Reliving Bush v. Gore

We'll hear Argument Now at number 00949, George W.

Bush and Richard Cheney versus Albert Gore et al.

Hey everyone, this is Leon from Fiasco and Slowburn.

This week, in honor of the election, we are rerunning the very first episode of 5-4, Bush v.

Gore.

But first, Peter, Rhiannon, and Michael are talking about the recent court cases over mail-in voting and what they tell us about how this election will go.

Last night, the Supreme Court ruled Wisconsin cannot count Melden votes received after Election Day.

North Carolina can count ballots up to nine days after the election if they are clearly postmarked by November 3rd.

In Pennsylvania, the decision is trickier, allowing ballots received by November 6th to be counted for now, but the court made clear they could be disputed later.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to a special edition of 5-4.

I am Peter.

I'm here with Michael.

Hey, everybody.

Henry Annan.

Hello.

Happy Election Day.

Yay.

Today we are re-releasing our very first episode, Bush v.

Gore,

which we think might be of some relevance.

We chose Bush v.

Gore as our first case because it is the court at its most overtly political, but it was also a seminal point in American history because it made clear what control of the court could accomplish, that the court in many ways sits above the other branches of government.

Not only can it regulate Congress and regulate the president, but it can determine who sits in Congress and who sits in the Oval Office.

And Bush v.

Gore became a tipping point for conservatives who internalized that lesson and used it to hasten their campaign to control the courts, a campaign that it has, for all intents and purposes, won.

The election that is about to unfold over the course of either one day or several months will

be the reflection of a struggle for power that has occurred primarily over the course of the past 20 years in the wake of Bush V.

Gore and is culminating right now.

Yeah.

So we recorded this a few days before the election.

I, on on the morning of Election Day, will be taking 40 Xanax,

and I will either die or wake up the next day in a hospital, either of which is preferable in my view to just experiencing Election Day as it happens.

Are you guys going to work on Election Day or the day after?

As hard as I can, Rhiannon, like I do every day.

Woo, that response was quick.

Before we play Bush v.

Gore for you, we want to talk a little bit about what's happening in the courts now with regard to the election because a lot of shit has gone down.

And we can talk about a little bit of it.

And almost certainly more will have happened by the time you're listening to this.

And all of these developments may determine whether we are about to live through Bush v.

Gore redux and how it would go if we did.

But we can cover a bunch of ground here.

Amy Coney Barrett, now on the Supreme Court.

Amy, we salute you.

Look at her go.

Rags to riches.

Who could have envisioned this for her when she was simply the daughter of a shell oil lawyer?

I know.

Only in America, baby.

Yeah.

So let's talk about a couple developments in a couple important states.

Pennsylvania.

We can start there.

The Pennsylvania Supreme Court held a few weeks ago now that the state constitution mandated an extension of the deadline for mail-in ballots to be received to three days after the election.

Not when they are mailed, but when they are received.

And Republicans, furious, of course, because Democrats are the ones that mail in their ballots.

So they tried to stay that decision, and the Supreme Court refused to do so in a 4-4 deadlock a couple of weeks ago.

Republicans went back to the court the following week, hoping that Amy Coney Barrett would tip the scales in their favor, but she did not participate.

She indicated that she was not familiar with the briefs, so she could not weigh in.

Right.

So the Pennsylvania legislature said they are not going to extend the deadline for mail-in voting.

But the state Supreme Court in Pennsylvania stepped in and said, no, actually, our state constitution mandates that we extend the deadline for the - given all the mail delays that are going on right now, which are real and documented.

Yeah.

But it actually might not end there.

Justice Alito wrote separately in that 4-4 split decision to say that, you know, to him, it's unfortunate that they couldn't make a decision right then, but he touched on how it could be open for litigation after Election Day,

which would be

obviously that's nuts.

Like, how do you litigate which ballots can be counted after they had already been counted?

Well, the Republicans are asking that ballots that come in after Election Day in Pennsylvania and North Carolina, which had a similar case, that those ballots sort of be kept separately from the other ballots.

And that allows the Supreme Court potentially in days or weeks after the election to step in and to say, no, actually, you have to throw those out.

Yeah.

The real notable development here is that it appears that at the very least, there are four justices, Alito, Gorzich, Thomas, Kavanaugh,

who are gearing themselves up to maybe toss out every ballot that that arrives after Election Day.

Yeah.

And what might happen here is very directly related to Bush v.

Gore, in large part because there is a concurrence in Bush v.

Gore, authored by then Chief Justice William Rehnquist, and joined by current Justice Clarence Thomas and also the very dead Antonin Scalia.

The Constitution gives state legislatures the right to sort of handle elections.

So what the concurrence, Rehnquist concurrence said was, what that means is that if a state Supreme Court interprets those rules in such a way that is too distant from what the state legislature says, the federal courts can step in and say, nope, nope, state Supreme Court is wrong, which was considered a fringe position because

federal courts telling state courts that they are interpreting their own state laws incorrectly is something that our federalist system of government sort of frowns upon.

It's literally something you learn first year law school.

That's on like every bar exam.

This is just like outside the bounds of the Supreme Court and federal courts in general jurisdiction.

Yeah.

Yeah.

And, you know, this is, I think, what a lot of people are thinking will be the Republicans' primary tactic in Pennsylvania because the Pennsylvania Supreme Court seems to be tilting left on voting rights issues.

So the Supreme Court has sort of positioned itself so that it can invalidate the state courts on state laws, which again is just absolutely fucking unprecedented, especially when you think about how many times you've heard from conservatives over the years about the importance of state rights and shit like that.

