6 Facts About Bush v. Gore Worth Remembering Before The Trump Campaign Revises History To Death
Donald Trump has no right to compare himself to Al Gore.
(Photo by Leigh Vogel/Getty Images)
In last night’s presidential debate, Donald Trump suggested that he wouldn’t accept the results of the election as certified by all 50 states. He said he would keep America “in suspense.” Here’s the transcript:
CHRIS WALLACE: But, sir, there is a tradition in this country — in fact, one of the prides of this country — is the peaceful transition of power and that no matter how hard-fought a campaign is, that at the end of the campaign that the loser concedes to the winner. Not saying that you’re necessarily going to be the loser or the winner, but that the loser concedes to the winner and that the country comes together in part for the good of the country. Are you saying you’re not prepared now to commit to that principle?
DONALD TRUMP: What I’m saying is that I will tell you at the time. I’ll keep you in suspense. OK?
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In response to this horrible disavowal of democratic principles, Trump campaign workers and surrogates rescinded their support of the candidate, and pledged their fealty to democracy.
JUST KIDDING.
Immediately after the debate, Trump surrogates were spinning hard, telling us that Trump’s existential threat had accepted precedent in American politics. From Politico:
“This is exactly what Al Gore did,” said former New York City Mayor Rudy Giuliani, who emerged in the spin room after the final presidential debate here. “It was their Democrat, Al Gore.”
Moments later, Sen. Jeff Sessions echoed the point: “Al Gore lost his challenge,” Sessions said, adding that he disagreed with Gore’s challenge in the first place. Kellyanne Conway, Trump’s campaign manager, also cited Gore, telling reporters that the “extraordinary” circumstances that occurred in the 2000 election could occur again.
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It is amazing that these people would equate what Donald Trump is threatening to anything that Al Gore did in 2000. In fact, Al Gore’s acceptance of the Supreme Court decision in Bush v. Gore, his decision to forgo other colorable legal claims, and his gracious concession speech all stand as testament to the fabric of American democracy. It was Al Gore’s second-best contribution to the country, behind creating the internet.
Al Gore did NOT threaten to lock George W. Bush up. He did NOT argue that Bush shouldn’t be allowed to run. He did NOT exhort his supporters to menace opposition voters at the polls. He did NOT question the integrity of the American process. Trump is doing EXACTLY what Al Gore did not do. I suspect that Donald Trump literally doesn’t know better, but Giuliani, Conway, and Sessions should be ashamed of themselves — or would be if shame was something they were capable of feeling.
Al Gore merely followed the law. It’s been a long time since Bush v. Gore. I was in law school at the time, but I know a lot of readers were too young to have experienced the drama in real time. Many people know that there was a “recount” that was “stopped,” but most people have forgotten why the process was started in the first place and the grounds on which it was halted.
For those whose memory of Bush v. Gore is hazy enough to make the Trump surrogates sound plausible, let’s remember six key facts about the controversy that should illustrate the difference between Al Gore and a would-be despot.
1. The Recount Was AUTOMATICALLY Triggered.
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Because the votes in Florida were so close — Bush beat Gore by 1,784 votes, less than “one half of one percent” of all votes cast, on the initial tally — an automatic recount of the machine votes was triggered. Gore didn’t ask for it, he didn’t have to ask for it. It’s just one of those safeguards we have so that people can’t do what Trump is running around claiming only minority populations do.
People forget this — Al Gore initially called Bush to concede. People had to TELL Al Gore that he hadn’t lost, that the election was so close that Florida’s automatic recount law was in play.
That automatic recount reduced Bush’s lead to just 327 votes out of the six million ballots cast in Florida.
2. Gore Exercised His Right To Ask For A Manual Recount.
Florida has a statutory procedure for contesting elections. Gore requested a manual recount of four counties (all heavily Democratic counties) in Florida under Fla. Stat. §102.166 (2000).
At this point, it’s important to note that Gore was not “contesting the results of the election.” He was instead exercising his statutory right to make sure that those results had been counted correctly. There was a process for this. Gore wasn’t questioning the process, he was following it.
3. Katherine Harris Certified The Election Results Before The Count Was Finished.
Remember Kathrine Harris? In 2000, she was the Secretary of State of Florida. It’s an elected position. She was a Republican. For reasons still passing understanding, it fell to an elected, partisan official to certify the results of the Florida election, instead of some kind of non-partisan civil servant.
Florida law required that election results be certified by November 14th. Three of the four counties that were asked to manually recount their votes (Broward, Palm-Beach, and freaking Miami-Dade) said that they couldn’t possibly count their votes by that time. Harris said she had no choice. A Florida Circuit Court said that she was wrong and that she could accept late returns by her discretion. Harris used her discretion to reject applications from the three counties.
