Think Bush v. Gore

Campaigns have the right to sue, but courts must be careful not to become political tools.

President Donald Trump’s campaign has turned to the courts in a long-shot bid to secure re- election.

As judges at every level do their duty to evaluate his legal claims, they must be careful not to allow themselves to be used in what appears to be a blatant attempt to defy the will of American voters.

“STOP THE COUNT,” Trump tweeted Thursday morning, echoing the chants of supporters in states where counting would not necessarily benefit him. Yet, over in Phoenix, hundreds more of his supporters were chanting “count the votes.” Why the disparate messages? Because they were based not on legal principle or some genuine concern about malfeasance but on pure partisan gamesmanship.

Trump’s desperate clinging to electoral possibilities in a race where he will again lose the popular vote by millions was assisted Wednesday by resourceful lawyering in Pennsylvania, Georgia and Michigan and other plans to seek a recount in Wisconsin. By Thursday state judges had ruled against him in Georgia and Michigan, and a series of decisions had gone both for and against his campaign in Pennsylvania.

Trump has so far been unsuccessful in efforts to drag the U.S. Supreme Court into the fray, though the campaign asked on Wednesday for the court to strike down a three-day deadline extension for counting late-arriving but validly cast mail-in ballots.

There is no indication those lawsuits will affect the outcomes in Pennsylvania or elsewhere. But judges weighing them, and any filed by the Biden campaign, should recall the troubling legacy of the last time an un- elected body in black robes picked a winner in a presidential election.

The Bush v. Gore case in 2000 has gone down as one of the flimsiest Supreme Court decisions in modern history, and one that has damaged the court’s standing.

It ended a recount that had been ordered by the Florida Supreme Court, effectively handing the election to George W. Bush. On Thursday, former Secretary of State James Baker said that even that case only got started after the votes had been counted — twice in fact. Bush’s margin of victory was so small on Election Day that state law required a recount, which shrank the margin further to just over 500 votes statewide.

The Bush team went to court to stop manual recounts ordered by the Florida Supreme Court, a difference Baker stressed Thursday.

The case left the court itself deeply divided. David Souter, a Republican appointed by Bush’s father, dissented. Even years later, he would weep when thinking of the damage the decision had done to the court he loved, according to Jeffrey Toobin’s 2008 book, “The Nine: Inside the Secret World of the Supreme Court.” Some other justices simply refused to discuss it.

Justice Sandra Day O’Connor, one of the most influential associate justices in the high court’s history, would come to regret her tie-breaking vote.

In 2012, O’Connor told the Chicago Tribune editorial board the decision had marred the court’s reputation.

“It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up,” O’Connor said. “And probably the Supreme Court added to the problem at the end of the day.”

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

The lesson from 2000 is not that Gore was the true winner of the election, as many Democrats still believe. By intervening to stop the recount of highly disputed vote totals, the court deprived Bush of the legitimacy he might otherwise have earned had the recount showed him the winner, as many subsequent analyses did. It also deprived the American people of the sense of ownership they should always have in an election, no matter which candidate wins.

Former Vice President Joe Biden’s comments Thursday that only the voters have the power to decide who wins were welcome — and they stand in stark contrast to Trump’s pre- and post- election refrains about electoral fraud on the American public and his baseless declaration of victory in the wee hours Wednesday while millions of ballots across the nation had yet to be counted.

Elections can be messy, and all candidates have the right to ask judges to decide thorny questions of law should they arise. But no good can come of a court allowing itself to be used as a political tool.

As Justice John Paul Stevens wrote in his dissent in the 2000 case:

“Although we may never know with complete confidence the identity of the winner in 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.”

Trump has spent most of his term poking more holes in Americans’ confidence in the judiciary. Judges must be careful not to aid him in that effort should they be asked to weigh in on disputes of law.

Now that the will of the people appears to be coming into focus, the courts should intervene only to clarify, not to obscure and obstruct.