Bush v. Gore - Trump v. Biden?

Coronavirus has led to changes in the way a variety of things are done. This includes voting. As a result of the pandemic a record number of Americans are expected to make use of postal voting. In addition to the obvious delays in counting, a drastic increase in mail-in ballots could have the impact of opening the floodgates of litigation, requiring the Supreme Court to take action, which could have decisive consequences for the result of the election.

Twenty years ago, the US presidential election descended into chaos. TV networks initially declared Democratic candidate Al Gore to be the victor only to reverse their decision a few hours later. Gore, believing he had lost to Republican George W Bush, set off to break the news of his defeat to his supporters. His campaign then learned that Bush’s lead in the swing state of Florida was within the margin of error. They raced to contact Gore before he announced his concession, succeeding just in time. What followed was a prolonged legal battle that would last over a month.

What happened in 2000?

Firstly, we need to appreciate how decentralised the US electoral system is. Unlike the UK, there is no independent national body responsible for running elections. Decisions are devolved not just to states, but even to the counties within them. Local partisan officials have responsibility for everything from the design of ballot papers, to the rules surrounding recounts.  This opens the door to bias in the administration of elections.

The 2000 presidential election hinged on Florida: whoever won that state would win the election. Florida’s election rules mandate an automatic recount when the vote is particularly close, as it was in 2000. This automatic recount, carried out by machines, cut Bush’s lead to only 327 votes. 

Gore then exercised his right to ask for a manual recount of votes in four counties of Florida (vote-counting machines cannot always decipher ballot papers). These four counties, being Democratic strongholds, might have tipped the balance in his favour. Unfortunately for Gore, they failed to complete the recount within the time limit. On November 26th, nineteen days after the election, the Republican official overseeing Florida’s election declared Bush the winner.

The Gore campaign started legal action. They had initial success: the Florida Supreme Court ordered a manual recount of the whole state. But this was duly appealed against by the Republicans. Litigation escalated until the matter came before the US Supreme Court in December.

The main issue before the US Supreme Court was whether the state-wide recount was in violation of the Equal Protection Clause of the 14th Amendment to the US Constitution, which upholds the principle that all votes should be equal. In the Florida recount, individual counties were using different criteria to determine whether to accept contested ballots. The decentralised voting system meant that a vote might be counted in one county, but an identical ballot paper might be rejected in another. The court found this to be unconstitutional, so ordered that the recount be stopped. They further decided (in a 5-4 split decision) that there was insufficient time to complete a new recount with standardised criteria. This ruling, delivered five weeks after polling day, finally brought the election to a halt. George W Bush was the victor.

Can we expect this to happen again?

American newspapers have been predicting post-election chaos in recent weeks. With the confirmation of Amy Coney Barrett shifting the balance of the Supreme Court to the right, some Democrats fear the legal system will once again play a major role in picking the President.

Jeffrey Toobin, CNN’s chief legal analyst (at least, pre-Zoom debacle), characterised the 2000 saga as being one of “Republican aggression versus Democratic restraint”. Over the past 20 years America has grown far more politically polarised, with many on the left seeing this election as an existential battle. He therefore predicts that neither side will be willing to deescalate this year, threatening a legal battle that could drag on for many weeks, potentially leading to civil unrest.

Politicians’ lawsuits will be no more than “a tweet with a filing fee”

A more optimistic view is put forward by Professor Justin Levitt, a electoral specialist. He argues persuasively that many of the important, contentious legal issues have already been settled by the courts: there have been roughly 300 election-related lawsuits already, mainly regarding postal voting and pandemic-related procedural changes. He anticipates that post-election legal battles will be more about messaging than any substantial issues. Politicians’ lawsuits will be no more than “a tweet with a filing fee”. 

Furthermore, the latest polls suggest the results this year are unlikely to be as close as in 2000. Fivethirtyeight’s modelling suggests only a slight chance that this year’s election will be decided via recount (in every 100 simulations they have run, only 4 have recounts). It seems unlikely, then, that we will see a replay of Bush v Gore. The past few years have taught us to take nothing for granted, but a (relatively) orderly transition of power seems to be on the cards. Nonetheless, it seems the USA is in dire need of election reform. A national, impartial body overseeing standardised election procedures could have helped avoid the chaos of 2000 and the uncertainty of 2020.