Day: October 30, 2020

A tight election result, neither candidate willing to back down and an American public divided over who should be in the Oval Office.

An election 20 years ago, fought between George W. Bush and his Democratic rival Al Gore could provide a template for what will happen in the days following the vote – especially if the result is too close to call.

Sunshine state

During the 2000 election, Bush and Gore ended up slogging out their battle for the White House in the Supreme Court, after the number of votes for each candidate were simply too close to call.

After a “wild election night” on 7 November – during which the key state of Florida was called first for Gore then for Bush, leading Gore to concede, only to rescind his concession soon afterwards – “accusations of fraud and voter suppression, calls for recounts and the filing of lawsuits ensued”, History.com says.

The public would later learn that Gore won the national popular vote by 543,895, but with the electoral college in play, he trailed Bush after Florida announced that its 25 electoral votes would go to the Republican.

At the state’s first count, Bush led by 0.1%, meaning a machine recount of all votes cast was required. Florida’s election laws required a second tally if the margin of victory was under 0.5%.

By 10 November, the machine recount was complete, and Bush appeared to have won the state by 327 votes out of the six million cast. But court challenges were immediately launched against the legality of the recount in several counties.

These were herd first by Florida’s Supreme Court, before being elevated to the US Supreme Court. On 12 December, one of the most controversial Supreme Court decisions in American history said the recount should stand, handing Florida to Bush. The ruling gave Bush a 271-266 lead at the electoral college and Gore conceded.

History repeats?

So what does a two-decade-old Supreme Court judgement have to do with the election next week?

The battle over whether to allow postal votes to be counted after election day has put Bush vs. Gore back on the agenda.

Justice Brett Kavanaugh, Trump’s divisive pick for the Supreme Court, cited the case in his explanation of why he voted to deny the request for counts to continue in the key state of Wisconsin, in a move The Washington Post says “was triggering for Democrats and voting rights activists”.

“It’s not every day we see a member of the Supreme Court citing Bush v. Gore,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund told the paper. According to Supreme Court reporter Robert Barnes, “the case has become shorthand for what the Supreme Court would like to avoid”.

In other words, Barnes continues, the court does not want a “central role in the drawn-out recount of the vote” like the one seen in Florida twenty years ago.

“Federal judges, [Kavanaugh] wrote, should not change state voting rules close to elections”, The New York Times reports, which “to some it felt uncomfortably close to the idea that the Supreme Court might play a starring role in deciding the contest” next week.

The polls suggest that is unlikely, with Biden boasting a commanding lead over Trump across key swing states, “but there is no doubt that the court is increasingly drawn into partisan battles over election procedures”, The New York Times adds.

Given Trump’s efforts to discredit mail votes without evidence, and his refusal to state whether he will leave the White House if defeated, the notion that the election could be won or lost in the courts is not impossible.

The decision to hand Florida to Bush meant that he became the first US president to win the White House without the popular vote since Benjamin Harrison in 1888. Trump pulled of the same feat in 2016 and is unlikely to balk at the chance to do so again.

‘On steroids’

“It would be very, very proper and very nice if a winner were declared on 3 November instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws,” Trump told reporters as he left the White House earlier this week.

His claim about the legality of counting votes is incorrect, but the president doubled-down on the sentiment in a tweet labelled misleading, when he said: “Big problems and discrepancies with Mail In Ballots all over the USA. Must have final total on November 3rd.”

“In a normal election year, Bush vs. Gore would be the worst-case scenario for those hoping for a smooth transition of American power.” CNBC says. But this fractious election cycle “has created the conditions for a battle that would dwarf the Supreme Court fight… in Florida two decades ago”.

If Trump decides to contest the vote, a “chief concern is that the legal drama could play out simultaneously in multiple crucial states”, the broadcaster continues. This would mean that the outcome would remain up in the air, with voters on both sides left to stew over who will take the White House in the meantime.

Nathaniel Persily, a democracy scholar at Stanford Law School, told CNBC “that the 2020 election was already going to be litigious before the Covid-19 pandemic hit because of the high-stakes nature of the race”.

“In the event that the election is effectively tied… then we have a version of Bush v. Gore on steroids.”