Oh, hey, look: it’s December 12. Season’s greetings.
December 12 is, among a very elite few, one of the worst days in and for American democracy. On this date, 25 years ago, the Supreme Court decided a presidential election, baldly and openly on partisan lines and with partisan aims. Funny enough, it was also the first election in which I was able to participate. Yay me.
Bush v. Gore was a weird case. For background, the 2000 presidential election came down to the counting in Florida, all the other states having completed their counts and announced their winners. Sure, the media declared a winner, then took it back, then declared it again, then took it back again, then declared a mistrial, then declared bankruptcy, then declared war, then declared deductions on their tax returns. But in the end, we had no declared winner, and the count moved on. And on. And on.
The closeness of the election legally demanded a machine recount, and as a result, Bush lost some votes but was still marginally ahead. Following this, the Gore campaign requested manual (by-hand) recounts in some key counties (especially ones with weird ballot designs). You may have heard of hanging chads. This is where that part comes in: these ballots had little spots you would punch holes into to mark your choice. Surprisingly, this lead to a lot of ballots with little hangy things that we’re totally punched through. It would have been funny if it didn’t lead to what it lead to.
Now, Florida law required the final counts by a certain day – seven days following the election. It looked like there wasn’t enough time for the recounts to finish. The Florida State Supreme Court popped in to basically say “It’s okay if the vote tallies are late, as long as the Florida Secretary of State is okay with it.” Problem is: the Secretary of State of Florida was Katherine Harris, a partisan hack. You’re going to be shocked when I tell you she said “Nope, I’m not okay with it, but I will accept all these late absentee ballots lol.” (Back then the absentee ballots were nearly all from service-members overseas. You can imagine how they voted.)
The Florida Supreme Court returned with “Actually, fucking hold on, we’re stopping this all until we hear some arguments.” They finally decided to let the recount continue, but that’s when the U.S. Supreme Court got involved. The Bush campaign asked them to intervene, and they put the Florida court’s decision on standby, hearing the case on December 9.
So what was the case, Bush v Gore, about? Bullshit, really, but I’ll give you a quick rundown. The Florida court had demanded a manual recount of the votes, but not every county voted the same way or made the same decisions about contested ballots. This, argued the Bush campaign, was against the Equal Protection Clause of the 14th amendment. So, if the recount as started (remember, they had already started manually recounting the votes) was unconstitutional, there needed to be a remedy. The Gore campaign, while not accepting that the recount was unconstitutional, said that at the very least they could do a recount that was constitutional. But.
You see, there’s a weird thing in presidential election law that nobody thinks about because it’s never really come up. This is generally called the Safe Harbor date. Basically, there’s a deadline before the Electoral College meets for states to declare their slates of electors. It’s like “these are our folks, and by telling you their names you won’t try and tell us they are the wrong people.” It’s a soft deadline. But, the Florida legislature had also enacted a law that says that their election must be certified by that date.
That date was December 12. I would say in this story the date is coming quickly, but actually, it’s the same date the Court decided the case. So, the Court ruled finally, the recount as being done is unconstitutional, and there is no way you can do a constitutional recount by the Safe Harbor date because it is today. Sorry, out of luck.
I’m missing a lot of nuance and constitutional law here, but you get the point. Five on the Court said George W. Bush should be president because of some really strained logic, and four said “Um, wait, are you really saying a recount is unconstitutional and even if it is that it’s too late because of a fake deadline?”
The thing about this case, other than the result, is the audacity. The U.S. Supreme Court, while arguing they should get to involve themselves in a state election run in accordance with state laws, also said they got to choose the president. And if that’s not enough, it was with the most legally strained and pathetic reasoning.
Of course, to us now, it seems almost quaint. The past 25 years has seen the Court go back to the same well, since Trump was able to appoint three of the most conservative justices in modern history to pack a 6-3 court, we’ve seen some of the most ludicrous displays, leading of course to the Court ruling that President Trump can’t be charged for crimes and that as president he can do basically whatever he wants. We’re about to find out if he can fire members of independent commissions in direct contradiction to both actual written law and long-standing judicial precedent.
But it all started with Bush v. Gore.