Trevor Burrus, Jr.: Yeah, and we didn't specifically talk about the Rehnquist concurrence in our Bush v.

Gore episode.

And we didn't talk about it because it wasn't actually part of the official decision.

That wasn't the court's holding.

And as upsetting as it is that in 2000, the court intervened to stop Florida from continuing to recount those ballots.

This concurrence by Rehnquist is even more extreme.

The Bush v.

Gore decision is written in a way that says, like, hey, this isn't precedent.

This is a ruling that applies just to this election, just to this case right now because of extraordinary circumstances, supposedly.

But Rehnquist's concurrence actually says we should be giving state legislatures a special role in deciding how to run elections and actually like an exclusive role in deciding how to run their elections.

And courts can't do jackshit about it, even if the state legislature's rules are actually disenfranchising voters.

Yeah.

All of this was made much more pertinent when Justice Kavanaugh in a separate case, a case about Wisconsin, noted in a concurrence that he supported the Rehnquist concurrence in Bush v.

Gore, that he agreed with its reasoning, which just led to all the blood draining from every reasonable human being's face all at once, all across the country.

Michael, do you want to talk about the Wisconsin case a little bit?

Sure.

The Wisconsin case is one where there's like a little more clear, normal federal hook.

In this case, the deadline being extended was being extended by a federal court based on federal law.

So this was like a normal situation where the Supreme Court could, you know, intervene on its normal appellate grounds, and it doesn't need a special

excuse to come in here.

The reason they belong there is pretty clear.

So Kavanaugh going out of his way to cite this concurrence, it seems to be signaling very loudly to the Republican Party, to voters writ large, everyone that like, hey, we are ready to step in

to help Donald Trump win this election.

That's the, I think, the big takeaway from Wisconsin.

Yeah.

And it's worth noting too, I think, that even John Roberts thought that Kavanaugh's sighting of Rehnquist was too extreme Roberts specifically wrote that he disagreed with Kavanaugh but that doesn't change the fact that the court here is obviously sending the message that once Justice Barrett is casting her vote in these cases, there will likely be five justices ready to take the side of conservatives who are arguing for, you know, curtailing extended deadlines and curbside voting and anything else that might make voting more accessible.

Right.

You know, when we say this is like signaling to

other people about the court's willingness to intervene, that's not abstract.

For example, in Minnesota right now, a lower federal court used this same logic to change the rules of an election.

five days before the election takes place.

This is a federal appellate court relying on the Bush v.

Gore concurrence and that same logic that Kavanaugh endorsed and that we have seen explained by other conservatives to say, look, you can't extend this deadline for receipt of absentee ballots.

This is pretty outrageous.

For one thing, this is not Supreme Court precedent.

This was a concurrence.

This wasn't a controlling opinion.

We're talking about a few days before the election.

You can imagine if you are a voter in Minnesota and your understanding is that you can mail your ballot up to Election Day five days before the election, that changing, you might already be too late.

If you put it in the mailbox tomorrow after learning about this ruling, your ballot might still arrive late.

And so people who in good faith relied upon laws that had been in place for weeks now might be disenfranchised by this ruling.

Yeah.

Another case we should mention was sort of the big news of the weekend out of Texas.

That one is about curbside voting or drop-off ballots.

In short, the Republican Party was saying that the conditions for drop-off voting hadn't been met under Texas election law.

But what really makes it crazy is that they weren't asking to stop curbside voting.

They were asking to throw out all of the ballots that had been legally cast by drop-off or curbside voting, totaling something like 117,000.

Just unmitigated fascism, just a completely wild ask.

And more conceptually, one thing that has been prominent in a lot of the pre-election cases is that lower courts will step in and say, no, no, like we're going to take this action to sort of protect the integrity of the election.

The Supreme Court has struck them down on the basis of what's called the Purcell principle, based on this case from 2006, I think it was, Purcell v.

Gonzalez.

The basic principle is that courts shouldn't mess with elections at the last minute because it's confusing.

So basically, in 2006, the Supreme Court sort of says that offhand.

Generally speaking, we should not be intervening in elections at the last moment because it creates confusion for voters.

And the Supreme Court and federal appellate courts generally have taken that sort of very vague general statement and used it to just slap down all sorts of attempts by federal courts to make our elections more fair and accessible.

Right.

And like, I don't want to get like too into the weeds on Purcell, but I think like an example of how much this is bullshit is that the justification for Purcell, this idea that courts should be wary about stepping into elections late in the game, is that changing the rules on the eve of the election could confuse voters and lead to people not understanding when or how they can appropriately vote and effectively prevent them from voting.

So one principle you can draw from that is federal courts should be wary about stepping into elections late in the game.

But another principle you could draw from that, just as logically, is that courts should be concerned about making sure as many people can legally vote as possible.

But that second consideration almost never actually drives any of the conservative action here.

And what you see is them using the Purcell principle to justify rulings that will make it harder to vote and make it likely that fewer people will vote, which goes directly in the face of what Purcell is arguing, which is, hey, we should make sure that everybody who can vote can vote.

Yeah.

It's important to sort of know the boundaries here.

What's motivating this?

There are rules in the Constitution that grant the states the power to run their own elections.

And Republicans, conservatives have taken that concept and basically said, well, then states can suppress the vote as much as they deem fit.

Right.

And ignored the other side of this, which is that certainly the Constitution is understood to protect the right to vote, at least in some form, right?

The court held in the 60s that there was a one-man, one-vote principle.

In the Wisconsin case, Elena Kagan absolutely dismantled the conservatives in her dissent, which was some of the best work of her career, essentially by highlighting the stakes in terms of the protection of the ostensible right to vote.

