The Shadow of 2000

The two parties learned different lessons from the last contested election.

I listened to today’s episode of the NYT The Daily podcast, “The Shadow of the 2000 Election,” on the drive in. Despite having lived through it—and, indeed, being a young political science professor teaching multiple sections of American Government at the time—it changed my perceptions of that contest somewhat.

As regular readers will know or at least have surmised, I voted for the ultimate winner, George W. Bush and was happy with the outcome. But the combination of the passage of time and the news sources I was predominately consuming at the time (I was reading and listening widely but the Internet was just becoming a major news source and I was still a rather avid Fox News watcher and Rush Limbaugh listener) have distorted my sense of what happened.

First, while I steamed over it for years, I had largely forgotten that the networks erroneously called Florida for Gore while voting was still going on in the Florida Panhandle.

Second—and this was almost certainly the Fox/Limbaugh/talk radio influence—I had the wrong impression/recall of the whole “hanging chad” issue. Essentially, my recollection was that lots of people were just too stupid or lazy to vote correctly. While I’m sure that was indeed true, there were legitimate mechanical obstacles in the way voting machines were designed (namely, the detached chads would pile up inside and make it hard to get a clean punch) that impacted the vote.

Third, while I remembered the “butterfly ballot” fiasco that led to some untold number of Jewish voters in Palm Beach County voting for Pat Buchanan, I didn’t realize or remember just how many votes were likely impacted—perhaps some 60,000 in a contest decided by a few hundred ballots.

Fourth, while I was at the time angry about the way Al Gore was conducting his legal fight and the rulings of the Florida Supreme Court I had forgotten how brazen they were in trying to stack the deck. The Gore team cherry-picked heavily Democratic precincts in which to find additional votes and, in contravention of existing rules, the courts allowed them to get away with it. While Bush v Gore was a really questionable in many ways, I’m more convinced now than I was yesterday that the outcome in restoring the rules that we went into the election with was the right one.

Fifth, while I’ve always given Al Gore credit for how well he handled the (second) concession, I hadn’t heard the original in two decades. It was incredibly gracious and self-deprecating under the circumstances.

Sixth, while I vaguely remember the “Brooks Brothers riot,” I did not recall that as the beginning of the Republican Party’s obsession with “voter fraud.”

The last point is really the thesis of the episode, although it takes some time to get there. Republicans, myself included, legitimately thought Democrats were trying to steal the election. But the specific thing being protested wasn’t in fact “voter fraud” or, indeed, untoward.

That the Gore team had successfully petitioned the courts to change the rules written by the state legislature to allow four heavily-Democratic precincts to recount the votes was outrageous. That the three election officials decided that, since they simply lacked the manpower to count all the votes in the precinct in the time available and would therefore focus on just ballots they knew hadn’t been counted was problematic but not fraudulent. And, while it was easy to make fun of the attempts to divine voter intention by looking at undetached chads—and to assume ill motive given that the officials were partisans—there was no actual evidence they were doing other than their level best to do a thankless job.

My view at the time, and to this day, is that Bush was legitimately elected under the rules of the game but the rules of the game need to be changed. (Additionally, unlike 2016, the closeness of 2000—and the pre-election polling was even closer than the final balloting—meant there was an argument to be made that Bush could have won the popular vote if the contest was waged with that as the objective.)

I thought then and think now that Bush won Florida under the rules of the game but that considerably more Florida voters intended to vote for Gore—and even more preferred Gore to Bush. That is, the butterfly ballot (designed, by the way, by Democratic election officials, so certainly with no ill intent) doubtless gave Buchanan votes that were meant for Gore. And almost all Ralph Nader voters would have chosen Gore over Bush in a run-off or instant-runoff system.

I’m more adamant now that the rules simply have to be changed to respect those preferences. I assumed at the time that the Electoral College would be gotten rid of forthwith, displaying a naivete about both voter attention spans and how hard it is to fix the system given that it creates perverse incentives.

Regardless, the irony of 2000 is that the Democrats tried to steal an election that they should probably have won and the Republicans came away understanding that, if the preferences of all voters are accurately tallied, they can’t win. So, they turned to increasingly nefarious means of making it harder for those likely to vote Democrat to do so.

Aside from being evil and undemocratic, it has been counterproductive. The lesson of 2000—and every election since then other than 2004—should have been that the platform and message needs to change in order to attract a wider swatch of a changing electorate. (Although, in fairness, Bush legitimately tried to do that, with at least some success.) But, if the game is rigged by suppressing the Black vote, then the incentive is to drive up gap in the white vote. That’s increasingly a losing strategy.

FILED UNDER: Campaign 2020, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Liberal Capitalist says:

    GOP 2020 – MAGA … Cheat to win !!!

