Saturday, December 12, 2020

December 12, 2000: Bush v. Gore

December 12, 2000, 20 years ago: The Supreme Court of the United States overrules the Supreme Court of the State of Florida. It is the case of Bush v. Gore.

In the Presidential election of November 7, the Democratic nominee for President of the United States, the then Vice President of the United States, Albert Arnold Gore Jr., got more popular votes than the Republican nominee, Governor George W. Bush of Texas: Gore 51.0 million, Bush 50.4 million. Gore got 48.4 percent of the popular vote, Bush 47.9 percent. Ralph Nader, famous as a consumer advocate since the 1960s, ran as the nominee of the Green Party. He gets 2.9 million votes, or 2.7 percent.

Bush's brother, Governor John E. "Jeb" Bush of Florida, saw how close the vote was in his State, and tampered with the voting process, and that one State held everything up for 5 weeks. The best attempt at a recount, in downtown Miami, was interrupted on November 22 by what became known as the Brooks Brothers Riot. As a result, there were votes that were never counted. I don't mean they weren't recounted, I mean they were never counted once.

On December 8, the Florida Supreme Court ruled that all 61,000 "undervotes" had to be counted. Had that happened, Gore surely would have won. The Bush campaign immediately appealed to the U.S. Supreme Court. SCOTUS ruled on December 12:

* Four Justices ruled that the recount had to go forward: John Paul Stevens, appointed by Republican President Gerald Ford; David Souter, appointed by Republican President George H.W. Bush, the current Republican nominee's father; Ruth Bader Ginsburg, appointed by the current President, Democrat Bill Clinton; and Stephen Breyer, also appointed by Clinton.

* Five Justices ruled that the recount had to stop immediately, all of the appointed by Republican Presidents: William Rehnquist, appointed by Richard Nixon, and promoted to Chief Justice by Ronald Reagan; Sandra Day O'Connor, appointed by Reagan; Antonin Scalia, appointed by Reagan; Anthony Kennedy, appointed by Reagan; and Clarence Thomas, appointed by the elder George Bush.

It was pretty easily guessed that all 4 Justices who voted to keep the recount going would do so; and that 3 Justices known for being archconservatives -- Rehnquist, Scalia and Thomas -- would vote to stop it.

The question marks were 2 moderates: O'Connor and Kennedy. If either of them had voted to keep the recount going, it would have been kept going, and Gore would have won. Instead, both voted to stop it. And so, in an election where over 104 million votes had been accepted as counted, only two votes ended up mattering: Those of O'Connor and Kennedy.

It remains the ghastliest decision in the Court's history, aside from the 1857 decision in Dred Scott v. Sandford, that said that black people weren't citizens (a decision remedied by the 14th Amendment to the Constitution).

Gore conceded the election the next day, forever doomed to be "the 42nd 1/2 President of the United States" -- a President-elect, but never a President. On January 6, 2001, in his role as the outgoing Vice President, Gore properly read the Electoral Votes, including the 25 of the State of Florida. Whether those votes were properly arrived at is another matter.

(UPDATE: On that day, no Democrats stormed the U.S. Capitol Building in an attempt to stop the process. Twenty years later, of course, when it was Republicans who didn't like the result, they did storm the Capitol, and attempt to stop the process. They only delayed the inevitable.)

Rehnquist died in office in 2005. O'Connor retired right before that, and is still alive. Souter retired in 2009, and is still alive. Stevens retired in 2010, and died in 2019. Scalia died in office in 2016. Kennedy retired in 2018, and is still alive. Ginsburg died in office, 3 months ago. Thomas and Breyer are still on the Court.

Bush's term in office was an unmitigated disaster, both domestically (especially economically) and internationally. Had Gore been allowed to accept his victory, he would have governed completely differently, and most Americans, including the conservatives, would have been better off.

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