Graphic: Elena Scotti (Photos: Getty Images)
It was colder than usual on December 11, 2000, in Washington, D.C. The temperature hovered in the mid-30s for long stretches of the day, and the capital was shrouded in dull clouds. So they came prepared, bundled up in coats and thick hats. Standing out among the dark winterwear and gray sky, someone foisted a professionally crafted sign in red, white, and gold that read: “This is America. Count every vote.”
There were official Gore-Lieberman campaign posters and handmade creations constructed out of thick paper and Sharpie blaring, “Recount!” There were opposition protesters scattered through the crowd as well, holding signs reading “Sore/Loserman 2000.” But they appeared to be in the minority among the furious Democrats. “What are you afraid of? Count every vote!” the protesters chanted, cupping their hands around their mouths as if hoping that their cries could be heard from inside the building they were lined up in front of: The United States Supreme Court.
Inside, nine Supreme Court justices were listening to arguments in Bush v. Gore, the case that would decide whether the recounting of Florida’s votes in the presidential election would continue. The contest had come down to a legal battle over the interpretation of Florida state election law, leaving Justice Ruth Bader Ginsburg to ask why the Supreme Court should “say what the Florida law is” after Florida’s highest court already came to their own conclusion, in favor of Gore. Meanwhile, an exasperated Justice Sandra Day O’Conner wondered why Florida voters should receive leniency from the courts for not following ballot instructions. “Why isn’t this standard the one which voters are instructed to follow for goodness sakes?” O’Conner asked Gore attorney David Boies. “I mean, it couldn’t be clearer.” But nothing about the 2000 presidential election in Florida was clear.
Ultimately, the Court decided that the Florida recount must come to an end, a move that declared Bush the de facto winner of the 2000 election. There was a clear ideological split in the decision: Five conservative judges in favor of ending the recount, four liberal judges opposed. Jesse Jackson called the decision “democratically illegitimate” and compared it to the Dred Scott decision of 1857. And an NBC News/Wall Street Journal poll taken around the time of the decision showed that 53 percent of respondents believed that the justices acted with politics—not law—in mind.
And now, President Trump is angling for a repeat. He has openly telegraphed his intention to steal the 2020 presidential election. He’s doing it in plain sight, free of dog whistles and innuendo, brazen in his confidence that he can lay out his underhanded plan and receive little more than pushback about propriety in return. “This scam that the Democrats are pulling—it’s a scam, the scam will be before the United States Supreme Court,” Trump told the press on September 23, explicitly connecting the rush to fill the Court vacancy left by the late Justice Ruth Bader Ginsburg to his chances of attaining another term as president. “I think it’s very important to have a ninth judge,” he added.
Having spent months painting vote-by-mail and other legitimate efforts to enable voting in a pandemic as inherently illegal and illegitimate, Trump was openly admitting that he expects the 2020 general election to be “Florida 2000: The Redux,” an impossibly close and confusing race determined by the courts. And he plans to win, with help from a cadre of alumni from Bush’s legal team, who’ve since ascended to the Supreme Court: Chief Justice John Roberts, Justice Brett Kavanaugh, and—now—Justice Amy Coney Barrett, Trump’s third Supreme Court pick in as many years, as well as conservative state legislatures and lower courts filled with his own conservative appointees.
Nearly 20 years after that day in the Supreme Court, we are still living in the world that Bush v. Gore created when a partisan majority of justices decided an American presidential election on the basis of a clusterfuck in a single, very close state. That single decision altered the course of United States history, and with Trump at the helm and his dream court at his disposal, we risk replicating that disaster all over again. No need to sugarcoat what this could mean for the country. It means more conservative federal judges and more restrictive reproductive policy. It means theocratic health care reform and regressive austerity measures. It means continued validation of racist militia groups and violence from the most powerful man in the world. The presidential election is the highest-profile incarnation of American democracy in action, the main stage that the entire world watches. Multiple recent contests have been determined by the electoral college, rather than the popular vote. If somebody can simply steal the position, taking advantage of widespread confusion, a close race, and opaque court processes, the term “democracy” simply no longer has any meaning, potentially dealing a killing blow to national confidence in our own institutions.