    3
  2. Scott says:

    If we continue in the same way where a minority in the country has the power and works to maintain and expand that power (even through legitimate ways), then our political system will become increasingly unstable. How far are we from Belarus, anyway?

    7
  3. KM says:

    I thought then and think now that Bush won Florida under the rules of the game but that considerably more Florida voters intended to vote for Gore—and even more preferred Gore to Bush.

    No offense James but this is the kind of crap that pisses of populations and sparks revolutions. The intention of the People involved doesn’t matter, only the obscure rules made by those in power to keep power in the hands of those they like. “The rules of the game” is Lawyer for disqualify what we don’t like to get the preferred preference. When people are told their vote didn’t count because of some nitpicky minutia, they’ll get rightfully angry… and if it means a second POTUS from the same Party in 2 decades gets elected using dodgy logic that was specifically stated to *not* be precedent, then it’s going to wind up with stuff on fire.

    If you win the Lotto for $900 million dollars but are told it “doesn’t count” because you used the wrong pen to fill in your choices and a bubble was slightly overfilled, you are going to feel cheated and want to do something about it. It’s the system deliberately screwing you on a technicality they inserted for just that purpose; the intent was ALWAYS to have a way to goose the outcome into their favor. Do you take it lying down or do you decide that since the system screwed you, screw the system and get what’s yours?

    The GOP has been taking dangerous risks with our system for decades now and it’s finally coming home to roost. 2000 was dismissed as a “one-time evil” but it was the template for future disregard for the process in favor of liberty-destroying rules lawyering. It’s a losing strategy alright but what exactly they’re going to lose is far worse than they expected if they try it again……

    20
  4. James Joyner says:

    @KM: The rules of a game have to be agreed to in advance. They were.

    The butterfly ballot was poorly designed, by complete accident, by a Democratic election official. But you can’t simply award the Buchanan votes to Gore.

    The punch ballots are similarly a bad design, but less so. But you can’t simply assume that every indentation on a page was an intentional vote. Or that, if the voter was otherwise straight Republican/Democrat, they intended to vote for Bush/Gore. It just doesn’t work that way.

    The Republicans weren’t trying to rig the game by requiring people punch the chads all the way out. It was a bad process with no ill intent.

    Changing the rules after the fact, knowing that Democrats need to find a few hundred votes, is far worse than following the rules agreed to at the outset.

    8
  5. OzarkHillbilly says:

    @Scott: (even through legitimate ways)??? They might be legal, even constitutional, but it takes more than that to confer legitimacy.

    3
  6. KM says:

    @James Joyner:
    I cited your statement that you acknowledge that more FL voters intended to vote for Gore. May I ask how do you know that? If you are citing polls, then ignore the below screed but if you are referring to the data from the vote in question then intent is relevant indeed. It seems that it could have been clarified with the voters themselves. Contact the voters whose ballots were spoiled or in question and ask them to repeat their vote. If they clearly changed the vote (ie went Bush when it was an iffy Gore or Buchanan) then they can be safely disregarded. If the same result repeats, then you can be reasonable certain of their intention. That’s the most democratic way to do it and would have avoided not only a terrible SC precedent but any illegitimacy claims of Bush’s Presidency. However, as you noted those “weren’t the rules” even if it would have been a good idea for both sides. The letter of the law destroyed the spirit of it.

    I’m not saying Republicans were trying to rig the vote by requiring proper punching or that the poor design was their fault. I’m saying they took advantage of a situation for their gain instead of attempting to ascertain the true results. In other words, might makes right and if they could get away with an election they may have technicality lost, why not use a technicality to claim it anyways? 2000 is rightly perceived as a mess by many specifically because it looks like the SC and the GOP took something that’s not theirs by Loopholes in the Law, not the Will of the People. They made a conscious choice to abuse rules to get the result they wanted instead of checking to see what the (likely unfavorable) outcome was. It was the cementation of Might Makes Right as a guiding government principle for them and we’re seeing them now try to do the same damn thing to secure a Trump win.

    5
  7. Modulo Myself says:

    Bush vs Gore ended up halting a statewide recount, which kind of invalidates the idea that Gore was cherry-picking Democratic counties. IIRC, the Times found that both over and under votes would have given the state to Gore, but the one he had selected would have given the state to Bush. How this would have played out is unknown.

    More importantly, all sides knew that more people intended to vote for Gore than Bush in the state. Because of this Fox News bubble short-circuited this fact and turned Gore into some insane villain who was trying to ‘steal’ an election or some shit while meanwhile GOP hacks were rioting because votes were being counted. Overall it was a great success for the GOP, but it also set the groundwork for the endless whiny assaults on voting rights that followed.

    12
  8. James Joyner says:

    @KM: In many close sporting contests, league officials will admit afterwards that they got a crucial call wrong. In almost no circumstance, however, does that overturn the outcome of the game—even if the call was on the deciding play. Presumably, that’s because any number of other mistakes might have likewise affected the game but aren’t being likewise reconsidered. We essentially don’t do “do-overs.”

