USA TODAY International Edition
Why vote fight won’t be like 2000
Al Gore’s Florida challenge was a different situation
WASHINGTON – Around 2: 30 a. m. on Nov. 8, 2000, Democratic presidential candidate Al Gore had called his Republican opponent, George W. Bush, to concede, and he began making his way to the War Memorial Plaza in Nashville, Tennessee, to address his supporters.
Gore retracted his concession only an hour later. And networks retracted their projections that Bush had won Florida’s 25 electoral votes. By the time the sun rose, the presidency remained undecided. Bush was ahead by only 1,784 votes out of about 6 million cast in the state, a very narrow margin that triggered an automatic recount.
What followed was five tumultuous weeks of back- to- back legal fights that reached the U. S. Supreme Court. Gore pushed for manual recounts in certain counties; Bush pushed back against them. By December, the high court ruled 5- 4 in Bush’s favor to stop the manual recounts. The final tally had Bush ahead by just 537 votes.
What happened two decades ago is far from what’s happening now in 2020, legal experts say.
In 2000, the outcome hinged on just one state: Florida. A win in the Sunshine State would push either candidate toward victory. In the end, a difference of only a few hundred votes was key to deciding the presidency, and this very narrow margin allowed both sides to fight aggressively over every ballot.
In 2020, President- elect Joe Biden is ahead by thousands of votes in five battleground states where President Donald Trump’s team is pursuing legal action to challenge the results. The closest state, Georgia, which will hold a recount, has Biden ahead by 10,620 votes as of Monday at 3: 03 p. m.
A recount is unlikely to change the
outcome given the current margins. Claims of widespread voter fraud – which have not been backed by evidence – affect a miniscule number of votes, experts say.
“Basically, the election is over,” said David Boies, who led Gore’s legal team in 2000. “There’s no legal avenue for the Trump campaign to plausibly dispute the results in any one state.”
Boies acknowledged that the Trump campaign is entitled to recounts. But, he said, “recounts are going to affect hundreds of votes, maybe.”
Trump has expressed his desire to lean on the U. S. Supreme Court, to which he has appointed three conservative justices, to tip the election in his favor. But the path to the high court is “very, very narrow,” Boies said.
For the Supreme Court to be involved, there must be a federal or constitutional issue. Questions that have been raised so far, including allegations of voter fraud and not giving Republican poll watchers meaningful access to closely watch the counting of ballots, are all local or state issues over which the Supreme Court has no jurisdiction, Boies said.
“It is unlikely that any issue, any plausible issue, that could go before the court would really affect the outcome,” Boies said. “And I think that particularly in the absence of a determinative issue, the Supreme Court would be particularly reluctant ( to be involved).”
Barry Richard, who represented Bush in 2000, agreed.
“I think the Supreme Court does not want to become involved in selecting the president this year. In multiple polls, the American public has shown that of the three branches of government, it’s the Supreme Court that the public has the highest regard for. I don’t think they want to lose that.”
For litigation over the 2020 election to reach the high court, there would have to be a repeat of 2000: a tight race hinging on one swing state. Or, as Richard described, on two states, with each going a different direction.
There would also have to be legitimate constitutional questions.
In 2000, the Supreme Court looked at the issue of equal protection, which requires the government to treat individuals in the same way. There needed to be a uniform way of considering ballots during the recount, and there wasn’t, which violated an equal- protection right voters have to have their ballots treated equally during an election. The court ruled that because Florida counties conducted recounts differently, continuing the recounts was unconstitutional.
In 2020, if local election officials had allowed poll watchers for one party to closely watch the counting of votes but did not do the same for poll watchers of the other party, “there might be an issue,” Richard said.
But that’s not the case. There has been no evidence poll watchers from both parties were treated differently. There’s also no evidence that ballots were counted improperly in favor of one candidate, experts say.
In 2000, the Bush and Gore campaigns sent powerhouse lawyers to Florida, where they started collecting facts in multiple counties. Each legal team found what it believed to be discrepancies in the counting of votes in a race in which just a few hundred ballots could tip the results.
The controversy came down to very specific, technological issues. “Hanging chads” and “dimpled chads,” referring to the punch- type mechanical voting machines used at the time, became household terms.
“This was a highly complex, incredibly well- litigated dispute in one state over a few hundred ballots,” said David Becker, executive director and founder of the Center for Election Innovation and Research.
But 2020 is entirely different, he said.
“The claims that have been made at these parking lot press conferences have not held any water in court or under scrutiny, and they’ve been rejected every time by the courts,” Becker said, referring to a news conference by Rudy Giuliani, Trump’s personal attorney, outside Four Seasons Total Landscaping. “This is litigation by conspiracy theory. ... It’s very different from Florida ( in 2000), where both sides were litigating based on reams of factual evidence.”