10 years later
The Supreme anniversary: Where Bush v. Gore ranks in the pantheon of shadyelections
The writers of alternative history have mined every major event of the 20th century — the Battle of Stalingrad, the third-term election of Franklin Roosevelt, and the founding of a Jewish state — to turn out compelling fiction about worlds that could have been.
So it's surprising, 10 years after the Supreme Court decision in Bush v. Gore stopped the Florida recount and made George W. Bush president, that no one has examined what the past decade could have been like had the case gone the other way. But with the 10-year anniversary of the Supreme Court rendering its hallmark decision this Sunday, many are beginning to question how the case will affect the legacy of both Bush and the Supreme Court as an institution.
Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first 10 years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: Zero.
This was, of course, hinted at it in the text of the decision, signed only "per curium" rather than with any individual attaching a name to the opinion, and stating point blank that the decision was "limited to the present circumstances," and not fit for citation. Not exactly a ringing endorsement.
Journalists and scholars have disagreed over what the final outcome of the vote in Florida would have been had the recount proceeded, but there seems to be a soft consensus that Gore would have lost if only the counties with "undervotes" got a recount (as Gore's lawyers pressed for) but that the Vice President would have prevailed if votes throughout the entire state were subject to a manual recount.
[Gore] beat Bush by almost every conceivable counting standard. Gore won under a strict-counting scenario and he won under a loose-counting scenario. He won if you counted “hanging chads” and he won if you counted “dimpled chads.” He won if you counted a dimpled chad only in the presence of another dimpled chad on the same ballot — the so-called Palm Beach standard. He even won if you counted only a fully punched card. He won if you counted partially filled oval on an optical scan and he won if you counted only a fully filled optical scan. He won if you fairly counted the absentee ballots. No matter what, if everyone who legally voted in Florida had had a chance to see their vote counted, then Al Gore, not George W. Bush, was elected president.
But, as Justice Scalia would say, who cares? (Actually he prefers to tell people to "get over it.") What's done is done.
But it's easy to see a line directly from Bush v. Gore and the 2000 recount — feverish political and legal wrangling, Brooks Brothers riots and political cases decided down party lines — to the Tea Party, ACORN hysteria and the current mistrust of government. After all, if a value as basic as one person = one vote can be left to political malfeasance — by both sides — then what is off limits?
The Bush presidency aside, it's hard not to imagine the election of 2000 going down in the history books alongside a duo of contested elections from the 19th century.
In 1824, two decades of single party rule devolved into a quartet of candidates for president — Secretary of State and presidential son John Quincy Adams, Speaker of the House Henry Clay, Southern former senator and cabinet member William Crawford and war hero and senator Andrew Jackson. The vote was split down predominantly regional lines, with Jackson drawing strong support in the West and South and John Quincy Adams taking New England and the Northeast. With no candidate receiving a majority of the electoral votes, the election was thrown in the House of Representatives, as called for in the Twelfth Amendment.
With only the top three vote getters as candidates, Clay was out of the running, and Crawford, already a long shot, was in poor health. Clay used his considerable sway and threw his support to Adams — he hated Jackson — giving Adams the victory over the winner of the most electoral votes. (Though it's misleading to say Jackson won the popular vote — at the time six states did not conduct a popular vote for the presidential election. The founders actually had a healthy fear of the people at large voting for any national politician outside the House of Representatives.)
It was only when Adams forthwith named Clay his Secretary of State, then a popular post for future presidents, that Jackson denounced the entire process as a "corrupt bargain" that denied the voters of their will. Adams' troubled presidency was never able to overcome the stigma, justified or no, and in 1828 Jackson defeated him handily.
Fifty years later, in 1876, electoral chaos struck again. Before there was Al Gore, there was Samuel Tilden. A Democrat from New York, Tilden won the popular vote over Ohio Republican Rutherford B. Hayes and at first seemed to have the most electoral votes. But during the tumultuous Reconstruction era, paramilitary groups suppressed the African-American vote with threats of violence and fraud — with illiteracy common, Democratic ballots in Louisiana, South Carolina and Florida (yes, Florida) featured Abe Lincoln, the symbol of the Republican party.
These misleading ballots were thrown out by the Republican reconstruction governments and state electoral boards, giving Hayes a majority of one in the electoral college. With a constitutional crisis bringing the nation to the brink of collapse, the 15-person Electoral Commission came up with the Compromise of 1877.
It would accept the Republican votes from the contested Southern states for Hayes in exchange for a promise to remove the federal troops from the South, effectively ending the Reconstruction period, though it would become known as how the North "stole" the election.
As Andrew Cohen observed, the crisis of Bush v. Gore lasted in the popular consciousness much less time than these earlier elections — exactly 274 days, until the attacks of September 11, 2001. Nothing unifies a country like an attack from across the world.
But when it comes to Bush v. Gore, the most prescient opinion might be that of Justice John Paul Stevens given 10 years ago in his withering dissent.
"Although we may never know with complete certainty the identity of the winner of 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," he said.