Fri. Oct 23rd, 2020

Trump revives Bush v. Gore in his crusade against mail-in voting

12 min read

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Washington (CNN)President Donald Trump’s lawyers are trying to revive the Supreme Court decision that awarded George W. Bush the presidency in 2000 to fight mail-in voting practices for the upcoming presidential election.

The 5-4 ruling in Bush v. Gore ended a 36-day ordeal after the Florida results were too close to call. The dispute featured battalions of lawyers that descended on the state, challenged ballots with “hanging chads,” and multiple recounts under the glare of national television. Although the case still resonates politically, haunting close elections, its legal principle has long been regarded as a proverbial ticket good for one ride only. The Supreme Court itself has not cited the case in any ruling since then.How to vote

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Still, as tensions rise over mail-in ballots, Trump persists with his unsupported assertions of fraudulent voting, and his legal team newly raises Bush v. Gore, some Democratic lawyers wonder whether the case may become less like the single-ride ticket and more like the axiomatic principle that, in the words of the late Justice Robert H. Jackson, “lies about like a loaded weapon ready” to be brought forward in a moment of need.

    If the Trump campaign’s new legal approach succeeds, it could lead to the mass discarding of votes in November, a prospect that has drawn concern from some Democrats as states increasingly encourage vote-by-mail options because of the Covid-19 pandemic. A CNN poll released last week found that Trump supporters overwhelmingly preferred to vote in person (66%), while supporters of former Vice President Joe Biden said they would rather vote by mail (53%, as opposed to 22% in person).Read MoreWhen the high court stopped the Florida recounts in 2000, giving the Republican Texas Gov. Bush the White House over Democratic Vice President Al Gore, it declared that county standards for assessing the intentions of voters on disputed ballots varied too widely to be fair. The court said the variations violated the 14th Amendment’s equal protection guarantee.
    Yet the conservative five-justice majority also described its opinion in Bush v. Gore as “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”As a result, legal commentators have long viewed Bush v. Gore as a decision born of the political moment rather than one offering a solid precedent. Lower court judges have only sporadically referred to the case.Trump campaign lawyers believe the case has new salience. They rely on Bush v. Gore in new lawsuits against mail-in voting in Nevada and New Jersey, most prominently in the Nevada case. They assert that states lack uniform procedures for balloting by mail in violation of constitutional equal protection.In the Nevada lawsuit against the secretary of state, lawyer William Consovoy, who has been at the vanguard of much of Trump’s litigation, wrote that the mail-in regulations lack “minimal procedural safeguards” and constitute “unequal standardless treatment of Nevada voters across counties.”The new legal arguments echo Trump’s broader and unfounded attacks on mail-in voting as fraudulent. Multiple studies have found that widespread fraud in US elections does not exist. Still, there has been an acceleration of Trump claims on multiple fronts as some states prepare to send out ballots next month.Consovoy declined to comment on the Trump campaign’s litigation strategy or the use of Bush v. Gore.

    Recounts, hanging chads and the ‘Brooks Brothers riot’

    The Bush v. Gore saga proved how a close, contentious race could tear apart the country, even in a less polarized time. At stake two decades ago were Florida’s 25 electoral votes, which by the end of the November 7, 2000, election day were expected to determine who would be president. The race was too tight to call that night, although some news networks did declare Gore the winner of Florida, then Bush, then simply said they did not know. Gore even conceded the race to Bush, only to call and reverse himself.

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    Bush v. Gore: The final hours 12:27That was a sign of the chaos and confusion that would seize the country in the next five weeks. As recounts began, the tallies shifted. A Florida state certification in late November, issued by a Republican secretary of state, put Bush ahead by a mere 357 votes out of nearly 6 million ballots cast.Among the indelible images as recounts played out on national television were officials scrutinizing “hanging” and “dimpled” chads to discern voters’ intentions on a ballot and the “Brooks Brothers riot” at Miami-Dade County election office disrupting the recounts. It all ended just after 10 p.m. ET on December 12, with another memorable image, as news reporters raced across the Supreme Court’s marble plaza, the court’s decision in hand, to awaiting TV cameras.The justices declined to take the bench to announce their unsigned opinion permanently stopping the Florida recounts. The same five-justice conservative majority had temporarily blocked the recounts three days earlier, also over protests from liberal dissenters.The final decision found that Florida standards for assessing contested ballots varied from county to county resulting in “arbitrary and disparate treatment” among voters.In the majority were Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. Dissenting were Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.That familiar conservative-liberal lineup stoked complaints of partisan politics.Stevens, the senior liberal at the time, wrote: “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.”The high court has not referred to Bush v. Gore in any subsequent ruling, according to a search of the court’s website that includes the texts of cases. The single case citation appears passingly in a footnote in a solo dissenting opinion by Thomas in a 2013 Arizona voter-registration dispute.Still, in a purely neutral vein, the case would have as much precedential value as any other Supreme Court decision and litigants would be free to use it, if they believed it persuasive to make their case.Thomas is one of three justices (with Ginsburg and Breyer) still on the bench from 2000. Two justices who joined years later happened to have worked as lawyers with the Bush team in Florida: John Roberts, named chief justice by Bush in 2005, and Brett Kavanaugh, appointed by Trump in 2018.

