Have You Forgotten? Bush v. Gore 2000

I am not going to try and sell you the idea that everything Bush and the Republicans did was noble and aboveboard while Gore and the Democrats were motivated entirely by cheap partisanship. It's all very complicated, and mixed motives are the norm, not the exception in such circumstances.  However there is a continuing narrative that still gets put forth as obvious, with repercussions down to the present day.  Attorneys reading should feel free to chime in to correct or expand, but my intent is not to give a legal summary but to challenge the received narrative.

Bush v. Gore  Please note there is an error in the Wikipedia article, which claims in paragraph 4 that while Bush would have won anyway under the type of recount Gore was advocating, Gore would have won under a full-state recount. This is not known to be true. If you read the whole thing it is difficult to see where this is anything but speculation based on "Well, what if we counted the overvotes?" Counting spoiled ballots which nonetheless showed the clear intent of the voter might indeed have resulted in more votes for Gore.  I'll refer back to this at the end.

The narrative I have read and been told many times is that five SCOTUS justices appointed by Republicans voted down four objective and honorable justices on the basis of nothing but partisanship, awarding the presidency to Bush undeservedly. It remains a shameful episode in the history of the court, and undermined the public's confidence in that institution. That Jeb Bush was governor is also mentioned darkly, that he was in on the fix, too, though exactly what he did isn't identified. Just the usual Darth Vader music in the background.

It's hard to prove a negative, so yes, perhaps, if we had a Motive-o-Meter and scanned each of the justices as they were deliberating, we would see dark stains on the souls of Rehnquist, Thomas, O'Connor, Scalia, and Kennedy contrasting with crystal hearts of Souter, Breyer, Stevens, and Ginsburg.

There are some facts which are usually left out of the discussion, however, which suggest that at minimum, there is another side to this which is not easily dismissed. First, the justices ruled 7-2, not 5-4 on the question of whether there had been an Equal Protection Clause violation, as Bush claimed. Five of those justices said the deadline is the deadline, we're done. Two justices joined that decision, Souter and Breyer, agreeing that there was a violation, but thought it should go back to the Florida Supreme Court to decide what to do. I don't think that's crazy, by the way.  Yes, it is possible to impute partisan motives to them, because the Florida Court had all been appointed by Democrats and had tipped its hand what it might do. Yet without mind-reading we are back at the same finger-pointing with no evidence. I am nowhere near informed enough in the law to tell you whether that is the best, or even a defensible position, but on the surface it seems reasonable the SCOTUS tell Florida to sort out its own mess, after noting there had been a finding there was a violation, contrary to that court's earlier ruling.

Let me hit that key point again:  7-2 on Equal Protection, which to me looks like the central issue.  Not 5-4.  5-4 was for "What remedy?"

The legal arguments at this point revolved around whether there should be a deadline extension for recounts, whether Kathryn Harris had the authority to shut the thing down, whether started recounts that had been shown to be not-quite-right should be resumed, abandoned, or restarted. The popular arguments were much simpler: "You're cheating!" "No, you are!" As usual, everyone was suddenly an expert on Florida election law, the intent of the Florida legislature, Article II of the US Constitution, and the Fourteenth Amendment. Who says the schools aren't doing their job in civics?  Why, we can produce millions of experts overnight, with no additional training.

Let me jump back just a moment to the Florida Supreme Court. It's not in the Wiki article, but they had ruled 7-0 that there should be statewide manual recount, according to their interpretation of the law and the intent of the legislature.  Gore had only asked for four Democratic counties to be recounted, but they thought it was better to recount everything.  Bush appealed, and the SCOTUS sent that back quickly saying "What was your reasoning there? Show your work."  At the time, I was told this was a major slap in the face, but I don't know if that's true.  However that was, when asked to produce the reasoning, three of the seven changed their mind. The court ruled 4-3 for the statewide manual recount, and Bush appealed that, claiming that the rules for what was a legal vote varied from county to county. The Gore team countered "So what?  It's the intent of the voters that matters, not whether the technical definition of a legal vote is the same."

Back to the SCOTUS just for a moment, and then we're nearly done. In the 5-4 decision of "What remedy should there be for this violation of the Equal Protection," three justices (Scalia, Rehnquist, Thomas) really wanted to sock it to the Florida Supreme Court that they had acted contrary to the will of the legislature, while two (Kennedy, O'Connor) said, "No, we wouldn't go that far" and didn't sign on.  The four dissenting justices (Stevens, Souter, Ginsburg, Breyer) said the opposite, that the Florida Supremes had jolly well not acted contrary to the legislature, they had gotten it right the first time. I can see some sense in all the sides here. The rulings of the justices sort of break down 3-2-2-2, depending on what question is being asked. Rather like arguing the Crusades, which popular imagination pictures as having two sides, when really there were at least four.

The irony piece.  Had the Gore team dared to take a long-term political risk, they likely would have won.  Spoiled ballots are three times more common in black districts. They could have tried to sell that idea as black voters being undercounted (there's that thing about overvotes, which I don't believe are counted anywhere) thereby, and had they won that, broadening the standard for what constituted a legal vote, Gore would very likely have gotten more votes. But to bring that up would be insulting to black voters, which might have cost them in the long run.  I don't think it would have, myself, but I am notoriously bad at this sort of horse-race analysis in politics.