three times) on their ballots. By Florida law, writing anything on a ballot voided the ballot.
Some argued, “If a voter wrote Al GORE!!! on a ballot, we know who the voter wanted.” We do, but Florida law, in effect on the day of the vote, called such a ballot spoiled. The Florida Supreme Court was reaching for a standard that would allow ballots like this to count, but not allow spoiled-ballots that said GEORGE BUSH!!! to count.
Hanging over all this was a statutory deadline of December 12. This cutoff date had been enacted years before the Gore-Bush campaign existed. Gore’s legal team wanted it suspended, so hand recounts could continue.
On December 12, 2000, the deadline day, the U.S. Supreme Court issued two opinions. The first – the substantive, 7-2 decision – found that tailoring vote-counting standards to favor one candidate over another violated the 14th Amendment. The second -- the procedural, 5-4 decision – said the deadline would not be extended. Rather than file more litigation, Gore did the honorable thing and conceded.
Dissenting from the 5-4 procedural decision, Justice Stephen Breyer wrote, “Counting every legally cast vote cannot constitute irreparable harm.” (Bush’s lawyers had advanced an irreparable-harm argument.) This line often is quoted, because it sounds as though the evil Supreme Court ordered that some votes not be counted.
But “every legally cast vote” was counted. What the Supreme Court’s 5-4 ruling stopped was the third count. Every vote was counted at least twice!
Votes had been counted once, by machine on election day, counted a second time, during the machine recount. The manual recount was the third time Florida votes were counted – not the first!
And in any event the larger, 7-2 ruling held that what Florida was up to was unconstitutional across the board.
Should the hand recount have been allowed to continue past the cutoff date? This would have required courts to say, “Laws only matter when they favor our side, otherwise laws can be ignored.” That is indeed how many people feel. Courts should not think this way.
Dissents from the 5-4 ruling suggested recounting might continue through January 2001, when the incoming new Congress could pick the winner. The Congress seated in on January 3, 2001, had a Democratic Senate and Republican House. Infighting would have been brutal.
“Fire burn and cauldron bubble,” say witches preparing potions for the 2024 election.
Judge Posner’s extensive analysis of the two decisions concludes the Supreme Court showed pragmatism by preventing open warfare inside the U.S. Capitol. This was a real threat, as the world would learn on January 6th, 2021.
And eventually it turned out Bush would have won, had the recount continued.
That wasn’t known at the time. A good rule of thumb: when outcomes cannot be known, stick to the law. Let’s hope today’s Supreme Court does not try to mind-read outcomes, rather follows the law in the Colorado ballot case.
And let’s hope today’s Supreme Court does not issue some narrow technical ruling on the Colorado primary alone, rather, resolves whether Trump can be on general-election ballots. That is what everyone really needs to know, and know soon.
The year 2000 was the first time in the modern period the Electoral College put the popular-vote loser into the White House. It happened again in 2016 and almost happened a third time in 2004, when George W. Bush took the popular vote but a change of about one-tenth of one percent in the Ohio vote would have put the loser, John Kerry, in the White House.
As microtargeting and other political techniques improve, Electoral College loser-wins situations may become norms. America would benefit tremendously from an end to the anachronistic Electoral College.
If the Electoral College ended today, that would help Democrats. But a generation ago, would have helped Republicans, and who can say what impact this would have a generation hence?
A coming All Predictions Wrong will look at the pros and cons of the Electoral College, plus the practicality of switching to popular vote for president.
The year 2000 laid the foundation for today’s endless claims of “election interference” (which can be a real thing but increasingly means, voting for someone I don’t like), “voter fraud” (a Sasquatch no search party has ever found) and “voter suppression” (Obama’s Attorney General Eric Holder called it “voter suppression” when North Carolina reduced early voting from a month to two weeks – a generation ago, no one in any state had early voting).
Underneath many of today’s specious claims about stolen elections, voter fraud and voter suppression is the widespread false narrative that in 2000, the Supreme Court handed the presidency to a conservative over a liberal.
Rightly or wrongly, voters handed the presidency to George W. Bush. That the front page of the New York Times wants you to believe otherwise shows the desperately low state of American political discourse.
Bonus: Me and Ballots. I was a proctor for the 1979 Chicago mayoral primary. In Chicago the Democratic primary is the real test – whoever wins is automatically elected in the general.
That year the primary pitted a rigid Machine official named Michael Bilandic, appointed to City Hall on the death of Mayor Richard Daley, against an unpredictable outsider named Jane Byrne. I backed Byrne, and as a proctor was watching for dirty tricks by Bilandic supporters; a Bilandic-backing proctor watched for dirty tricks by the Byrne side.
Voting was done by pulling levers in booth with a privacy curtain. At the time the Democratic Party always had a “straight ticket” option in which a single lever voted for the Democrat in all races. Though a voter was free to linger in the booth, “pulling straight ticket” took only a few seconds. If the voter lingered, that meant thinking for yourself. Party footsoldiers would take note.
A voter leaving one booth told me RICHIE DALEY FOR MAYOR was written inside. Richie was Richard’s son, and the favorite of Cook County patronage workers. (Richie would become mayor in 1989 and serve 22 mostly successful years; if only Chicago had him today.)
As a proctor, I ruled that the booth in question be sealed. The ward boss was present -- it’s Chicago, of course the ward boss was present -- and agreed. “This breaks my heart, but we have to stop using that booth,” he said. Actually being Chicago he said, “Dis breaks my heart.”
I relate the anecdote to show that even in Machine-controlled Chicago, voting rules were enforced – what the Supreme Court did to Florida in 2000.
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As usual, well well-argued and well-written. But the quote "Let’s hope the Supreme Court does the right thing and gives Trump the heave-ho from 2024 ballots." was passed over with no comment or explanation. I would REALLY like to hear your thoughts on why that is "the right thing." It seems there is a huge due process hole in there. If there is a statute reading "Murderers go to jail" can the Colorado Supreme Court now say "he is obviously a murderer, so send him to jail" without a murder conviction?
There is a valuable lesson from Florida 2000: prompt, accurate vote counting builds trust in the results. The longer it goes on, the more it appears questionable. It may not be questionable, but that is how it appears.
Ohio, where I live has voter ID laws; Indiana (where I used to live) had them. I chuckle, my father-in-law was the precinct worker checking IDs. He's a good ol' boy, everyone knows him. He checked everyone, even his close friends (and his son in law). His reasoning was if he checked everyone, people would trust the election outcomes more. He had friends grumble, but they came around to appreciate it.