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Today’s election far from the court battle waged in 2000′s Bush v. Gore

Legal experts say chances are extremely slim that the current contretemps will land before the Supreme Court.

In Broward County, Fla., canvassing board member Judge Robert Rosenberg used a magnifying glass to examine a disputed election ballot at the Broward County Courthouse in Fort Lauderdale, Fla., on Nov, 24, 2000.
In Broward County, Fla., canvassing board member Judge Robert Rosenberg used a magnifying glass to examine a disputed election ballot at the Broward County Courthouse in Fort Lauderdale, Fla., on Nov, 24, 2000.ALAN DIAZ/ASSOCIATED PRESS

While pushing false accusations and conspiracy theories, President Trump’s pledge of a long, drawn-out legal fight over the election has sparked memories of a weekslong court battle over Florida ballots, which ultimately sealed the 2000 presidential election.

But several legal experts, including one involved in the historic Bush v. Gore case, say comparisons are fraught and chances are extremely slim that the current contretemps will result in a US Supreme Court decision.

“Zero chance,” said Cambridge lawyer Gerry McDonough, who was involved in the 2000 Florida dispute on behalf of former vice president Al Gore. But given the current political climate, McDonough allowed, "You never know.”


While vote counts continued to trickle in Friday, the still unsettled election landscape looked vastly different than the days following the 2000 vote, which came down to a tally in Florida, where Bush and Gore were separated by 537 votes.

Florida’s highest court ordered a statewide manual recount, and the case landed before the US Supreme Court. In a 5-4 vote, the nation’s top court halted the recount, concluding that vague tallying procedures resulted in “arbitrary and disparate treatment” of ballots.

The opinion made history — and cleared the path for George W. Bush to become president — but even the court’s majority cautioned that the decision shouldn’t be considered a precedent.

“Bush v. Gore kind of stands in for this conceptual idea that the courts could decide the election,” said Erin Buzuvis, an associate dean for academic affairs and professor at Western New England University School of Law.

But the court noted, Buzuvis said, that the ruling was confined to the specific facts of that case in an attempt to insulate it from being used as precedent.

In recent days, Trump has seized on the ruling’s historic significance, making a premature declaration early Wednesday that he had won the election and announcing a plan to take his case to the highest court, even though ballot counting was far from over.


His campaign initiated a flurry of legal activity to try to improve the Republican president’s chances, requesting a recount in Wisconsin and filing lawsuits in Pennsylvania, Michigan, and Georgia. On Thursday night, Trump dug in even further, unleashing a series of claims from the White House podium about fraud and election chicanery — all without evidence.

“Trump is sort of like the boxer, where the fight ended and he still wants to keep fighting in the parking lot,” said Dan Urman, who teaches at Northeastern University’s law school and School of Public Policy and Urban Affairs. “He’s almost forcing courts to say, ‘No.’ ”

And if the courts rule against him, Urman said, Trump is likely to accuse them of bias.

“That’s his whole game,” he said.

The Constitution doesn’t allow Trump or anyone else to take an election dispute directly to the Supreme Court, said John Rice, who teaches at the University of Massachusetts School of Law.

If the Supreme Court does get involved, legal experts said, it would be because Trump has offered evidence that legal violations affected the election’s outcome, not because he’s dissatisfied with the results.

On Thursday, James Baker, the former secretary of state who represented Bush’s team during the Florida recount, told The New York Times that Trump may have legitimate concerns but that he shouldn’t press for the vote counting to be interrupted.


“There are huge differences,” Baker said of the battles then and now. “For one thing, our whole argument was that the votes have been counted and they’ve been counted and they’ve been counted and it’s time to end the process. That’s not exactly the message I heard on election night. And so I think it’s pretty hard to be against counting the votes.”

Several legal observers believe litigation filed in Pennsylvania has the best, albeit very slim, chance of gaining traction if the race comes down to voting in that state.

Two of the lawsuits filed in Pennsylvania draw on legal theories outlined in Bush v. Gore.

One suit highlights the past claims surrounding incomplete marks on the Florida ballots, known as hanging or dimpled chads.

In Pennsylvania, the Trump campaign has called into question some election officials who contacted voters whose mail-in ballots were disqualified for technical reasons. The officials gave them a chance to confirm signatures or fill in missing information.

Since this practice occurred in only some parts of the state, Trumps attorneys argue that the lack of uniformity violates the Constitution’s equal protection clause.

Another legal challenge filed in Pennsylvania draws upon an opinion written by Chief Justice William Rehnquist as a supplement to Bush v. Gore.

Rehnquist wrote that Florida Supreme Court’s decision to order a recount usurped the authority of the state legislature. Though many legal experts see Rehnquist’s opinion as an outlier, Republicans are relying on the theory, challenging an earlier Pennsylvania decision to extend the deadline for absentee ballots.


The US Supreme Court twice declined to stop the counting of the late-arriving ballots in Pennsylvania, but those decisions were issued before Justice Amy Coney Barrett was sworn in and gave conservatives the majority on the panel.

On Friday, Supreme Court Justice Samuel Alito ordered election officials in Pennsylvania to separate late-arriving, mail-in ballots in response to a request from Republicans, though the state’s top election had already announced the practice.

Kent Greenfield, a professor at Boston College Law School, said Republicans would need Barrett to buy into Rehnquist’s opinion to give that argument life.

“It all comes down to Amy Coney Barrett and we don’t know enough about her,” he said. “I would like to think that she wouldn’t go along with that. It would be outlandish. It would destroy her reputation for her entire career."

Barrett knows well the issues surrounding a contested election. She is among the three current justices who worked for Bush during the 2000 recount. The others are Chief Justice John Roberts and Justice Brett Kavanaugh. Kavanaugh wrote favorably about Bush v. Gore in an opinion about mail-in ballots in Wisconsin.

The backlash over the court’s involvement in the 2000 Supreme Court case reverberates to this day, said Rice.

“I think that Bush v. Gore will always be a little bit of an asterisk on the Supreme Court’s reputation,” he said. “I think there’s a real concern now that if election disputes were to get before the court, the dispute would be decided on something other than the law.”


Laura Crimaldi can be reached at laura.crimaldi@globe.com. Follow her on Twitter @lauracrimaldi.