    Obviously, the stakes are higher in a Presidential election. But the same precepts apply. Changing the rules after the fact, when the impact of the new rules is clear, is simply not acceptable. Much better to adhere to flawed rules put in place under a veil of ignorance.

    2
  9. Scott says:

    @OzarkHillbilly: You’re right, of course, about the difference between legal and legitimate.

    3
  10. Mike in Arlington says:

    @Modulo Myself: IIRC, Gore first requested a recount for just those 4 counties, but then later revised his request for a recount for the entire state.

    5
  11. Gustopher says:

    @James Joyner:

    The rules of a game have to be agreed to in advance. They were.

    If the rules thwart the will of the voters the rules should be changed — on the fly if they have to be. Sometimes, you cannot predict all possible bad outcomes ahead of time.

    There should have been a statewide recount in Florida. Or at least a recount of all areas that used a given technology — all the hanging chad counties, for instance. And even in that, when the dimpled chads became an issue, they should have been separated, and either counted or not uniformly.

    (Part of the reason the Gore campaign started piecemeal was that the Secretary of State, a Republican, was resisting statewide measures, and the areas Gore’s team was getting to recount were run by friendly officials — lots of problems there, but that’s the system)

    I’m not sure the butterfly ballot could be fixed.

    And now looking at 2020 — we should count every legally cast ballot. If the post office is taking an extra few days to deliver ballots, we should count them, even if it means changing rules on the fly.

    If the law was that ballots must arrive by Election Day, adjust to postmarked 2 days before Election Day or lacking a postmark and arriving while the majority of the ballots are postmarked before the cutoff…

    If signatures don’t match, try to contact the voter.

    If a security envelope is missing, count the vote.

    If polls close while people are still in line to vote, count the people who didn’t get to vote, calculate the percentage, and then remove that many votes from all other precincts that were adequately staffed. (I guess you could also let the people vote, but that creates incentives to make people wait longer next time in hopes they give up)

    6
  12. mattbernius says:

    I realize that a case at the level of Bush v Gore requires a very large legal team to handle all the moving parts. But I also think that it cannot escape notice that 33% of the Supreme Court is now made up by people who worked or volunteered for team Bush. That doesn’t fill me with a great deal of faith to have them “call strikes and balls” while making decisions about a number of election issues that will be coming to over the next few weeks.

    https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html

    12
  13. Teve says:

    @ryanlizza

    These dueling opinions from Kavanaugh and Kagan on mail-in ballots may be the most important story of the day:

    Kavanaugh: late ballots could “flip the results of an election”

    Kagan: “there are no results to ‘flip’ until all valid votes are counted”

    @ryanlizza

    Fun fact: Supreme Court Justices Kavanaugh, Barrett, and Roberts all worked on legal issues for the Bush campaign during the 2000 Florida recount when a core argument from Bush (and eventually Gore, via Joe Lieberman) was that late arriving military ballots should be counted.

    9
  14. KM says:

    @James Joyner:

    Changing the rules after the fact, when the impact of the new rules is clear, is simply not acceptable.

    Again, this is a biased view in favor of rules logic. We damn well do do-overs in society if we value the result. If someone was sentenced to death but the court later admits it made a mistake, says they weren’t guilty but will not vacate the sentence, do you still kill the inmate? If you execute an innocent man based on the original ruling and claim it’s “not fair to overturn the outcome”, is that within the rules? For that matter, isn’t a pardon a do-over even if it’s part of he rules since it overturns the original decision?

    That’s overturning the result but it’s a preferable one. We don’t overturn sports results because it’s “too messy” and frankly the leagues are too lazy to deal with the fallout. Letting incorrect decisions stand simply because “I have spoken” and “those are the rules” ignores that rules have often had in-built processes intended for self-correction. Gore was using them and the GOP shut him down. Gore asked for a recount and examination of the ballots that, if done properly according the rules, would have have given him the win. That what the officials were admitting – the rules weren’t followed because the GOP abused a loophole to circumvent it.

    9
  15. Modulo Myself says:

    Part of the reason the Gore campaign started piecemeal was that the Secretary of State, a Republican, was resisting statewide measures, and the areas Gore’s team was getting to recount were run by friendly officials — lots of problems there, but that’s the system.

    Right, the Republicans fought a good-faith recount the votes the entire way through.

    2000 was the year where measures useful to voting in democracy became dirty tricks perpetuated by Democrats up to having votes counted. It’s lodged itself deep inside the lizard brain of these people. They really can’t imagine how you might want to win but also have enough self-respect not to be a craven, rage-filled loser who would lie about anything for ‘victory’.

    8
  16. Loviatar says:

    3 key points from 2000 Bush vs Gore:

    A Republican led Supreme Court intervened in the election to select their preferred Republican candidate.
    – Republicans were and are fine with that decision.