On November 18, 2000, Saturday Night Live lampooned the Florida chaos—as so many comedians across America were eager to do. One skit featured Darrell Hammond as the perpetually cantankerous television journalist Chris Matthews while Ana Gesteyer portrayed Katherine Harris, Florida’s Secretary of State. At the time, the Washington Post called Harris a “flamboyant and controversial” figure who was previously “keenly interested in the election of [Jeb Bush’s] brother,” for whom she worked during his successful Florida gubernatorial run. Harris, who oversaw the election results in the state, became a household name overnight.
“Many people have accused you of being a pawn of the Republican Party,” Hammond’s Matthews says. “You were Governor Bush’s co-campaign chair in Florida. It seems to me that you could be accused of political cronyism!”
Gesteyer’s Harris preens with a stiff smile, face caked with heavy makeup. “Chris, I think as everyone agrees, my political leanings are irrelevant,” she says. “I’m merely doing my duty.”
She adds: “Do I know who has officially won the election? Yes. Am I going to announce it? No. Am I going to enjoy watching that Tennessee robot cry when he hears the results? Yes. Does that make me partisan? I don’t think so.”
Matthews continues to coax Harris into coughing up some intel. Harris stays mum, but only for so long.
“Chris, I am a public servant, I serve the people of Florida and will abide by their guidelines and directives—Bush won…” Harris blurts out. “George Bush won, we won, I helped him win and he’s the president!” Gesteyer’s satirical take on Harris was alarmingly accurate.
On November 7, election night, the outcome of the 2000 election hinged on Florida and its 25 electoral votes. Media outlets called the state for Gore based on exit polls and samples of swing-districts, but an incensed Karl Rove, then Bush’s chief strategist, called Fox News to insist that Florida was still in play. Once Fox News fell in line, the other networks followed, eventually determining it was “too close to call.” Early the next morning, several media outlets—except for the Associated Press—projected Bush won Florida and, thus, the election. Gore called on Bush to concede but later retracted his concession when his campaign discovered that Bush was only leading by 1,784 votes. To the Republicans’ chagrin, this triggered an automatic recount in the state of Florida, which resulted in a difference of 900 votes. Another recount in all but one county—Bay County already destroyed their ballots—reduced Bush’s lead to 327 votes.
The frustration that was quickly mounting among Democrats was translated into humor on late-night talk shows, as well. Conan O’Brien made quips about Bush’s perceived lack of intelligence: “Al Gore’s campaign manager is now asking for the ballots in four Florida districts to be counted by hand. George W. Bush said, ‘Well, that will never work. What happens when you run out of fingers?’” And the Chris Rock Show invited comedian Wanda Sykes to offer election analysis, which boiled down to an exasperated Sykes exclaiming, “Fuck Florida.”
“What’s the problem with the election? Voter fraud? Electoral college?” Rock asked.
“The white man,” Sykes offered. Rock noted that Gore appeared to win the popular vote, regardless of the mess in Florida, to which Sykes replied, “Now, with the popular vote, the majority of the people are saying, ‘we want Al Gore to be the next president.’ But the electoral college—which is run by the white man—is saying, ‘we don’t care what you niggas want.’”
Raucous applause followed, but the humor was alive only in the world of television studios in Los Angeles and New York. Back in Florida, the mayhem was just beginning to unfold.
The Democrats requested a manual recount of disputed votes in the counties of Broward, Miami-Dade, Palm Beach, and Volusia. And there was plenty to dispute: The confusing layout of so-called “butterfly ballots” in Palm Beach County led several voters in the Democrat-heavy county to accidentally vote for conservative third-party candidate Pat Buchanan. Additionally, the punch-card ballot system at several polling centers was antiquated and imperfect, resulting in a series of dizzying additions to the American lexicon: not just chads, the paper fragments leftover when a hole is made in the paper, but also pregnant or dimpled chads, in which a voter merely makes an indent in a ballot, indicating voter’s intent; hanging chads, in which every corner of a chad is attached to the ballot except for one; and swinging and tri-chads, in which the corner of a chad is attached to the ballot in two or three segments respectively.