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    Nevada and New Jersey lawsuits

    The Trump campaign lawsuits invoking Bush v. Gore were brought by the Consovoy McCarthy law firm that has taken the lead on myriad Trump litigation, including the President’s effort to prevent his tax returns from being turned over to a Manhattan grand jury. In the Nevada claim filed in on August 4, Consovoy particularly protested rules that would allow some late ballots to be counted and, separately, that require different numbers of polling places in urban and rural areas based on county population.Nevada state officials have asked that the lawsuit be dismissed. A US district court judge has yet to rule on that motion.

    Photos: Bush v. Gore: Where are they now?

    Photos: Bush v. Gore: Where are they now?Then: Al Gore, vice president at the time, won the Democratic nomination in the 2000 campaign. After a tedious recount of the votes, he lost the presidential election to Republican George W. Bush. Hide Caption 1 of 31

    Photos: Bush v. Gore: Where are they now?Now: In August 2005, Gore launched his television channel, Current TV, which he later sold to Al Jazeera. In 2007, he published “Assault on Reason,” and received a Nobel Prize for his work on global warming. After 40 years of marriage, Gore and his first wife, Tipper, separated in 2010.

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    Photos: Bush v. Gore: Where are they now?Then: George W. Bush served as governor of Texas until December 21, 2000. He of course went on to become the 43rd president of the United States. His presidency was soon put to the test after the terrorist attacks on September 11, 2001. Hide Caption 3 of 31

    Photos: Bush v. Gore: Where are they now?Now: In 2013, Bush opened the George W. Bush Presidential Library and Museum. Bush released “41: A Portrait of My Father,” a biography of George H. W. Bush, on November 11, 2014.

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    Photos: Bush v. Gore: Where are they now?Then: Originally, Dick Cheney declined when George W. Bush asked him to be his running mate. Instead, he offered to help find a potential VP candidate. Months later, Bush extended the offer again, and he accepted. Hide Caption 5 of 31

    Photos: Bush v. Gore: Where are they now?Now: Cheney made headlines in 2006 after accidentally shooting a fellow hunter in the face. In 2013, he released a medical memoir, “Heart: An American Medical Odyssey.”Hide Caption 6 of 31

    Photos: Bush v. Gore: Where are they now?Then: Joe Lieberman, then a U.S. senator from Connecticut, was the Democratic candidate for vice president. He was the first Jewish candidate on a national ticket.Hide Caption 7 of 31

    Photos: Bush v. Gore: Where are they now?Now: Lieberman launched an unsuccessful bid for the Democratic presidential nomination in 2004. Lieberman ran as an independent candidate for Senate in 2006, and he supported Republican candidate John McCain in the 2008 presidential election. In January 2013, he retired from the Senate. Lieberman became a chairman of Victory Park Capital in 2014. Hide Caption 8 of 31

    Photos: Bush v. Gore: Where are they now?Then: Then governor of Florida and the brother of Republican candidate, George W. Bush, Jeb Bush had a pivotal role in the 2000 campaign. On election night, Florida’s votes were too close to call. Finally, the recount revealed that George Bush won Florida by a 537-vote margin.Hide Caption 9 of 31

    Photos: Bush v. Gore: Where are they now?Now: Bush served as governor of Florida until 2007. In June 2015, he announced he was running for president. Hide Caption 10 of 31

    Photos: Bush v. Gore: Where are they now?Then: Bill Daley served as Gore’s campaign chairman. On election night, Daley announced on stage at the Memorial Plaza, “The race is simply too close to call and until the recount is concluded…our campaign continues.”Hide Caption 11 of 31

    Photos: Bush v. Gore: Where are they now?Now: In 2011, Obama announced that Bill Daley would be his new chief of staff. He served in that role for about a year before launching an unsuccessful gubernatorial campaign in Illinois. Hide Caption 12 of 31

    Photos: Bush v. Gore: Where are they now?Then: Ron Klain left the Gore campaign in the fall of 1999, but he rejoined the effort during the last few months of the 2000 election. After election night, Klain became the lead Democratic lawyer during the recount.Hide Caption 13 of 31

    Photos: Bush v. Gore: Where are they now?Now: Klain served as Vice President Joe Biden’s chief of staff. In 2014, Obama appointed Ron Klain as the Ebola response coordinator, or the “Ebola czar.” Since Klain did not have a medical background, there was controversy over this decision. Hide Caption 14 of 31

    Photos: Bush v. Gore: Where are they now?Then: Joe Allbaugh started off as Bush’s campaign manager. After Bush was elected, he became director of the Federal Emergency Management Agency (FEMA) in 2001.Hide Caption 15 of 31

    Photos: Bush v. Gore: Where are they now?Now: Allbaugh left FEMA in March 2003. He also served as a campaign manager for Texas Gov. Rick Perry during the 2012 election.
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    Photos: Bush v. Gore: Where are they now?Then: James Baker served as Bush’s recount chief after serving in the Reagan and George H.W. Bush administrations. He also played a large role in fighting the legal claims made by Gore’s campaign over the controversy of the 2000 election.Hide Caption 17 of 31