    A Republican led Supreme Court declared that their decision was not precedent and was not to be used in the future.
    – Republicans were fine with that statement.

    Republicans are now fine with using 2000 Bush vs Gore as precedent (Kavanaugh) in order to intervene in an election to select their preferred Republican candidate.
    – James Joyner is a Republican and just like every other Republican, he will change his words to say whats most beneficial for him. Notice I did not say he would change his mind or his actions.

    14
  17. Modulo Myself says:

    We don’t overturn sports results because it’s “too messy” and frankly the leagues are too lazy to deal with the fallout.

    Also, sports are a game. I do get the sense that what Republicans love about rules are what everyone else has found to be a huge tragic flaw in human society. It’s like reading Billy Budd as an instructional manual for justice.

    7
  18. Scott says:

    Currently, our nation’s legal and political system, acknowledges the Supreme Court as the final arbiter of laws. However, if injustice is increasingly perceived, then that norm will be ignored by some state or other entity and we will have a crisis on our hands.

    In 1857, the Supreme Court, in the Dred Scott case, under Chief Justice Roger Taney, sought to settle the slavery question once and for all by declaring that black people, regardless of slave status, could not be citizens.

    The decision did not decide anything in the country and the outcome ended in the Civil War.

    I can’t predict there will be a breaking point but I sense that many are feeling that way.

    9
  19. wr says:

    @James Joyner: “Changing the rules after the fact, knowing that Democrats need to find a few hundred votes, is far worse than following the rules agreed to at the outset.”

    How about the Republican secretary of state deliberately disenfranchising thousands of Black voters whose names bore some resemblance to that of convicted felons?

    13
  20. MarkedMan says:

    @James Joyner:

    But you can’t simply assume that every indentation on a page was an intentional vote.

    Whoa. Most states had a law that said, in effect, if there is a problem with the ballot but the clear intent of the voter can be determined, that ballot should be counted. Florida did not, and the Florida Republican who was both responsible for interpreting the rules that did exist and was Florida chair of the Bush campaign used ridiculous interpretations to slant the count to the Bush side. In this case it wasn’t a light indent, but rather a clean punch that left a tiny sliver of paper still connected. I actually had a chance to examine one of the infamous hanging chad voting machines and given the construction there is no way a voter could be aware that sliver was still there.

    As for Democrats targeting select precincts, you are conveniently forgetting that the Bush campaign chairman was similarly targeting select groups on the other side. In one example ruling that military ballots, which usually favored Republicans, could arrive late but no other mail-ins could.

    Face it James, you can draw a direct unbroken line between the people running the Republican Party today and the lynchings and intimidation of black voters starting after the civil war. The modern Republican Party doesn’t even try to appeal to voters they feel are “other”, they try to keep their votes from counting. The idea that the “rules were agreed” to is a farce. Poll taxes were legal. “Civics Tests” were legal. When a corrupt and evil group has the executive, the legislature and the judiciary in their pocket, yes, they can legally pass rules to disenfranchise the people they don’t like. But when a disenfranchised group has no legal recourse to obtain a fair outcome then the state has broken the civil contract. This is the path to revolution.

    13
  21. Kathy says:

    Gore had to fight Clinton fatigue, as well as the perception that there was no substantial difference between him and Bush the younger. It seems hard to believe, and it’s hard to even remember, but that was the position of many commentators at the time. granted no one expected 9/11, nor how the response would shape up.

    I’d favored Gore in 200. By the time 9/11 happened, I was glad it was Bush who’d won because at the time I thought that: 1) A GOP Congress would have focused on blaming Gore and Clinton, and have gotten in the way of a necessary response, and would criticize it incessantly no matter what Gore did. 2) I thought perhaps a Gore administration would have handled things as a criminal mater, when clearly it was an act of war.

    I didn’t anticipate the quagmire in Iraq, nor in Afghanistan, nor the constant, globalized, low-intensity war that followed.

    Yeah, I’ve changed my mind since then.

    5
  22. MarkedMan says:

    Josh Marshall says it better than I could:

    Meanwhile, Justice Kavanaugh, himself a former Republican political operative rinsed and rebranded as a High Court Justice, issued another ruling to restrict voting access in the current election. Critically and ominously he added what amounted to a threat to use the Court to block vote counting after election day or mail-in votes altogether. Kavanaugh laundered Trump’s tweet threats into SCOTUS-ese. But the message was the same. He aped the Trump’s line about “chaos” and uncertainty if there’s no definitive result on election night even though the election night result is purely a function of election calls by media organizations. No states publish or certify election results on election night. It always takes days and usually weeks to do.