It was, as the New York Post aptly put it, “Chad Nauseum.”
Due to the chad discrepancies, scantrons tabulating the votes often didn’t accurately read the ballots with chads attached, leading to thousands of undercounted votes that were eventually examined by hand.
The calamity was multi-fold: By November 11, Palm Beach County announced that they would manually recount over 460,000 votes (Bush’s team sued). By November 12, Volusia County’s recount was infiltrated by Republican party operatives, who disrupted and disputed the results of the ballots and their chads (Gore’s team threatened to sue). It became clear that manual counting was anticipated to take far longer than the November 14 deadline instituted by the state, so the Gore team—along with Palm Beach and Volusia counties—sued. By the deadline, only Volusia’s recount was completed, and Bush’s lead was reduced to 300. While a state judge allowed recounts to be considered at a later date, Harris gave Gore’s team until the next afternoon to present a valid reason to continue the recount process. The idea that every vote counts was, apparently, insufficient reason.
On November 15, Broward County decided to manually recount over 580,000 votes, but Harris decided the Gore team’s rationale to carry on with the recount in Broward and Palm Beach counties were insufficient. The next day, the Florida Supreme Court allowed recounts in Broward and Palm Beach counties, and Miami-Dade county begins its own recount. Hand counts in the aforementioned counties had a new deadline of November 26, but this window of opportunity for the Democrats soon closed.
On November 22, in what would become an absurdly effective mode of protest, hordes of paid Republican operatives stormed the Miami lobby where the Miami-Dade County canvassing board conducted a manual recount. The crowd forced their way through the building, literally kicking and screaming along the way, chanting, “Stop the count, stop the fraud!” The protesters were largely white men dressed in sensible slacks and plain button-downs, dull business casual. The altercation became known as the Brooks Brothers Riot, and the display—a sea of furious dweebs—successfully put an end to the Miami-Dade recount. While Miami-Dade insisted they simply didn’t have enough time to finish the recount by the deadline, the New York Times reported at the time that, “David Leahy, the supervisor of elections, said after the vote [to end the recount] that the protests were one factor that he had weighed in his decision.”
The right weaponized the narrative that the Democratic Party were purveyors of voter fraud and sour grapes. Democrats became sore losers while Republicans were the guardians of democracy. Republicans weren’t apprehensive about taking their message to the streets, while Democrats were busy handwringing over optics, worried, for example, that the presence of black civil rights leaders like Jesse Jackson would turn their fight from a legal one into an emotional one. Union organizer Jane McAlevey concurred with this in her 2014 memoir, Raising Expectations (and Raising Hell): My Decade Fighting for the Labor Movement. She observed the palpable anger among Florida Democrats, but the party let the anger wither. “Big-shot [Democratic] politicians from across the land were starting to show up, and they all came to the [candlelight] vigil to calm people down,” McAlevey wrote. “It was a mind-blowing thing to watch. Were these guys idiots, did they want to lose, or what?”
Republicans weren’t afraid to take advantage of theatrics, and the Brooks Brothers Riot is proof that this strategy paid off.
Leahy told the Times that he and his fellow members of the board realized the recount was “perceived as not being an open and fair process” which weighed heavily in their decision to end the recount. But what of the fairness denied to those who received complicated ballots, or the victims of Chad Nauseum, disproportionately impacting lower-income areas with less sophisticated ballots and antiquated voting systems. The ire of a mob of well-dressed white men overrode democracy that day, and it was downhill from there. On November 26, Harris declared Bush the winner in Florida by a mere 537 votes. Both Gore and Bush’s legal teams brought forth suits to the county court, the state court, and even the United States Supreme Court. Bush’s team argued that the manual recount violated equal protection laws due to the fact that every county was approaching recounts differently; Gore’s team argued that every vote in the state of Florida must count. But by December 12, in a 5-4 ruling, the Supreme Court called for the Florida recount to end. The Supreme Court’s decision ultimately declared the Bush victor.