You know, we've talked many, many, many times about how the conservative project in this country is predicated on the suppression of the will of the majority in this country.

You're listening to this on election day or shortly after.

If there is a close election, what that actually means is that there is a vast majority in support of Joe Biden frame.

Yeah, yeah, I think that's exactly right.

And, you know, when we first started the podcast, because Bush v.

Gore was our first episode, you know, I think we spent a lot of time sort of framing it and framing our thesis of the podcast as like, hey, the court isn't so objective as it's taught in law school, as we talk about it, you know, sort of in general discourse.

But I think, you know, now, after we've done so many episodes of the podcast, if you are listening to this on election day or shortly thereafter, I want people to be thinking about like, this is how the conservative party, the Republicans, this is how they operate.

This is their core values.

It's suppress the vote, suppress individual rights, ensure legislative wins and long-term power through their version of court packing, which they've done over the past few decades.

You know, and just realizing that this is a minority party that has been in charge through myth-making about the Constitution, about our founding, about what America is.

And I just want people to sort of have that in the back of their head, maybe, when we're talking about not just Bush v.

Gore, but all of these cases and what that means for how the party wants to govern people.

Right, right.

The other thing that we can't forget is that the Supreme Court currently is full of the same people who were working for the Bush side during Bush v.

Gore.

Chief Justice Roberts was an advisor to Jeb Bush, Justice Kavanaugh, and now Justice Coney Barrett.

They actually worked for the George W.

Bush legal team.

And, you know, it's true that Justice Thomas is the only one who is still on the court who cast a majority vote in 2000.

But John Roberts, Brett Kavanaugh, and now Amy Coney Barrett, they're all part of the Bush campaign's legal team.

And now they're sitting on the court.

And so what does that say about what they are ready to do in a potential, you know, Trump v.

Biden?

Right.

And if this election feels chaotic, if it feels unfair, if you are not sure who's going to win, not because you don't know who's going to get the most votes.

It seems pretty clear.

This is all sort of the culmination of living in Bush v.

Gore's shadow.

20 years of Republicans internalizing the lessons of Bush v.

Gore and Democrats not contesting it, not saying that was illegitimate and we need to think about this differently and we need to change our approach to the courts and we need to reform the courts.

And Republicans saying, this is great.

As long as we just fill the courts with people who prioritize our interests over the country, we can do whatever we want.

They can gut campaign finance rules so that their wealthy donors can pour billions of dollars into state, federal elections, getting judges confirmed.

They can gut the Voting Rights Act.

They can have judges green light gerrymandering so that Democratic elections for the state legislature in Pennsylvania don't even matter anymore or Wisconsin or North Carolina or any other number of states.

So here we are.

at the natural end point of Bush Vigor,

where the big question isn't who's going to get the most votes.

The big question is whether America's democratic institutions are going to survive an open assault from the Republican Party.

And it is an open question.

The only hope is that there's a big enough win that it can't be stolen and the Democrats have the balls to then finally, 20 years too late, do something about it.

Yeah.

Yeah.

With all that said, enjoy our re-release of Bush v.

Gore.

It sounds like we're like 10 years younger, guys.

We were babies.

Yeah.

When I started this, I just wanted to learn about the Supreme Court.

I was like, a good way would be a podcast.

So, you know, enjoy our episode.

And we'll see you in a couple days with an election reaction.

Hopefully, it's happy and slurred and just

stupid celebration.

We'll either be very celebratory drunk or I will be yoked up on amphetamines.

That's right.

And ready to hit the streets.

Uh-oh.

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Welcome to the inaugural episode of 5-4, a podcast about how much the Supreme Court sucks.

And the only Supreme Court podcast without a pending Title IX investigation.

We're We're very, very proud of that.

We are.

Each episode, we're going to dissect one of the many Supreme Court decisions that make all of our lives just a little bit worse every single day.

And today is a big one.

Bush v.

Gore, maybe the most shameless decision in Supreme Court history.

It's 2000.

You know, the 90s have been pretty good to everyone.

And you have this sort of common election archetype of the boring guy, Al Gore, versus the idiot, George W.

Bush.

And it's like, it's a very common type of election in America, and it is a huge advantage to the idiot.

That's right, yeah.

But the one thing I'll also say is that Bush was dumb in a way that now seems like very quaint, right?

Where like he would say a word wrong.

He would say strategery instead of strategy, and people were like, oh my God, can this man really be president?

And that just seems so distant in a world where we have Trump, who's just like a character you forgot about in The Sims, just wandering from room to room with like a thought bubble with a picture of a hamburger in it above his head.

Just like has never had a thought that was not a reaction to direct physical stimulus.

Nowadays I yearn for a president whose like biggest issue is that he says like nucle nuclear.

Nuclear.

Nuclear.

Nuclear.

Which by the way, that's how pretty much everyone said it, I feel like.

Like it they that was like the first time most people learned how to pronounce that word.

Yeah, people were like,

wait.

Really, we should start talking law.

What happens?

Yeah, no, before we get to the law, I want to be clear that I was on November 7th, 2000.

I was 12 years old.

I had just shaved my head.

I am in sixth or seventh grade,

Palestinian.

small little olive in suburban Texas on election night.

Did you guys do this when you were younger?

Is like you color in the map, the states, you color it blue or red for whoever it goes for.

Yep.

And so I

smoked way too much pot.

My memory is very vague.

I can't overstate how important it was to me at that time that I was a good student.

And so it fucked with me.

It traumatized me that like I had done red and then blue on Florida.