    We all understand that we’re used to knowing who won on election night and we’d all like this to be done. But Kavanaugh’s gambit highlights the fact that knowing the results on election night or halting the counting of votes on election night is purely a figment of press schedules and cannot have any legal or constitutional standing. He is simply part of the greater Republican corruption and its increasingly open program to use the power and legitimacy of the Supreme Court to engineer Republican election victories even its candidates can’t muster the most votes. It is a corrupt program; it is a corrupt Court.

    There are people of good will who believe that saying such things out loud undermines the legitimacy of the Court. This is quaint and sad. Because the authors of the corruption rely on this fealty to a broken legitimacy to advance their corruption, to sustain a respect for norms, precedent and rule-following as they run roughshod over all of them.

    9
  23. gVOR08 says:

    @wr:

    How about the Republican secretary of state deliberately disenfranchising thousands of Black voters whose names bore some resemblance to that of convicted felons?

    And the current GOP governor and legislature are now doing all they can to prevent felons who have served their sentences from voting, in the face of the constitution being amended to restore their right to vote by a referendum with overwhelming support.

    5
  24. MarkedMan says:

    Shorter James:

    Republicans: We are Calvin and the rules of Calvin-ball are what they are and you just have to take it and shut up.

    An increasing number of Democrats: F*ck your Calvin-ball

    16
  25. Teve says:

    @gVOR08:

    And the current GOP governor and legislature are now doing all they can to prevent felons who have served their sentences from voting, in the face of the constitution being amended to restore their right to vote by a referendum with overwhelming support.

    The Republican position here in Florida is that every single fine or fee has to be paid before a felon can vote, and simultaneously, the government is under no obligation to tell you how much you owe.

    3
  26. James Joyner says:

    @MarkedMan:

    Shorter James:

    Republicans: We are Calvin and the rules of Calvin-ball are what they are and you just have to take it and shut up.

    That’s almost the literal opposite of what I wrote.
    In Calvinball, the rules are made up on the fly. I’m arguing for following the rules agreed to ahead of the game. And, at the same time, arguing that rules that are shown to be demonstrably unfair should be changed in time for the next game.

  27. Not the IT Dept. says:

    No, James, it’s not the “literal opposite of what [you] wrote”. And if you don’t see that, then we can.

    8
  28. There’s great evidence here of epistemic bubbles all around. For instance, I do not recall hearing about the selective recount issue at all. I did hear about “hanging chad” but I didn’t track that to any great extent.

    As it turns out, Florida election law allows candidates to request manual recounts on a county-by-county basis. Gore’s campaign chose counties it thought favorable as allowed by law. Which was why I didn’t hear much about it, I guess.

    The Bush campaign could have countered with recounts in R-leaning counties, but instead, they tried to stop votes from being counted. This is my biggest problem.

    And yes, the Republicans in this case were on the side of “we must not count votes”. That is not a good road to be on.

    As an amusing sidelight, my own precinct used punch cards up to that election, but not after it.

    16
  29. OzarkHillbilly says:

    “Conservatism consists of exactly one proposition …There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.”

    -Frank Wilhoit

    12
  30. An Interested Party says:

    (even through legitimate ways)??? They might be legal, even constitutional, but it takes more than that to confer legitimacy.

    Does it? These days it seems like the only thing that stops legitimacy in politics is to lose elections…otherwise, just about anything goes…

    @mattbernius: If the Dems are able to take the White House and the Senate, they can use egregious decisions, like this one by Kavanaugh, as the reason why SCOTUS needs to be expanded…

  31. Mike in Arlington says:

    @James Joyner: The problem is when a scenario occurs that the rules didn’t contemplate.

    It seems that what’s also needed is a set of goals and structure to guide decisions in those circumstances. For example, decisions should be based on counting as many cast votes as possible, including where it’s possible to determine a voter’s intent.

    Also, something that aims for fairness, not partisan advantage.

    However, we’re living in a time when more votes is assumed to benefit democrats (something I don’t think is always true, but there you go).

    Of course, the sticking point is that I (and presumably other liberals) believe that counting as many valid votes as possible (while balancing concerns like cost, the potential/threat of fraud, and timeliness) is “fair” while others believe that opens the door to fraud (I suspect that at least a little part of this is because they can’t understand that their position is unpopular and therefore the only way they could possibly lose is through cheating or fraud).

    4
  32. Ugh. I forgot to close an em-tag there. Sorry about the shouting.

  33. MarkedMan says:

    @James Joyner:

    I’m arguing for following the rules agreed to ahead of the game

    James, I know you aren’t being deliberately dishonest here, but you are incredibly naive. The rules aren’t “agreed to”. Did anyone but the Republicans “agree” that huge minority counties in Texas only get one ballot box, and that poor people are free to drive 300 miles to get to it? And did the Republican judges really consider whether this was fair before they ruled in favor of their Republican compadres? Multiply this by a thousands. Republicans don’t like blacks and gays and browns and muslims and uppity women and they don’t want to change in any way to appeal for their votes so they do everything in their power to make those votes not count. Your insist that we look at every single rule and ruling in complete isolation and must accept any half assed rationale whatsoever for why this is legitimate. As I said above, when racist and liars control all branches of government they can make all kinds of nonsense legal, but decent people are under no obligation to accept this farce as legitimate.