THAT’S WHEN SOMEBODY SUED. And it wasn’t just the Gore campaign. Palm Beach County also sought an injunction to prevent Harris from certifying the results.
It is important to note that when we ask whether Trump will accept the results of the election, we’re asking if he will accept the results as certified by the states. That might seem like a petty legal distinction, but the point is that between the election night tally and the certified results there is a process whereby states make sure that nothing untoward has happened. It is this process that was at the heart of the dispute in Bush v. Gore.
Trump is spinning wild theories about voter fraud and manipulation. Gore was talking about letting the process of certifying the results of the contest play out.
The Florida Supreme Court ordered Harris to give the counties until November 26th to keep counting.
4. Harris Certified The Results On November 26th, All Hell Broke Loose.
So, funny thing: after the Florida Supreme Court extended the certification deadline until November 26th, Miami just stopped counting. They figured they couldn’t possibly manually count all their votes by then so… f**k it.
After Harris certified the election on the 26th, Gore sued, arguing that the count was still going on. The case was dismissed, Gore appealed, the Florida Supreme Court ordered the count to continue. BUSH appealed to the U.S. Supreme Court. Hence, “Bush v. Gore” and not “Gore v. WTF Is Florida Thinking.”
We can argue about hanging chads. We can argue about “butterfly ballots.” What we cannot argue is that Al Gore was accusing the election of being “rigged.” He was fighting about process.
5. The Supreme Court Stopped The Count.
Bush v. Gore should have been about whether the Florida Supreme Court was correct in its own interpretation of Florida law. But it was not. Instead, the Court found for Bush based on Equal Protection grounds. It confused mainstream media at the time, and to this day, because the decision was so full of s**t a bit unexpected — and because the Court declared its ruling to be “limited to the present circumstances,” instead of precedential in the usual course.
The manual recount in Florida had been focused on “undervotes,” voters who had shown a clear intention to vote for one candidate, but whose votes for whatever reason were not picked up by the machine. The Court ruled that including these votes denied equal protection to “overvotes,” where theoretically a voter showed intent to vote for one candidate but a stray mark or something made it look like the voter had chosen both candidates. The Court was generally concerned that the Florida standards for manual recounting were ad hoc. They called it a “standard-less” process.
6. Al Gore, Surprisingly, Conceded.
History treats Bush v. Gore as the end of the story, but it didn’t have to be. Gore could have asked Florida to apply a “standard” that would have satisfied the Court. The Court’s decision came on the same day that Florida nominated its presidential “electors” (you know, the people who actually get to vote for the president). Gore could have contested that. Gore could have continued to throw legal challenges against the wall. It could have gotten real ugly.
Instead, Al Gore said this:
Just moments ago, I spoke with George W. Bush and congratulated him on becoming the 43rd president of the United States. And I promised him that I wouldn’t call him back this time. I offered to meet with him as soon as possible so that we can start to heal the divisions of the campaign and the contest through which we’ve just passed.
Almost a century and a half ago, Senator Stephen Douglas told Abraham Lincoln, who had just defeated him for the presidency, “Partisan feeling must yield to patriotism. I’m with you, Mr. President, and God bless you.” Well, in that same spirit, I say to President-elect Bush that what remains of partisan rancor must now be put aside, and may God bless his stewardship of this country. Neither he nor I anticipated this long and difficult road. Certainly neither of us wanted it to happen. Yet it came, and now it has ended, resolved, as it must be resolved, through the honored institutions of our democracy.
Over the library of one of our great law schools is inscribed the motto, “Not under man but under God and law.” That’s the ruling principle of American freedom, the source of our democratic liberties. I’ve tried to make it my guide throughout this contest, as it has guided America’s deliberations of all the complex issues of the past five weeks.
Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession. I also accept my responsibility, which I will discharge unconditionally, to honor the new President-elect and do everything possible to help him bring Americans together in fulfillment of the great vision that our Declaration of Independence defines and that our Constitution affirms and defends.
There is… NO UNIVERSE in which Donald Trump says that. Donald Trump does not give a goddamn about this country, its laws, or the peaceful transfer of power.
So, if you hear a Trump supporter saying “Al Gore did the same thing,” correct the freaking record. Tell them, “I know Al Gore, I’ve studied Al Gore, and you, sir, are no Al Gore. You are a sniffing idiot who isn’t fit to shine Al Gore’s lockbox.”
Republicans: Gore refused to accept election results, too [Politico]
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. I would vote for Al Gore, again, in a heartbeat.