And I just thought like, you know what?

I failed this assignment.

I fucked up.

So

it was really traumatic.

Yeah, so all the major networks that night, they called Florida for Gore.

A big call to make.

CNN announces that we call Florida in the Al Gore conference.

We're going to now project an important win for Vice President Al Gore.

NBC News projects that he wins the 25 electoral votes in the state.

But then retractions started at around 10 p.m.

We now believe the state of Florida is too close to call.

That's weird.

We and most other news services had called called it for Mr.

King.

And networks start switching their calls to Bush.

Now projects George W.

Bush, the winner in Florida, and thus it appears the winner of the presidency of the United States.

And then by morning, people wake up and it's it's undecided.

If you take 25 votes away from Al Gore and put it in the undecided column, and should they break for Bush?

On November 8th, the next day, the Florida's Division of Elections say that Bush won by a really small margin.

It's like 1,700 votes, which is less than the 0.5%,

which means basically that a mandatory recount is triggered.

And by November 10th, the machine recounts have brought that lead down to like around 300 votes.

So

this is such a shit show, dude.

Right, right.

It's a fucking mess is what it is.

And Gore requests manual recounts in four counties, and the shit show just gets more intense from there.

In Palm Beach County, for example,

10,000 ballots were set aside because they recorded no vote for president at all.

In Volusha County, they record Gore receiving negative 16,000 votes.

So it's just kind of, it's like, what the fuck is that?

That turned out not to be an error.

That was just, he's not that popular in Volusha.

Even as like a child, like a teenager witnessing this, it was just like peeking under the

veil of American politics and seeing like this horrible writhing mess beneath where like everything was deeply corrupt and inaccurate and full of just like human error and dark motivations.

And like it was just the first time I think that a light had been shined on this part of the system.

And it was like deeply unsettling to everyone.

I was 18 at this time and I lived in Fort Lauderdale in Broward County, which was sort of ground zero zero for all of this.

It was one of the four counties that were supposed to do a manual recount along with Miami-Dade and a couple others.

Miami-Dade, Broward, Palm Beach, and Volusia, each with more registered Democrats.

I voted in the election, so I do not know if my vote was actually ever counted.

And there were just like bizarre protests, and

it was all anybody talked about.

And it's hard to really explain what it's like to have that be your first electoral experience.

Even before all the election shenanigans, there was like the 50,000 voters that got purged from the Florida voter rolls because, you know, they're supposedly felons, but it turns out a lot of them weren't felons, then maybe misdemeanors, maybe no crime at all, and they're all black or Hispanic.

And

one estimate says that cost Gore 5,000 votes in an election he lost by 300 votes.

Right.

Like a lot of the madness is just inevitable and organic.

And there's a lot of tension because people don't really know what's going to happen.

But some of it was just this manufactured bullshit, most famously, the quote-unquote Brooks Brothers riot.

I have a question.

What is a Brooks Brothers?

It's like a menswear store.

I knew the question immediately.

Yeah, it's just a suiting.

It's a suiting store.

Like Frank?

They make them?

No, it's just like your standard bare

mid-to-low range.

First, you go to mensware house, and then you realize that that's not nice enough for your fancy suit.

Do you actually like the way you look?

Yeah.

And then you go to Brooks Brothers to pay like $700 for a suit that some fucking idiot sells you.

And then like

the riot happens there.

Yeah, that's not.

It's not at Brooks Brothers.

The Brooks Brothers was unscathed, thankfully.

Basically what happened was in Miami-Dade, there were these 10,000 or so ballots,

under votes, right?

These ballots that hadn't recorded votes.

And we're getting close to one of the deadlines here, and Miami-Dade's concerned about being able to recount all the votes.

So they say, well, we're going to look at these 10,000 ballots.

And they kind of retire to a smaller room so they can segregate them out and start manually

assessing each ballot.

And there was a lot of concern that there would be enough votes for Gore

in this batch to change the outcome of the election.

So Republicans flew in all these like 40 to 50-year-old lawyers.

Of course, they're like almost all lawyers.

And when we say Republican, like the actual Republican Party

in D.C.

Right.

No, this is like, yeah, this is like Roger Stone, who's like, you know, a fucking Republican rat fucker back into the 70s, you know, a Nixon guy.

He's the one with the Nixon tattoo, right?

That's right.

That's correct.

Got it.

Yeah.

Dresses like

a villain in Who Framed Roger Rabbit.

It's all Republican aides and lawyers who fly in.

They're all on their Blackberries.

They're all in their fancy suits

protesting and they get violent.

They're like punching people.

Someone from the DNC is like literally assaulted.

And they succeed.

They shut down this recount like two hours after they get fucking crazy.

It's very important to note that this is the only successful riot in American history.

Every time that

someone is protesting police violence or whatever, they just get fucking wiped out with tear gas.

But fucking 50 Republican lawyers show up in Miami-Dade and they're like, well, whatever they want,

whatever they want.

Just let us know.

Let's immediately capitulate.

All they had to do was act exactly how they do with their wives and, you know, got their way.

So,

Jesus.

But, you know.

I think it's good to talk about the riot because it's a good preview for the next 20 years of Republican politics and the way they treat elections generally and Democrats and the idea that any Democratic efforts at getting votes counted are illegitimate and fraudulent, and they can take whatever means

necessary in their hands to shut that down.

All they want to do is win elections, so they don't give a shit.

And maybe the most

emblematic aspect of how,

on its face, corrupt the entire process was is Catherine Harris, who is the Florida Secretary of State.

Yep.

And in her role as the Florida Secretary of State, is responsible for oversight of the elections and the certification of the results.

