Since Joe Biden was declared the President elect, several Trump supporting Twitter users have sought to push the hashtag #BushGore. Citing the 2000 presidential election in which Al Gore was declared the President elect for thirty seven days before the Supreme Court ruled in Bush’s favour thus making him President instead. Their hope, I assume, is to remind us there is precedent for overturning the status of a President elect.
The ruling has been re-upped in people’s minds ahead of the election, not only in the expectation of close race — something that has not manifest, as I will explain below — but also because on October 27, a week before the election, “Justice Brett M. Kavanaugh cited the case in his explanation of why he voted to deny a request to reinstate an extension for the receipt of mail-in ballots in Wisconsin”. There was clearly concern that this was an omen for any future ruling the Court would have to make on this year’s election.
However, there are a number of very clear reasons why placing faith in Bush vs Gore is a waste of time.
The most obvious of which is simply the numbers. In 2000, the difference between the two candidates in the state of Florida was 537, representing 0.009% of the total vote cast. Even though the polls were more optimistic, the Biden camp and their surrogates were adamant the race would be closer that what was being indicated. The final result did not reflect some polling, but it is also nowhere near the margins in Florida, 2000. For example, Biden’s lead in the ‘Blue Wall’ states is 213,000, three times the size of Trump’s margins of victory. Across the entire map, that lead expands to 276,000 in other battleground states. And even in the states where Trump is closest, his margin isn’t really that thin. In Georgia, for example, Biden’s lead of 0.24% is larger than Trump’s win in Michigan in 2016.
Nonetheless, Georgia’s secretary of state, Brad Raffensperger, has called for recount — the exact details of which are unclear — but the respective campaigns ought to be weary of placing too much faith in this approach. In 2016 there was a recount in Wisconsin which wielded Trump just 131 extra votes. Moreover, there is evidence that the Trump campaign isn’t willing to fight similar battles if it can’t get additional money to do so.
This conveniently alludes to another difference — that there are multiple states involved this time. Some of which are looking better for Trump as they continue to count (Arizona), but most of which aren’t. The lack of consistency from the Trump campaign makes any legal case more susceptible to being exposed as what it really is: a political hit job. Unlike in 2000, when the ‘hanging chads’ became the defining issue, this time, there is no such thing. Consequently, the Trump legal team is 0–12 in lawsuits since election day, and considering the leadership of Trump’s legal team, I am not surprised.
A final point of consideration is that in 2000, the case came to the Supreme Court with Bush in the lead. As is the case this year, where Biden leads in all states in which the Trump campaign are targeting legal proceedings (because they seems perfectly happy with the outcome of the election in North Carolina, Texas, and Florida), it would take a remarkable example of judicial activism to overturn any one of these leads. Not only is there a precedent to respect states’ rights — as cited by Justice Kavanaugh only a few short weeks ago — but the elections in Arizona and Georgia are also being ran by Republicans, thus making the case of political malpractice even harder to prove.
What appears to be happening is the Trump campaign are running a playbook specifically designed for a much closer election, which they didn’t get. Instead of conceding outright, or nuancing their approach at the very least, they are carrying on as if no one will notice. All of these points, and more, mean it is incredibly unlikely the Trump campaign succeeds with its legal strategy. I suspect an increasing number of them know this. But, as the saying goes, “when the fall is all there is, it matters.”