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.
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.”
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.
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.
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.
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.
Nevada and New Jersey lawsuits
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.”
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.
It is plain that for adherents of the late conservative icon — Trump included — the mantra no longer holds.