But she's also the co-chair of Bush's campaign in Florida.

And if you want to understand what type of person she is, I think that she's another type of important American political archetype, which is,

you know, there are movies about where the protagonist is like a mother and the antagonist is a woman who is extremely mean

and

through sheer belligerence and force of will dominates the local PTA.

You guys know what I mean?

Yes.

And she wears a little too much makeup.

And you're like, she just seems like a force of nature, just plowing through everything in front of her to get whatever she wants and at the expense of the children.

Right.

Which is why I think this archetype was made famous a few years later.

It was Sarah Palin, who's like the real embodiment of it.

And then you had a couple others like Michelle Bachman.

But, you know, I think Catherine Harris is the first time PTA mom was like on the political scene in American and American life.

So she was the one that oversaw the purging of the voter rolls

on the grounds that they were ostensibly felons, even though maybe not.

And, you know, and she's the one that sort of starts over, like, is like in charge of the oversight of this process and was just nakedly corrupt and favoring Bush at every single step, like not even trying a little bit to hide it.

Right.

Which, I mean, you know, her boss was Bush's brother.

Yeah, that's.

And

they're both, you know, Republican.

Yeah, minor, minor point.

Governor of Florida, fucking Jeb Bush.

Jesus Christ.

All right.

At the time, Florida law required that votes be certified within seven days of the election.

So the Florida Circuit Court ruled that counties had to certify their results, but they could amend at a later date at the Secretary of State, Catherine Harris's discretion.

So, what happened was she issued criteria for these late filings, and she asked that the counties that were late in filing provide their justifications for why they were late.

That sounds fair.

Yeah.

No, well, she proceeded to reject them all outright and declare that she's going to certify the results the next day anyway.

Florida's Secretary of State, Katherine Harris, has announced that she is rejecting any further efforts.

The reasons given in their requests are insufficient to warrant waiver of the unambiguous filing deadline for

Florida legislature.

Okay.

Everything's above board, guys.

Look, it's her prerogative.

So, right.

Yep.

So, okay, the Florida Supreme Court is then like, uh, wait a minute.

Um,

they step in and they enjoin her from certifying those results, which allows the recounts to continue.

Republicans, of course, are pissed.

And

on December 8th, following a bunch of legal, more legal bullshit, the Florida Supreme Court ordered a statewide manual recount.

Yeah.

And then that's where Bush petitions the Supreme Court,

not for the first time during this case, but for the first time that really matters, I think,

to stay the recount.

And to halt the recount in this case, what you need to do is show that if it proceeded, you would be irreparably harmed, right?

Right.

Which is usually like, you know, a good example of irreparable harm is like someone is about to destroy like priceless antiques.

They literally, literally, cannot be replaced

and not subject to any monetary value.

And a court might be like, all right, don't do that because if you do it, we can't reverse it.

That's the whole point.

So the Supreme Court grants it, despite the fact that there's almost no question that there's no real irreparable harm of allowing the recount to continue.

The dissent in that case, which goes goes five to four,

Republicans versus Democrats essentially, says, how can counting every vote be irreparable harm?

And the retort from the majority is, well, no, no, that's not what we're saying.

What we're saying is that if you accidentally count illegal votes, right, non-legal votes, that would be irreparable harm.

But it doesn't make any sense at all.

You could just let...

let it continue, and then if you want to impose standards on it after the fact or scrap the whole thing, you could easily do that.

Trevor Burrus, Jr.: It's the definition of reparable harm.

You could just say no.

Actually, votes that are just dimples and not punched-out chads don't count, and they're all subtracted from the totals, and that's it.

Aaron Powell, after this happens, it seems pretty clear how the whole thing's about to shake out.

Right.

Right.

Because you still have the main case that essentially decides whether a recount will eventually continue.

That's coming up in a couple days.

And now that this has gone five to four, it seems pretty clear that that's going to go five to four, too.

Right.

So So I've been thinking about this, and the one thought I had about why issue the stay that makes the most sense to me is this.

At one point, the margin was like 1700 votes.

That came all the way down to like 320 votes or whatever.

And if you're sitting there saying, well, in four days, we're going to say this recount is a no-go.

The last thing you want is in between now and then for the results to switch.

You'd much rather be affirming a very thin lead for Bush than saying

that's exactly why they did it.

Right.

Because Bush had the lead.

So imagine you're a conservative justice who just so happens to

have one goal, and that's electing a Republican president.

Right.

What would you do?

Bush has the lead now.

You can't risk it.

You halt it right now.

And then whatever decision you eventually make will be made under the presumption that Bush is the de facto winner.

Right.

So that's sort of where their head's at with the stay, I think, pretty clearly.

You know, they need to essentially find a reason to invalidate the recount, but also need to find a reason that the recount can't be restarted or redone.

And that's kind of a problem, because if there's a problem with the recount, the obvious solution is to just fix it and count the votes.

So, how they do this, it's there are two pieces to it.

One is they talk about the Equal Protection Clause of the 14th Amendment.

And they need to do this because also these are all state laws.

And so they really don't have any place to be weighing in on this in any event.

So they need to find a federal hook.

So the federal constitution says all the citizens are guaranteed equal protection under the law.

And the Supreme Court says, well, look,

if you count votes one way in one county and you recount them another way in another county, that doesn't sound very equal to me.

Right.

Right.

Which is completely wrong and just flies in the face of how elections are done.

When we're talking about different standards being used in different counties, so during the recount, it's looking at the voter.

I guess, is it a punch card, Michael?

Like, you it depends, but there's some that were punch cards.

Right.