    19
  34. al Ameda says:

    The lesson I learned from Florida 2000, is that The Court tried to put a fig leaf on their decision and get out of town before the sh*t hit the fan. What other reason impelled then to explicitly say in the Majority Opinion that this particular decision applies only to this case?

    10
  35. gVOR08 says:

    Via WIKI, from the dissent by Stevens, Souter, Ginsburg, and Breyer,

    Counting every legally cast vote cannot constitute irreparable harm […] Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.

    Hard to argue with that.

    I suppose, despite the patent absurdity of the legal reasoning (repeated a day or two ago by Kavanaugh), one could accept Bush v Gore as legitimate if looked at in isolation. Unfortunately, it seems to be just one item in a pattern. It was preceded by large scale ratfracking by the GOP Sec of State and the GOP governor, Bush’s brother. GOPs screamed about late mail-in ballots being rejected and Ds conceded military votes should be counted, although they were rejected under the letter of FL law. Since then Rs have ruled the law must be interpreted strictly, at least if doing so rejects votes. Since B v G red states have consistently and enthusiastically suppressed votes and gerrymandered. For me, the pattern of Republican malfeasance before and after B v G makes any question of the legitimacy of B v G irrelevant.

    We need a new Voting Rights Act.

    10
  36. KM says:

    In line for the last hour to enter the building for early voting – looks like another hour to go at least. The last place I’ve seen lines like this is Disney’s busy times.

    I cannot imagine the fury of voters who will get their votes tossed out due to BS, especially people who tried to avoid the line. The GOP wants to be known for that? They want to be the Party of Your Ballot Doesn’t Count? Good luck!!

    4
  37. Gustopher says:

    Election rules should not be a suicide pact for democracy.

    Where there are problems — for instance, an equal protection issue between in-person and mail-in voters — we should always err on the side of counting all legally cast ballots where the intent of the voter is clear, and of increasing access to the ballot of everyone eligible.

    I don’t know why Mr. Joyner has so much of a problem with that. We are a small-d democracy (at the moment, as the d gets smaller, we are more subject to the whining of partisans who benefit from less democracy, which I proclaim to be a emocracy!), participation of all our citizens is our strength.

    “The rules is the rules” is a defense for things like understaffing polling stations in urban areas to depress the vote there. Currently allowed under the rules, but disgusting and antidemocratic. I almost wrote un-American, but sadly it is very American.

    9
  38. Just nutha ignint cracker says:

    To the extent that the dispute was over chads that had not detached from the ballot, my take back then was the the year that Washington State used punch card ballots (I believe it was only one election, too, IICR), it was the stated responsibility of the voter to make sure that all punches were clean before filing the ballot as voted and that unreadable ballots would not be counted for the column in question. As the dispute evolved and someone made the claim that the punches were intended to have the chad remain on the card, my reaction became “well that’s stupid, but whatever.” At that point, my take was that recount was going to need continue until the issue was resolved and the Florida Legislature would need to pass emergency measures to stop the clock from “running out.” As the dispute continued, I realized that Florida–in much the same was that Congress does–was going to fail to do it’s duty and resolved myself to knowing that the dispute would last forever. But, not my circus, not my clown car, so again, whatever.

    I never had any sympathy at all for what I understood as the primary complaint–silent era geezers who were incensed at having to read the ballot. My favorite quote from a Palm Beach County geezer went something the effect that the second punch down is always the Democrat, they shouldn’t have moved it. That argument went into my First World problems that IDGAFA column.

    Inspecting for “dimpled” chads always seemed like a desperation move on the part of the Gore campaign. The ballot can’t be read? Too bad, so sad. But again, not my circus, etc.

    As it turned out, Dubya was simply the next in what a dear departed friend described as “an endless parade of dufuses, each one more hapless than the previous. I’d hoped as Obama rose to the occasion of his time in office that we were finally over that hill, but it turns out that I was wrong again. But I’m only an ignint cracker (not even a clown) in the grand circus of it all, not the ringmaster.

    2
  39. OzarkHillbilly says:

    @MarkedMan: Thank you for this.

    2
  40. SC_Birdflyte says:

    Bush’s team went into Florida with a single strategy: Get the case into Federal court, where the chances of a favorable verdict were much better. As a Florida native, I told my cousin, “It’s a pity Lawton Chiles isn’t still alive and in the Governor’s Mansion. He would have out-maneuvered them to a fare-the-well.” But we all know who was in the Governor’s Mansion then . . .

