They Did It Once, Would They Do It Again?

In December of 2000, the Supreme Court of the United States stopped a legal and legitimate recount of uncounted votes in Florida and declared George W Bush the president. It was and remains one of the most controversial decisions in the Court's 200+ year history.

For those who may have forgotten, the Presidential election of 2000 was unlike any other. It all came down to Florida and as the dust settled in the early hours of the next morning, George W. Bush led the vote count by less than 600 votes. Al Gore refused to concede given how close the election was and thus began 30 days of recounts and court cases.

Finally, on Friday, December 8, 2000 the Florida Supreme Court ruled that all the votes that were not counted by machines would be counted by hand over that weekend. The criteria would be the clear intent of the voter. If the intent could be clearly discerned, that ballot would be counted.

Early the next morning, citizens across Florida volunteered to recount some 175,000 ballots that were missed by the machines.

By noon, they had done nearly all of the undercounted votes and were beginning to count the overvotes. An overvote is where a voter may have voted for more than one candidate. In the case of 25,000+ votes in Duval County, they had voted for Al Gore and then wrote his name in as well. In Duval, local regulations considered these overvotes and were never counted. But under the rules of the Florida Supreme Court, where voter intent was the overriding issue, it was clear that those 25,000 votes were intended for Al Gore. But before they could be counted, the US Supreme Court suddenly stopped the recount.

Mr. Roberts is now the Chief Justice. He has overseen the greatest disenfranchisement of voters in the history of our nation.

In an unprecedented move, the court used the issue of equal protection to say that George W. Bush could be harmed by continuing. It was an odd choice given that the 14th Amendment, which covers equal protection, was originally created in the aftermath of the Civil War to protect former slaves. The equal protection argument was proposed by John G. Roberts Jr., a member of the Bush legal team. Mr. Roberts had clerked for the then Chief Justice William Rehnquist and wrote that by counting all the ballots, Bush could be denied his equal protection under the law. The Rehnquist Court agreed.

Mr. Roberts is now the Chief Justice. He has overseen the greatest disenfranchisement of voters in the history of our nation. These include approving Indiana's onerous ID restrictions strategically designed, according to the ACLU, to remove African Americans from the voting rolls; gutting key provisions of the Voting Rights Act which had protected voters from the worst excesses of Jim Crow voter suppression; and approving Ohio's right to purge voters who have not voted in past elections, opening the door for Ohio and many other Republican controlled states to remove what the Brennan Center estimates are tens of millions of registered voters.

Only last year, Chief Justice Roberts wrote the conservative majority opinion that bans Federal Courts from addressing blatant partisan gerrymandering, even acknowledging that it distorted and perverted the electoral process. Roberts was also instrumental in the Citizen's United decision which cast aside over a century of campaign finance laws, giving a green light to special interests and lobbyists to literally buy elections.

It should not be forgotten that it was Chief Justice Roberts's conservative majority that just weeks ago overturned court decisions in Wisconsin that, faced with our national pandemic, sought to extend the deadline for absentee ballots. As Justice Ginsburg wrote in her angry dissent, the court's decision forced voters to choose between endangering their safety by showing up in person or losing their right to vote. As of this writing, at least 19 residents have contracted the coronavirus as a result of voting that day. And that number will likely rise.

Medical advisors warn that the pandemic will be with us this November. What if Mr. Trump issues an executive order to postpone or even cancel the election on grounds of national emergency? Or--as he has recently insisted in a campaign email--because Democrats intend to steal the election out from under him, he declares the results invalid? We would turn to the courts in an effort to seek justice.

Can there be any doubt that Chief Justice Roberts and his conservative majority would not provide legal cover for Mr. Trump however outrageous his claims or unconstitutional his actions? When the Court decided Bush v Gore, there was a significant outcry. But we agreed as a nation to move on and honor the rule of law. Would we do the same in this case?

Fred Silverman Produced and Directed Who Counts for PBS in 2002 which focused on the Florida recount of 2000. He and Bob Barnett are producing a film on the Supreme Court and its war on voting called Democracy on Trial.