During the ongoing coronavirus pandemic, many have expressed interest in vote-by-mail because of the health risks associated with large crowds at polling places. In response, President Donald Trump repeatedly criticized voting by mail by falsely claiming it facilitates voter fraud. Some have also been concerned about the policies of the new Postmaster General, Louis DeJoy, that will slow delivery significantly just three months before the election. In addition, the Trump campaign has sued New Jersey and Nevada for their plans to increase voter accessibility in their respective states. These lawsuits rely heavily on the legal reasoning laid out in the U.S. Supreme Court case Bush v. Gore. If successful, they could drastically change future elections for the worse.
On Aug.14, New Jersey Gov. Phil Murphy (D) issued an executive order that gave every voter in the state a mail-in ballot. On Aug. 3, Nevada Gov. Steve Sisolak (D) signed legislation that sent absentee ballots to all active voters. Trump accused these moves to increase voter turnout as politically charged, saying the decision would “[make] it impossible for Republicans to win the state.”
It’s not difficult to guess why Trump attacked vote-by-mail and brought lawsuits against NJ and NV. Studies have shown that former Vice President Joe Biden leads among people who intend to vote by mail, with 76% of people who intend to vote by mail being Biden-voters while only 20% are Trump voters. The obvious partisanship doesn’t stop there though — Trump reversed his attacks on mail-in voting when it came to Florida, citing that “Florida’s got a great Republican governor.”
The reprisal of Bush v. Gore is one of the most jarring aspects of the Trump campaign’s lawsuits. The case’s 5-4 ruling ended a Florida vote recount in the 2000 presidential election between George W. Bush and Al Gore. Although the case still resonates in our culture and is often criticized for its seemingly outcome-driven, partisan judicial decision making, its legal principle has since been regarded as a one-time-only event. The decision has not been cited since the 2000 election. However, as Trump continues to escalate attacks on mail-in voting, his lawyers are trying to revive Bush v. Gore. Trump’s lawyers are citing the case to argue that states’ mail-in voting procedures vary too widely to be protected under the Constitution.
The Bush v. Gore debacle tore apart the country in 2000, a considerably less polarized time. On election night, Florida’s 25 electoral votes were up for grabs, and the race was determined too tight to call that night. For the next five weeks, the country was seized in a war of ballots, election laws and the courts. The final decision by the Supreme Court determined that the recounts must stop, as the process for assessing the contested ballots varied too much from county to county. This disastrous decision was seen as deeply partisan.
If this new legal approach succeeds, not only would it legitimize Trump’s unfounded attacks on vote-by-mail, but it would also inevitably catalyze more Bush v. Gore-inspired litigation. Joan Biskupic, CNN legal analyst, wrote “As Trump continues to challenge mail-in voting, it is not difficult to imagine more Bush v. Gore-inspired litigation and even a possible replay of the milestone case in the guise of Trump v. Biden.” The Trump campaign is claiming that New Jersey and Nevada have made unconstitutional decisions to increase voter turnout in their states. Like in Bush v. Gore, if Trump’s legal argument wins over the courts, hundreds of thousands of votes could be discarded this November.
The Trump campaign is teeing up a future of highly political litigation where Republicans can seek relief from courts dominated by Republicans. If the case goes forward, another very conservative Supreme Court could very well decide the fate of another election. Bush v. Gore was one of the most politically consequential decisions in U.S. history, and permanently damaged the court’s image as an institution above politics. As baseless voter fraud accusations become more salient in our culture, more and more election results will be contested and the courts will be left to decide their outcomes. If Bush v. Gore is not only repeated, but legitimized in the legal canon, the role of the courts in our elections may be forever changed.
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