    2
  41. Raoul says:

    I agree that Gore should have sued in regards to all counties- someone gave bad advice there (Lieberman?)- as to the “rules of the game” – it is my belief that the law state that any ballot whose vote intent can be reasonably discerned would be counted. Thousands of double vote ballots for Gore and Bush for were tossed whose intent was obvious- if those had been counted Gore would have won. Double votes are votes with an X by the name and with a fill in box.

    1
  42. Hal_10000 says:

    @Modulo Myself:

    all sides knew that more people intended to vote for Gore than Bush in the state.

    All sides knew nothing of the kind. The state was called when the Republican panhandle was still voting, which may have cost Bush several hundred or thousand votes. The ballots were eventually made public and recounts were mixed at best on the results. Even if you use the most liberal standard, Gore wins by a few dozen votes. That’s not a clear intent of the public.

    How about the Republican secretary of state deliberately disenfranchising thousands of Black voters whose names bore some resemblance to that of convicted felons?

    Something ordered by a federal court because of a previous election debacle that was largely ignored by county election supervisors, that correctly identified 18600 people but was largely ignored by county supervisors because of errors and therefore allowed many of those to vote.

    Honestly, it’s been 20 years. Could you at least update your talking points?

    I found myself and still find myself on the side of James. Elections are rarely close enough for these sort of things to matter. When they are this close, you can’t run around picking the biases and errors that favor your side and pretending the biases and error against your side don’t exist. The rules were laid out in advance — automatic recount, requested recount, done.

    What’s more bothersome to me is that we still haven’t fixed many of the problems that led to this. And unless this election is a blowout, it’s going to be much worse. There’s a non-zero possibility that SCOTUS (with a judge appointed one week before the election) throws out thousands or tens of thousands of votes and gives enough swing states to Trump that he wins the EC despite losing the popular vote by seven points. And I don’t know what happens if that goes down.

    2
  43. Kathy says:

    At the time I also wondered why a technology as outdated as punch cards was being used at the dawn of the new century.

    I vaguely recall punch cards used by one of Mexico’s state lotto agencies, but that was gone by the mid-80s, replaced by cards one marked in pencil and were read by optical scanners. Those are still in use, though you can also dictate your numbers, or buy tickets online.

    1
  44. MarkedMan says:

    Josh Marshall has a total evisceration of Kavanaugh’s opinion in the Wisconsin case. I won’t link as it is behind the paywall but suffice it to say that it is everything you would expect from the angry, privileged, disdainful partisan hack he showed himself to be during his confirmation hearings. And of course, intellectually lazy, but that almost goes without saying. Is there such as thing as an intellectually rigorous Republican anymore?

    – He uses Vermont as an example of a state that made no changes to their election laws due to the pandemic when in fact Vermont made a drastic change -mailing a ballot to every citizen ahead of time
    – He consistently claims that it is somehow the norm for all states to report final results on the day of the election and anything else gives grounds for suspicion. It’s easy to make fun of Mr. Originalist somehow imagining this occurring when results literally rode hundreds of miles in a postal carriage, but it’s ridiculous even now. I can’t ever remember a year when all the states reported results by midnight. Heck, I had to cast a provisional ballot yesterday here in Baltimore and it will not be counted until the next weeks Wednesday – 8 days out. If the election were close and provisional ballots matter, that is the earliest we would have the results. That is the norm here in MD and as far as I know it has been for decades.
    – He either deliberately conflates laws requiring submission of mailed in ballots by a certain date with ones requiring ballots to be received by that date, or he conflates them due to intellectual weakness and laziness. In any case, he declares that they all mean the ballots must be received by that date regardless of what the law actually states.
    – He arbitrarily insists that the legislation setting the deadline for requesting an absentee ballot as Oct 29 doesn’t really give any indication about the intent of the legislature because “no one” could expect to request a ballot on Oct 29th and expect the mail to deliver by November 3. The other conclusion, that this date shows that it only needed to be postmarked by the 3rd, is ignored. Due to “Beer!” I suppose.
    – Conceding that some voters may be concerned that their votes won’t make it through the mail by the 3rd, he encourages them to commit potential fraud and vote again in person. (I would be willing to bet a fair amount he would uphold prison time for those who followed his advice.)

    Suffice it to say, this is type of justice we can expect from a Republican Supreme Court.

    Pack the Court! Immediately!

    10
  45. Modulo Myself says:

    @Hal_10000:

    You may want to check your talking points there, Hal. That list knocked off 12,000 people–mostly black–who weren’t felons, and that’s out of 58,000.

    The NAACP sued Florida after the election for violating the Voting Rights Act (VRA). As a result of the settlement, the company that the Florida legislature entrusted with the purge—the Boca Raton–based Database Technologies (DBT)—ran the names on its 2000 purge list using stricter criteria. The exercise turned up 12,000 voters who shouldn’t have been labeled felons. That was 22 times Bush’s 537-vote margin of victory.