The Supreme Court is now looking at this and saying during this recount, different counties are applying different standards to what they're saying is a vote or is not a vote for a certain candidate.

So if something is, you know, partially punched through, or there's a hanging chad, or a dimple, there aren't uniform standards across the state for how we're counting these votes.

And the thing is,

that's how all elections are working.

Right.

But the weird thing about this is that, like, it's not the craziest argument that there are different standards for how you count votes across different counties.

Is that a violation of equal protection?

The point, though, is that if it is, then

every presidential election in U.S.

history

has been invalid under the Equal Protection Clause.

And the majority has a very kind of weird situation on their hands where they need to find this Equal Protection violation, but you need to get around the obvious implications of it, which are that all elections are invalid under the Equal Protection Clause, at least all federal elections, any federal election I could think of, maybe outside of House elections.

And how do they do that?

They do that just by putting in a paragraph that says, by the way,

this doesn't apply

anywhere else.

And so they really do this.

They say, well, this is only applicable to this election, this recount right now, doesn't apply anywhere else, which is A, absurd, and B, I don't even recognize their right to do.

I don't think that a court can say,

oh,

ignore the implications of my reasoning and just limit it to this.

If you can't tighten the reasoning so that it's only applicable to this situation, then you have to deal with the consequences of that.

And the Supreme Court, in the opinion, they give a lot of attention and energy to this idea that

you don't really have an individual right to vote in this country under the federal constitution until the state vests this power in the people.

Which is to say that the...

They actually lead off with that.

Yeah, they say the whole concept that there's no constitutional right to vote, which is true.

And it always cracks me up whenever you do it, read a voting rights case because you have to lead off with like, first of all, FYI, there's like no constitutional right to vote.

Surprise.

Like, which I know, and I think every law student knows.

But, like, I think that if you asked the average person if there is a right to vote under the Constitution, they'd be like, well, yeah, of course, that's like the building, the cornerstone of our democracy.

That's fucking.

Fucking Thomas Jefferson thought you were an idiot.

And

they were like, oh, instead,

the state will appoint

37 monocled freaks

to

decide what's best for the state.

And so the courts have jumped through hoops to sort of create what is now functionally a constitutional right to vote, but doesn't really exist in the Constitution itself.

Trevor Burrus: And part of the background for that, by the way, is that

there were talks around this time that the Florida legislature, they would just declare

Bush the winner,

the recount be damned, the Florida Supreme Court be damned, they'll just pass a law that says Bush won, and then they'll send Bush electors to the Electoral College, and that'll that'll be that.

And I think that this was a little bit of like the Supreme Court being like, well,

you know, that's constitutional if they want to do that.

Yeah.

Just letting you know.

Right.

That's what they wanted to do.

So that's how they invalidate the recount, right?

That's step one.

You find this

bullshit equal protection argument.

Right.

But now you still have this second problem, which is how do you utilize a reasoning that prevents the recount from being restarted or redone?

You know, Because that's the obvious answer to that, which is like, still let's get all the votes counted and find out who won.

Trevor Burrus, Jr.: You have a constitutional violation.

How do you fix it?

So that's the question.

And they answer it by saying you can't fix it by using this obscure safe harbor provision, which states that if your electors are submitted by December 12th, 2000, they are guaranteed to be counted by Congress.

And by the way, this opinion is issued on December 12th.

Right.

This law, this federal law,

basically says: you know, if you don't want the results of your election to be challenged

by Congress, they just need to be submitted by this date.

If you do it after that, then Congress can technically intervene, although in reality, I think they never would.

It would be bizarre.

I think it's actually important to note, too, that using this safe harbor provision, it's not essential.

It doesn't apply to everybody in the year 2024.

Most states don't even use it.

And the question here is:

does Florida care more about the safe harbor provision,

which is relevant once a century,

or about an accurate count of the votes of their constituents for president?

It's a rhetorical question when I say it.

But for this, not everyone views it like that.

Right.

And just to highlight how kind of shoddy the reasoning is in this opinion, number one, first of all, it's percurium, which I don't think we've mentioned, which means no one justice is putting his or her name on it to say, I wrote this.

The way that they would put percurium is to say that it's like the opinion of the court, but the way that I would view it as is unsigned.

Right.

That's how I would view it.

Yeah.

Exactly.

Right, exactly.

And so you automatically start to question why it's percurium.

It's because nobody wants to put their name on it.

And then number two, just the language is facially, it's ridiculous.

So there's a quote here.

It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.

Okay.

I literally wrote LOL.

Like, okay, so what

do you figure it out?

We're electing the fucking president.

I do have to say, I have some sympathy for just being like, ooh, this is too much.

I do this at work all the time, you know, where you're like, you see, there's a big project where people are like, we have this big, important goal.

And I'm like, ooh.

Wow.

I don't know about those guys.

That deadline seems way too soon.

Right.

Scalia looked at this and wants a nap.

Well, and so

the way I saw this framed, the safe harbor thing, was like, would you want to submit the actual winner's electors open to challenge versus possibly submitting the actual losers' electors not open to challenge?

And the Supreme Court was like, clearly, it's the losers' electors not open to challenge that Florida wants here.

For sure.

We're divining the will of Florida's legislators.

No need to ask the Florida Supreme Court, who has already disagreed with us.

on this very point.

On this very point.

I mean, it's the whole thing is treating the convenience of the safe harbor provision, right, which like protects the integrity of the state's electors or some stupid shit that hasn't mattered in 100 years like that,

as more important than the constitutional guarantee of equal protection.

Right.

Now, the reason they're doing this is because they don't actually care about the constitutional guarantee of equal protection.