    Photos: Bush v. Gore: Where are they now?Now: Baker has been a family friend of the Bush family. However, in 2015 Jeb Bush said he was distancing himself from Baker because of Baker’s criticisms of Israeli Prime Minister Benjamin Netanyahu.Hide Caption 18 of 31

    Photos: Bush v. Gore: Where are they now?Then: Ted Olson represented Bush in the legal battle after the 2000 election. Hide Caption 19 of 31

    Photos: Bush v. Gore: Where are they now?Then: David Boies represented Gore. Hide Caption 20 of 31

    Photos: Bush v. Gore: Where are they now?Now: In 2010, the two superlawyers joined forces to successfully fight California’s ban on same-sex marriage. Olson is pictured here.Hide Caption 21 of 31

    Photos: Bush v. Gore: Where are they now?Now: Boies, pictured, and Olson co-authored the book, “Redeeming the Dream: The Case for Marriage Equality.”Hide Caption 22 of 31

    Photos: Bush v. Gore: Where are they now?Then: David Morehouse was brought on as senior counselor for Gore’s campaign. On election night, he stopped Al Gore from conceding the presidency.
    Now: In 2007, Morehouse became the president of the Pittsburgh Penguins. Three years later, he became the Penguins’ chief executive officer.
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    Photos: Bush v. Gore: Where are they now?Then: Karen Hughes was Bush’s spokesman during the 2000 campaign.Hide Caption 24 of 31

    Photos: Bush v. Gore: Where are they now?Now: In 2001-2002, Hughes was as a counselor and strategic adviser to George W. Bush. In 2008, she became the worldwide vice chair for Burson-Marsteller, a public relations firm. Hide Caption 25 of 31

    Photos: Bush v. Gore: Where are they now?Then: Ben Ginsberg served the Bush-Cheney presidential campaign as national counsel and played a key role in the recount.Hide Caption 26 of 31

    Photos: Bush v. Gore: Where are they now?Now: Ginsberg, second from left, served as national counsel in Mitt Romney’s 2008 and 2012 presidential campaigns. Ginsberg joined the law firm Jones Day in 2014.Hide Caption 27 of 31

    Photos: Bush v. Gore: Where are they now?Then: Donna Brazile served as campaign manager Al Gore’s 2000 presidential campaign.Hide Caption 28 of 31

    Photos: Bush v. Gore: Where are they now?Now: In 2009, Brazile was chosen as one of the “remarkable visionaries” for O magazine. She is the author of the best-selling book, “Cooking with Grease” that was published in 2004. Today, she is a CNN political commentator. Hide Caption 29 of 31

    Photos: Bush v. Gore: Where are they now?Then: Originally, Michael Whouley was an adviser to the Gore campaign.
    Now: Whouley served as John Kerry’s senior adviser in 2004. At Dewey Square Group, he initiated “war room” campaigns for a number of Fortune 50 companies.
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    Photos: Bush v. Gore: Where are they now?Then: John ‘Mac’ Stipanovich is known for his work in the 2000 election recount. In Florida, he advised then-Florida Secretary of State Katherine Harris on how to continue with the election. He served as chief of staff for Florida Gov. Bob Martinez from 1987-1991.
    Now: Stipanovich’s 30-plus years’ experience in Florida’s politics has dubbed him the nickname “the knife.”
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    The Democratic National Committee, Democratic Congressional Campaign Committee and Nevada Democratic Party were allowed to intervene in the Nevada case, under a US district court order issued Friday. In their motion asking to intervene, the Democratic groups had declared the Trump lawsuit “a hodgepodge of claims” that are not “viable.” Submitted by lawyer Marc Elias, a veteran of many Democratic campaign battles, the motion describes the Trump lawsuit as “an attempt to undermine the state’s effort … to protect Nevada voters during a public health crisis.”A separate federal court complaint from the Trump campaign was lodged against New Jersey on Tuesday, after Gov. Phil Murphy declared that all residents would be mailed ballots for voting this November. Residents may still vote in person but through provisional paper ballots to be checked for duplicate voting.The Trump campaign presents numerous legal grounds, including those based on Bush v. Gore’s equal-protection rationale. Murphy’s order, Trump lawyers assert, “will result in New Jersey’s counties using varying standards to determine what is a legal provisional vote.”Overall, the complaint echoes Trump’s public message trying to discredit mail-in ballots. It refers to potential voter fraud dozens of times and warns that the New Jersey plan arising from a public health crisis presents “a recipe for disaster.”As Trump continues to challenge mail-in voting, it is not difficult to imagine more Bush v. Gore-inspired litigation and even a possible replay of the milestone case in the guise of Trump v. Biden. How the current Supreme Court would rule defies ready prediction, beyond the likelihood that Chief Justice Roberts would play a crucial role as he has in the most recent important cases.

      For years, Scalia famously admonished the divided nation regarding Bush v. Gore, “Get over it!”It is plain that for adherents of the late conservative icon — Trump included — the mantra no longer holds.

      Source: edition.cnn.com

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