    Luckily, the Bush years gave us John Roberts, who loves the right to vote so much that he got rid of the VRA.

    8
  46. DrDaveT says:

    @James Joyner:

    And, at the same time, arguing that rules that are shown to be demonstrably unfair should be changed in time for the next game.

    Where did you get the idea that there is more than one game? Do you believe in reincarnation?

  47. Paine says:

    Josh Marshall is becoming quite the firebreather as of late…

    On the drive to work this morning (rural eastern Washington State) I saw a large Trump sign along the road that someone ripped in half.

    There’s a great piece by Garrett Epps over at the Washington Monthly:

    Which brings us to September of this year—another election year, another display of banana republic partisan muscle. Before Justice Ruth Bader Ginsburg could even be buried, Trump had nominated a woman who seems likely to undo her entire legacy; and election-year rules had been reversed because—because, this time, the Republican party, which had demanded delay in 2016, now saw advantage in indecent haste.

    There was no pretense of vetting; the nominee essentially rolled her eyes at Democrats’ questions. She knew—they knew—the entire country knew—that the fix was in. She would be seated; she would be seated before the election; and she would not promise not to take us full circle, to a potential Bush v. Gore coup d’état even more disastrous than the first.

    As this vile mummery played out, I mourned—not for the first time—the idea of a Court that was property of the nation, not of party; that sought justice, not ideological advantage; that earned a nation’s respect, not its gaping horror.

    We shall not look upon its like again.

    3
  48. wr says:

    @Hal_10000: “Honestly, it’s been 20 years. Could you at least update your talking points?”

    Oh, sorry, have we passed the statute of limitations for racist disenfranchisement? Sorry if I brought up something you’d thought successfully swept under the rug.

    7
  49. Teve says:

    @MarkedMan: the earliest a state is required to certify the election is November 5, in the case of Delaware. The latest? Some jurisdictions don’t have a deadline. The latest set deadline is California on 12/11/2020. Justice Boof has graduated to smoking crack. PJ and Squee need to intervene.

    3
  50. Teve says:

    @wr:

    If a person can be aware of voters having to wait in line for sometimes 11 hours to vote, and deny that voter suppression is happening, then, well, I don’t argue. I just minimize time spent in their company.

    3
  51. Gustopher says:

    @Hal_10000:

    I found myself and still find myself on the side of James. Elections are rarely close enough for these sort of things to matter. When they are this close, you can’t run around picking the biases and errors that favor your side and pretending the biases and error against your side don’t exist

    Pick the biases that maximize legally cast votes with clear voter intent counting.

    That’s not a crazy standard. It’s not an undivinable standard. Its not an unattainable standard. It’s why military absentee ballots that arrived late in Florida in 2000 were counted, and should have been counted, even if they might have helped the evil man. Many didn’t arrive in time and lacked postmarks from the far away places they were mailed from, but votes matter. Democracy matters.

    And it’s why everyone involved in the Brooks Brothers Riot should be beaten to death and had their bodies fed to alligators in the swamps of the Florida keys. Democracy is worth that. Disrupting legal vote counting should be a crime.

    Also besmirching the good name of Brooks Brothers.

    4
  52. Gustopher says:

    @Teve: I really want to find a way to make white voters wait as long as black voters. Some insane queue that only lets people out when they have waited the median wait time of the of the slowest precinct.

    Or just give everyone who waits more than 3 hours an extra vote — but that runs the risks of creating equally terrible incentives as the current system.

  53. Kathy says:

    About voter intent, in the 2006 election in Mexico there were a fair number of recounts. Paper ballots have the logos of the party or coalition, with the candidate’s name under them. You’re supposed to mark your choice by drawing an X over the party/coalition/candidate you want to vote for.

    A photo circulated of a ballot for president, with a smiley face drawn over a logo and name, rather than an X. There was much debate whether that should count as a vote for that candidate or not, whether it was an intention to vote or the voter was mocking the process.

    The ballots are completely anonymous. They have a serial number, but this is not matched to a specific voter, nor are ballots signed by voters in any way. So there’s no way to look for the corresponding two ballots for senator and deputy (separate ballots for every office voted on). As far as I know, no other smiley faces were found from that voting location.

    1
  54. Rick DeMent says:

    @mattbernius:

    That doesn’t fill me with a great deal of faith to have them “call strikes and balls” while making decisions about a number of election issues that will be coming to over the next few weeks.

    I think we need to retire the balls and strikes claim forever. I can call balls and strikes but at the end of the day I get to decide how big the strike zone is to spare me the idea this is an objective analysis.

    Interpreting the Constitution is deciding how big the strike zone is. It’s not objective and when you start to go into “originalisum” the whole thing goes off the rials because the finders didn’t agree on what every provision meant.