The 2000 election was never billed as particularly high stakes. Sure, the last decade had given Americans plenty to be divisive about: Clinton’s impeachment scandal and Ruby Ridge, WTO protests and Rush Limbaugh, Elian Gonzalez, and the aftermath of Columbine. But voters didn’t enter the voting booth convinced that this would be one of the most consequential elections of their lifetimes, that the outcome would ensure decades of war and economic decline. But that’s precisely what happened, along with providing the Republican Party evidence that with enough nerve, they could successfully pull off a political heist.
The Democrats brought a knife to a gunfight, and they learned absolutely nothing from the experience. It’s an attitude that they struggle to shake off to this day. The Republicans took advantage of it then, and Trump has every intention of taking advantage of it now, with a slew of conservative courts at his disposal.
Everything is falling into place. On October 26, Barrett was confirmed by the Republican majority Senate to the United States Supreme Court. She was sworn in later that night, under a literal cloak of darkness during a maskless ceremony. on the White House balcony—the perfect makings of another covid-19 superspreader event. Her entire nomination process was deemed illegitimate by critics given next week’s general election, but expecting the Trump administration or Senate Republicans to adhere to decorum is a pipe dream.
And the day brought about a duel victory for Trump: Earlier, the Supreme Court refused to lift a lower court ruling in the swing state of Wisconsin, which prevented the state from implementing a 6-day extension for the arrival of mail-in ballots. This, as covid-19 numbers increase in the state and United States Postal Service slowdowns drag on. Instead, all mail-in ballots in the state must arrive by Election Day on November 3. In a concurrence, Justice Brett Kavanaugh—another Trump pick—cited the opinion of three conservative judges in the 2000 Bush v. Gore case, when the Supreme Court essentially handed Bush the presidency on a silver platter despite a litany of legal and ethical dilemmas.
“[Wisconsin and others] want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,” Kavanaugh wrote. He added that states “want to be able to definitively announce the results of the election on election night” and that, especially in a Presidential election, counting votes expeditiously is of utmost importance.
Of course, as Justice Elena Kagan noted in her dissent, “there are no results to ‘flip’ until all valid votes are counted.” And anyone invested in even the basic concept of fairness understands that making sure every vote is counted takes priority over haste. But Kavanaugh’s Bush v. Gore logic—that which prioritizes timeliness over justice—is precisely what President Trump is hoping for. On October 28, Trump told reporters he hopes that states counting ballots past November 3 “won’t be allowed by the various courts.” Late-arriving ballots have determined elections before. In fact, a slew of late mail-in arrivals resulted in Democratic victories in a number of California congressional races in 2018 which initially appeared to favor Republican wins. That any Supreme Court judge is hinting at eliminating the chances of such a result is baldfaced in its attempt to hijack the election.
This is a cruel trap of both Trump and the Democratic party’s making, and not even late-night comedians could inject humor into the contentious election results that may follow. At the risk of sounding trite, the stakes have truly never been higher. The United States is at the mercy of a president who did not receive the popular vote, a Republican-controlled Senate that represents tens of millions fewer people than the Democrats, and a conservative Supreme Court that upholds beliefs that are not shared by a majority of Americans.
The 2000 election is largely regarded as a cautionary tale of what not to do; not conceding too early, not voting third-party in a close swing state, not letting a crew of Capitol Hill bros hijack democracy. But now, 20 years later, the election is shaping up to be even more chaotic. Unless Biden wins in a blowout, voters can expect Trump to contest as many state totals as he can, confident in the knowledge that he may have support from the highest court in the land; unlike Gore, who was very concerned with doing the right thing, there’s no reason whatsoever to think that Trump would ever give in. Why would he, when Bush v. Gore showed him just what he can get away with?