They don't think it's an act of violation of equal protection.

They just are, again,

like just twisting it every way they can to make sure that A, Bush wins, and B, there's no way, you know, that it can be like changed or reversed or anything, right?

Right.

I mean, they're saying that they understand Florida law better than the Florida Supreme Court.

Right.

They're saying all types of shit like that.

And the other thing about this is that they're saying, by the way, there's no

time for a recount, right?

We're out of time.

But they just stayed the fucking recount three days before.

Right.

So they're like, all right, first of all, you have to stop.

And then three days later, they're like, oh my God, you're out of time.

Oh,

yeah.

What the hell?

Holy shit, guys.

Did you guys know that there was, you were out of time?

I, like, I was looking at my watch, and then I realized you're out of time as we're writing this.

It's crazy.

Anyway, good luck.

Good luck in the next election, motherfuckers.

It's just, it's so blatant.

It makes me so angry.

It's one of the, it's, it's incredibly brazen.

Yeah, I think a big takeaway is that like the Supreme Court doesn't have to be doing this at all.

In elections, states and localities are setting these standards all the time.

They're working through it.

Florida has this recount problem.

They're setting standards.

The Florida Supreme Court is working on it.

The legislature is into it.

And then the U.S.

Supreme Court comes in here and says, no, just fucking stop.

Right.

The Florida Supreme Court gave some pretty clear direction based on the Florida Constitution that, like, they wanted the votes counted.

And they said that's what the Florida Constitution called for.

And this is all state law.

The mechanics of their elections, it's very complicated.

And it's not obvious why the Supreme Court is butting in here.

Well, it's obvious,

it is obvious.

It's political, right?

It's not obvious what the actual reason would be if you were to violate a real one.

Legally obvious, but politically, it's painfully obvious.

And the petition from Bush's lawyers comes first to Justice Kennedy, right?

He's the one that brings it to conference.

That sounds like a section of the Wikipedia that you read that I didn't write.

Let a referee go for it.

Kennedy is the one who brings it to conference.

Justices like Anton and Scalia think, yes, the Supreme Court has to step in here.

And, you know, justices like Stephen.

He wants to so bad.

Imagine Scalia when it first became clear that they had the option of intervening.

The fucking sheer joy.

Raging boner for this case.

Raging three interruptions.

And here's the thing is that even if you try to be generous to these guys and be like, well, look, maybe they're just going on their intuitions.

Like, it's totally backwards.

All the justices who want to weigh in here and overrule the Florida courts, generally, their intuitions are that the federal court should stay out of state business.

Yes.

Right?

That's their.

Yeah, that's the other thing is, like, the conservatives on the court constantly, like, when the federal government's trying to expand minority rights or something, the conservatives will step in and be like, ooh, ooh, ooh, state issue.

Sorry.

Like, we would love to.

Right.

This is actually all the states.

Sorry, you can't fuck around with this at all because you're the feds.

And then here, all of a sudden, they have zero respect.

I'm sympathetic to your argument that black people are full people, but

unfortunately, South Carolina is not.

Right.

And I don't think it's our place.

I don't think so.

But here, we have very strong opinions on whether or not a dimpled ballot versus a half-hanging Chad ballot should be counted.

And so I just, I want to say, like, we're sitting here and we're sort of divining ill intent from the strained reasoning here.

And I don't think that's hard.

I don't think it's a stretch.

I think it's like blatantly obvious.

But I also want to say, like, I know someone who clerked on the Supreme Court and at the end of La-di-da, Michael, la-di-da.

Oh, look who has friends in high cases.

I've got a friend who is

an AVP at Goldman.

Wow.

I don't really.

I don't know.

I have a friend on death row.

Well, we all have friends.

Why do you have to drag drag us down?

Good for us.

So,

my friend

told me that they spent some time looking at old memos, sort of digging through the archives to see what people were saying in private about this.

And there were two justices who were just...

not even hiding in their personal memos and in their intra-office communications that all they were trying to do here was affirm that Bush won, and they didn't care about the legal reasoning and how they got there.

And they're protected in this because there's a very strong sort of cone of silence around what happens in the Supreme Court among the clerks.

And so, this is being told to me in confidence by someone who could clearly write this, and it would be maybe the most important and impactful thing they could do in their career would be to publish copies of these memos, right?

And sort of shine a light on.

Yeah, but I'm sure that they're doing great at the the Brennan Center.

Not at the Brennan Center.

I think it's a really important point, Michael, that the secrecy and the ivory.

I'm going to joke that

the secrecy and the ivory tower bullshit, that's not because it makes the law better, right?

It's because it serves powerful people and their interests and keeping their jobs and excelling and making money.

Right.

And so that's why you need to hear from three dirtbags on a podcast that the Supreme Court's all bullshit is because the people who practice before the Supreme Court and the people who clerk for the Supreme Court and the people who spend their life writing law review articles about the, you know, all the implications of the writings of the Supreme Court all benefit from its perceived legitimacy.

They're tied up in it.

Yeah.

But the last main paragraph of this opinion is so fucking offensive because it is that lie.

It is that like public image that they want about what the court does.

So, quote: None are more conscious of the vital limits on judicial authority than than are the members of this court, and none stand more in admiration of the Constitution's design to leave the selection of the president to the people, through their legislatures, and to the political sphere.

Fuck you guys.

Like you judges.

Today, the top gore lawyer says the legal battle is over.

We've had an appeal.

We've taken that appeal.

There is no appeal from the United States Supreme Court.

Let's try to envision what would have happened if the Supreme Court doesn't shut down the recount, right?

