The Republicans who buy Donald Trump’s baseless assertion that he was the victim of a vast, shadowy conspiracy that denied him an easy reelection victory argue that this deception includes the nation’s courts. For two huge reasons, the claim about judicial chicanery particularly deserves snorts of derision.
The first is that in Trump’s five dozen legal challenges across the nation, judges appointed or elected by Democrats and Republicans alike kept raising the basic point that allegations of wrongdoing have to be accompanied by evidence. Wild claims from Rudy Giuliani and other Trump lawyers are not evidence.
The second is that after the 2000 presidential election, when Republican George W. Bush and Democrat Al Gore dueled in court over voting results in Florida, GOP lawyers were repeatedly able to win legal challenges over claims of irregularities. Moreover, while the media often short-hands these fights into one U.S. Supreme Court ruling — the party-line 5-4 decision on Dec. 12, 2000, to stop the Florida recounts and effectively give Bush the White House — on other key Supreme Court votes, Bush’s legal team won less divided, and once unanimous, support.
The lesson: Republicans can get judges, including Democratic appointees, to back them in election disputes — if they have evidence backing their allegations.
The recollections of many Americans about the 2000 election focus on claims that the U.S. Supreme Court’s conservatives allowed Bush to steal the election by shutting down recounts that would have wiped out his 537-vote margin of victory.
But subsequent audits by the Miami Herald and other news organizations almost uniformly found that if disputed ballots were counted, Bush’s victory would have stood up and even grown under the standards Gore’s supporters sought.
And in what it is one of the least-remembered crucial facts in American history, the Florida Supreme Court drew blistering criticism from legal scholars in real time in 2000 for its election rulings. The critics included every Democratic appointee on the U.S. Supreme Court.
Jim Baker — the former White House chief of staff, secretary of the treasury and secretary of state under Presidents Ronald Reagan and George H.W. Bush — was brought in by George W. Bush to oversee the campaign’s legal response to Gore’s election challenges. Baker quickly concluded that legal challenges arguing that Florida authorities were acting arbitrarily — in deciding what rejected votes would be judged valid — were most likely to be accepted by federal courts. Such courts had traditionally steered clear of state election litigation.
Baker’s focus on the optics of the dispute proved shrewd because of two dubious decisions by Gore’s legal team. Gore’s lawyers initially only sought recounts in four strongly Democratic counties — prompting the obvious criticism that it was cherry-picking, not broadly seeking a fair and complete statewide recount. And Gore’s lawyers opposed counting late-arriving votes from Floridians serving overseas in the military — a stance that was criticized, rather incredibly, by Gore’s running mate, Sen. Joseph Lieberman, D-Conn.
Baker’s legal strategy was also immensely helped by the Florida Supreme Court’s ruling — after the election — rewriting state laws on deadlines for counties submitting final vote counts and then failing to require compliance with its new deadlines. In an era in which judicial decisions are routinely treated as partisan exercises, it is a remarkable fact that on Dec. 4, 2000, the U.S. Supreme Court unanimously vacated the Florida high court’s ruling on the grounds that there was “considerable uncertainty” about its legal reasoning and cited the possibility that the ruling violated the Florida Legislature’s “plenary” (absolute) power under the U.S. Constitution to set election rules. Liberal icon Ruth Bader Ginsburg joined in the 9-0 rebuke to Florida’s top court.
Nevertheless, on Dec. 8, 2000, the Florida Supreme Court on a 4-3 vote ordered state recounts to continue — without setting standards on which disputed ballots should be counted and without directly acknowledging the unanimous U.S. Supreme Court ruling raising questions about the constitutionality of the Florida court rewriting state election rules.
Four days later, the U.S. Supreme Court issued a number of opinions. In one, on a 7-2 vote (with Ginsburg and John Paul Stephens dissenting), justices concluded the Florida Supreme Court violated due process and equal protection laws by not mandating the same standards in county recounts. But only five justices — the conservative bloc — voted to overturn the ruling, stop recounts and confirm Bush’s victory. Gore conceded the following day.
Justice Antonin Scalia later cited the high court’s broad disdain for the Florida Supreme Court in arguing that it was his court that was standing up for the rule of law.
This will never convince the partisans who believe Gore was robbed. But in the bigger picture, this rich slice of U.S. history doesn’t just undercut Trump conspiracy claims. It annihilates them. American courts will act to correct election irregularities — if competent lawyers offer credible evidence. Trump’s incompetent legal team never came close to meeting this basic requirement.
