Bush v. Gore—Trump v. Clinton

 

Chris Wallace:

[T]here 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?

Mr. Trump’s refusal to say during the third presidential debate whether he would accept the results of the upcoming election (he would later acknowledge that he would accept the results if he won) instantly evoked memories of Bush v. Gore.  For younger folks and those recently out of law school, the following primer may be of assistance.

Facts of the Case

In Bush v. Gore (2000), a divided Supreme Court ruled that the state of Florida’s court-ordered manual recount of vote ballots in the 2000 presidential election was unconstitutional. The case proved to be the climax of the contentious presidential race between Vice President Al Gore and Texas Governor George W. Bush. The outcome of the election hinged on Florida, where Governor Bush led Vice President Gore by about 1,800 votes the morning after Election Day. Because the returns were so close, Florida law called for an automatic machine recount of ballots. The recount resulted in a dramatic tightening of the race, leaving Bush with a bare 327-vote lead out of almost 6 million ballots cast.

http://www.pbs.org/wnet/supremecourt/future/landmark_bush.html.  Cockle staff worked on Supreme Court briefing throughout that fateful fall weekend.

Question Presented

The landmark case asked (1) whether the Florida Supreme Court violated Article II, Section 1, Clause 2, of the U.S. Constitution by making new election law; and (2) whether standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution.

Holding

On December 12, 2000, in a 5-4 per curiam decision, the Court ruled that the Florida Supreme Court’s recount order was unconstitutional because it granted more protection to some ballots than to others, violating the Fourteenth Amendment’s Equal Protection Clause. “The clause forbids states from denying ‘to any person within their jurisdiction the equal protection of the laws.’ ”  The Supreme Court held that “voting for a president constituted a ‘fundamental right’ strictly guarded by the Equal Protection Clause, and that the Florida Supreme Court’s order violated this right because it was ‘arbitrary.’ ”  Id.

In the concluding lines of his dissent, Justice John Paul Stevens proclaimed that “one thing … is certain. 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.”

2016 Implications

According to attorneys involved in Bush v. Gore (read this Los Angeles Times article for detailed discussion), the 16-year-old decision will likely have little effect on the 2016 presidential election.

David Boies, who argued then-Vice President Al Gore’s case before the Court, rejected Trump’s comparisons between the 2016 election and the contested vote that put Bush in the White House:

In 2000, both George Bush and Al Gore said that they would respect and abide by whatever the ultimate [result] was, Boies said in a phone interview. But there was never a suggestion by either side that they would impugn the legitimacy of the result, that they would claim it was a rigged decision, that they would claim it was flawed.

However, Boies said he was confident that Trump would concede the election to Clinton if he lost. My personal view is this is not going to be that close, Boies said.