Stephen Breyer, a Supreme Court justice, sits down for breakfast and opens up a newspaper. He is greeted by a blaring headline: “Presidential Election goes to the Supreme Court!” This scene could have played out in Breyer’s home on Nov. 4, 2020, or a November day 20 years ago. Breyer is one of the justices who served on the court in 2000 when they decided a case around the Bush v. Gore election. The decision gave Bush the presidency, which he held for two terms. A presidential election that goes to the Supreme Court has only happened once, in 2000, but it may happen again in this election year. The incumbent president, Donald Trump, in a statement given at 2 am on Election Night said that “We’ll be going to the U.S Supreme Court.” Since that statement, the Democratic nominee for President, Former Vice President Joe Biden, has been declared the winner of the election by the Associated Press. Trump has refused to concede the election to President-Elect Biden, maintaining that he will challenge election results in the legal system. While the two situations are not the same, there is much to gain from comparing them, laying the past next to the present.

Bush v. Gore

The election hinged on Florida’s 25 electoral votes. Bush was in the lead by less than a thousand votes when Gore called Bush with a soon-retracted concession. Bush’s tally ended up at 1,784 votes. One of the driving forces for controversy was the notion of a “hanging chad”, where it was unclear who the person voted for. Another aspect of the controversy was the debate of manual vs. machine recounts. An automatic machine recount in all-but-one county left Bush with a lead of 300 votes. Several districts began manual recounts which Bush opposed by arguing they were unconstitutional. After several lawsuits and legislative sessions, Florida decided that it would certify all manually recounted votes that were in by Nov. 14. Bush appealed this decision of an extended deadline to the Supreme Court, who ordered Florida to clarify the extension. Further lawsuits and appeals from Gore followed as Florida’s legislature prepared to award the state election to Bush. 

The Supreme Court heard Bush’s argument that manually recounting votes violates the Constitution’s equal protection clause, as well as Gore’s argument that every vote must be counted. The court decided in Bush’s favor by ordering Florida to stop manual recounts and not certify any manually recounted votes. Gore conceded soon afterwards, with no path to victory in the state. The process took more than two months. Election Day was Nov. 7, the Supreme Court ruled in Bush’s favor on Dec. 12 and Gore conceded the election two days after the court’s decision.

The current situation

According to the Associated Press, Biden has 290 electoral votes, while Trump has 214. Biden gave a victory speech from his home state of Delaware,  and Trump has continued to maintain he has won the election- contrary to all counted votes and major news outlets. The Trump campaign has already filed multiple lawsuits in this election – which are explored deeper here – against Georgia, Michigan and Pennsylvania. Including the three initial suits, Trump has filed 10 lawsuits since Election Day. Of the 10, six were denied and one of those losses was appealed to the Nevada State Supreme Court – though the Trump campaign and Clark County came to an agreement before litigation. One of the suits was won, and the city that lost the initial suit, Philadelphia, has appealed to the Pennsylvania State Supreme Court. The remaining suits are – as of the publication date of the article – in litigation.

The crux of the Trump campaign’s legal argument has four prongs. They allege that they have not been granted sufficient opportunity to observe the vote tallying process, that both mail in ballots and those received late on Election Day should not count and that voter identification procedures were not strict enough to prevent voter fraud. In addition to those three, Trump has asked that all vote counting be permanently stopped, a sentiment echoed in his late night White House statement. It remains to be seen what legal argument the campaign will rely on in their promised Supreme Court appeal.

Comparing the two scenarios

In 2000, the legal controversy surrounded only Florida. Before any recounts, Bush held the lead by 1,784 votes. In comparison to 2000, the balance of this present-day election does not rest on any one state. As it stands currently, Trump has 214 electoral votes, with a lead in South Carolina, which holds 15 electoral votes. Biden leads in Georgia, which has 16 electoral votes. To make up for his current deficit and win the election, presuming Georgia and South Carolina end up being called for their respective leading candidate, Trump will need to gain 77 electoral votes. If Trump’s legal challenges resulted in him winning each state he has filed suit in, he would still fall 15 electoral votes short of the 77 he needs to achieve victory.

Another difference between the two situations is the makeup of the Supreme Court itself. Neither Bush nor Gore were the incumbent president at the time of the 2000 election and therefore, had not nominated any justices to the Supreme Court. In contrast to the lack of effect either candidate had on the court, Trump has nominated three justices, with the most recent being Justice Amy Coney Barrett.

Focusing on Barrett’s nomination to the court, Trump has made statements about the role he wanted his recently-nominated justice to play in the election. He shares, “I think we will end up in the Supreme Court. And I think it’s very important we have nine justices… I think it’s better if you go before the election.” Trump continued, “And I think having a 4-4 situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be 8-nothing or 9-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth judge.”

Conclusion

While Bush v. Gore and the 2020 election are different, both demonstrate the intersection of the Executive and Judicial branches of our government and have timelines longer than the typical presidential election. The nation awaits what the incumbent president and the president-elect will bring to the court, but we can’t look into the future, only the past. Only time will tell if it will repeat itself.