Name: Republicans Are Trying to Make Bush v. Gore Happen Again
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Republicans Are Trying to Make Bush v. Gore Happen Again

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As many election-law doomsayers predicted, Donald Trump has spent the morning after election night misleading the American public about the results, claiming a victory he hasn’t won or complaining of “magically” disappearing margins as votes continue to be counted. None of this is a surprise. Yet none of this is normal. In a normal election where the results are close, Twitter and Facebook and warn their users that the most powerful user of all is spreading misinformation about the electoral process and how lawful votes in key states are still being counted.But here we are. And as results in the states of Wisconsin, Michigan, and Pennsylvania skew in the direction of Joe Biden, the Trump campaign will need far more than confusion and obfuscation to change the president’s fortunes. If the Republican strategy pre-election was to refuse to expand mail-in voting or suppress the right to vote amid a pandemic in other ways, the post-election strategy is twofold: call for recounts where Trump has lost by a slim margin, , or try every legal trick in the playbook to reject valid votes, such as preventing voters from “curing” ballots that may have technical defects, as has been happening and .For both of those maneuvers to stick in the courts, Trump campaign lawyers would need to bring back to life a 20-year-old legal argument that, until now, largely remained buried in the pantheon of legal precedents that aren’t really precedents. That is, they’re anomalies, never to be cited approvingly ever again because they’re not good law. Yes, we’re talking about Bush v. Gore, which in 2000 handed the presidency to George W. Bush. Until this year, the case had only been cited in 2013, and even then only in a dissenting opinion by Justice Clarence Thomas. The five conservatives who ruled for Bush more or less made it plain that their theory of the case was a one-off: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” they wrote.None of them, of course, foresaw an even greater complexity: a president who would one day stand at a podium on election night and call the whole thing rigged. “This is a major fraud on our nation,” Trump said early on Wednesday, pointing to no actual evidence. “We want the law to be used in a proper manner. So we’ll be going to the U.S. Supreme Court. We want all voting to stop.” But there’s no voting to stop, only the potential to challenge ballots already cast, and election-law experts are already pouring cold water on Trump’s desire for a supreme showdown, which would only come to pass “if there were votes of questionable validity that would make a difference, which might not be the case,” as Ned Foley, a law professor who tracks election disputes at the Ohio State University, on Twitter.As things stood on Wednesday afternoon—with totals in Pennsylvania, Michigan, and Wisconsin rendering the prospect of successful challenges remote—there may be nothing of consequence for courts to resolve. Yet the ghost of Bush v. Gore hasn’t quite dissipated, and Republican lawyers seem to be itching for a fight anyway, citing the case in legal filings as if it’s somehow true that Republican voters and candidates, to say nothing of Trump, are at risk of being denied the constitutional guarantee of equal protection of the laws.In Montgomery County, Pennsylvania’s third largest and where Biden is leading, a federal judge on Wednesday a Republican challenge to county officials’ attempts to “cure” so-called naked ballots—meaning mail-in ballots that were sent on time but not placed inside a secrecy envelope, as required by the rules. In the 31st paragraph of the GOP , filed late on Tuesday, Bush v. Gore reared its head: “In Bush v. Gore … the Court determined that Florida’s disparate method of determining a legal vote amounted to an unconstitutional abridgment of the right to vote,” the lawyers wrote. “The Supreme Court held that “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”The argument is a curious one: One county that happens to care about the right to vote can’t protect it more than a county that doesn’t. Under that view, either all votes get cured and counted, or none does. In a second , also filed in Pennsylvania, Republicans didn’t cite Bush v. Gore explicitly, but also made the point that it is unfair of Pennsylvania officials to instruct all counties on how to cure technically deficient mail-in ballots, , while more Trump-friendly counties aren’t inclined to do that for their voters. This inequality, presumably under Bush v. Gore, can’t stand. If Pennsylvania’s guidance on how to cure ballots “is allowed to continue, it creates a high-risk of jeopardizing the integrity of the November 3, 2020 general election,” wrote the lawyers in their complaint.Democratic lawyers have these charges of candidate, county, and voter inequality as overblown. Judges would be wise to dismiss them, too. Except it may be too late. Bush v. Gore is already out of the bottle again, thanks not just to Republican lawyers, but — including Brett Kavanaugh, who brought it up that declined to reinstate an extended deadline for receipt of mail-in ballots. His opinion, , may yet be what’s animating the Trump campaign’s latest legal play, announced just moments ago: a bid to in the state over concerns about a lack of “transparency,” whatever that means. “The United States Constitution is clear on this issue: the legislature sets the time, place, and manner of elections in America, not state courts or executive officials,” said a Trump campaign deputy manager, echoing precisely the arguments Kavanaugh endorsed in last week’s .Wasting no time, on Wednesday evening the Trump campaign rushed to the Supreme Court to intervene in a pending dispute in Pennsylvania, , that may open the door to discarding tens of thousands of votes postmarked on Election Day . You guessed it: Bush v. Gore gets prime billing in the legal , which warns of doom and gloom that, at this very moment, appears uncertain. “Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States,” Trump’s lawyers wrote.Most PopularOutside the courtroom, all this noise will likely get noisier. seem to be trying to reenact the famous “Brooks Brothers riot” that helped shut down the Florida recount in 2000. Meanwhile, giving press conferences congratulating Trump on his “win” there. And by Twitter decree, which has no force of law, Trump just “” Pennsylvania, Georgia, North Carolina, and Michigan.But the reality is that we needn’t panic just yet. So far, Republican-aligned media outlets and politicians are not going along with Trump’s scheme. Rupert Murdoch reportedly for Biden after Trump rang him personally on election night, and the network continues to play it straight with remaining election returns, without amplifying Trump’s legal challenges so far. GOP figures — not yet at least. And from a strictly legal perspective, as University of California at Irvine law professor Rick Hasen this morning, Trump will need more than an empty vow to take an election challenge to the Supreme Court to actually make a blockbuster happen.For one, he’ll need a race so tight in a battleground state that litigation over a recount would make sense. And two, the state where the litigation takes place has to matter for the final count in the electoral college. “So could the election be litigated to a conclusion? Sure,” Hasen wrote. “But it’s not likely unless there is significant tightening in both the electoral college projections and the absolute margin in a key state.” Since those conditions haven’t been met, and likely won’t be, don’t count on Bush v. Gore to come back to haunt this already-unnerving election cycle.

As many election-law doomsayers predicted, Donald Trump has spent the morning after election night misleading the American public about the results, claiming a victory he hasn’t won or complaining of “magically” disappearing margins as votes continue to be counted. None of this is a surprise. Yet none of this is normal. In a normal election where the results are close, Twitter and Facebook and warn their users that the most powerful user of all is spreading misinformation about the electoral process and how lawful votes in key states are still being counted.But here we are. And as results...

Republicans Are Trying to Make Bush v. Gore Happen Again

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