Right.

It's hard to game out out because there are so many different scenarios, right?

Is there like the full statewide manual recount?

Is something more

modest settled on, right?

Like just under votes and overvotes counted?

Is it just certain counties?

Like, do they go revert back to that?

I mean, what if the Supreme Court never intervened in the first place because they had cast doubt on the Florida Supreme Court

a month earlier in a separate decision?

And that sort of sent things in a weird direction.

But

there are scenarios where a limited recount gives the election to Gore, or a full recount maybe affirms that Bush won on a very narrow vote.

But again, if this all happens after the safe harbor, maybe Congress questions it.

Maybe the Florida legislature goes through with their plan of affirming Bush is the winner regardless of the vote, and that's it.

It's hard.

But that's this discrepancy, is like what's important, right?

You have uncertainty on one hand and certainty on the other, right?

You have the certainty of Bush winning if you halt the recount, and you have uncertainty on the other hand.

And there are like a dozen procedural things that could have happened if the recount continued.

There could have been more court cases, different court cases,

more narrow court cases.

But the bottom line is that there would have been some risk of Agore winning.

Right.

And they couldn't tolerate it.

Right.

They couldn't tolerate it.

Right.

So I think the,

you know, part of the takeaway here is is that Bush v.

Gore was not when the Supreme Court became political.

The court has always been driven by ideology, politics, and power.

But Bush v.

Gore exposed just how shallow and partisan the court's politics actually are and stripped away the veneer of impartiality and high-mindedness that the court sort of hides behind.

And anyone who thinks after Bush v.

Gore that the court functions as like an independent body separate from politics or that it even could function function like that theoretically, is just a rube, just a complete fucking sucker.

Right.

We should talk about the alternate world we would all live in.

Can you fucking imagine?

You know, there's been tons of research into what would have happened, right, if you if you like imagine a fair election.

And it's extremely hard to say because there's, there's so much bullshit going on.

Like you could hold everything else constant, and if the ballots in Palm Beach County are designed different, Al Gore wins.

Right.

That's just like without controversy at this point.

And the question is: you know what?

How different is the world we live in?

Obviously, we're 20 years out.

It's hard to say.

But the one really significant thing is that Al Gore was the first presidential candidate, I think, to ever really significantly talk about global warming.

Right.

Which at the time was like a punchline, right?

Right.

Just like, oh my God, this, this fuck, he's obsessed with this.

Like, the world's great.

What are you talking about, Al?

You fucking nerd, you boring nerd.

Let's see what the idiot has to say about this.

Right.

So, you know, do I think he could have like passed significant global warming legislation?

Like what would have been necessary at the time?

No.

No, probably not.

But it would have been on the political radar 15 years at least before it was.

Right.

The other thing is that, you know, Bush gets elected and then within a year

plans and orchestrates the 9-11 attacks.

All right, so we want to end this episode on

a little more of a positive note.

And I think a good way to do it is

the five majority justices in this case were Rehnquist, Scalia, Thomas, O'Connor,

and Kennedy.

And Kennedy.

And of those,

Rehnquist and Scalia are dead.

That's right.

The two that I said may have been, you know.

The two worst.

I think that the two overall worst, like in terms of if you just had to measure out like who's a worse human being, they're the two worst.

They are.

You can make the argument that Kennedy's been more damaging because

he's got this wishy-washy bullshit kind of vibe about him.

Yeah.

But I think in reality, if we're all being honest.

These two guys have had almost immeasurable harm that they've inflicted on the country.

Yeah, talk about irreparable.

Yeah, that's right.

That's right.

Cut that.

No, it's true, though.

If you talk about modern era Supreme Court, like after everyone agreed that minorities are human beings, these two guys are the worst.

There's no question.

Well, and Rehnquist.

Also, I don't think they believe that.

Right.

Rehnquist in particular is like a relic of before that era, right?

He was like famously a segregationist who was not on board with Brown v.

Board

when he was a clerk at the Supreme Court level.

Rehnquist, he's an all-time piece of shit.

Yes.

But he's dead.

Can't emphasize it enough.

Cannot hit that point.

We're going to circle back a few times over the course of the next several episodes about how dead William Rehnquist is.

And, you know, finally, 20 years too late, the Democrats are talking about Supreme Court reform.

So who knows, maybe 20 years from now, we'll actually have

something resembling sanity with this.

Yeah,

I think there is a chance.

Yeah, well,

don't have anything.

No, it's an outside shot.

It's an outside shot for sure.

I'm not bullish on it.

I think that the Kavanaugh experience was like

sort of an awakening for Democrats in some regard.

Whether or not they actually do anything as a result is a completely different thing.

But I think several, like a lot of prominent, moderate establishment Democrats were able to look at that and think like this is sort of naked power play.

Right.

And

the only question is whether they are able to eventually reckon with the idea that the proper response is naked power play

and not trying to play semantic games or whatever and nominate Merrick Garland.

Right.

All right.

The next episode is going to be, I think, a bit of a banger.

It's Citizens United v FEC.

And

maybe, I think maybe the most symbolically important case of the past decade or so.

Yeah.

And something that has sort of become the embodiment of corruption and the distinct level of inequality that we see

in this modern political era.

Yeah, plenty of stuff to get really pissed off about, in that opinion.

Yeah.

It's a terrible case.

Also, one of those cases that law students are told is actually quite reasonable, but then when you read it, you're like, no, dude.

No way.

It's so fucking bad.

It's so fucking good.

It's really bad.

I'm looking forward to taking a big shit on it.

Yeah.

5-4 is presented by Westwood One and Prologue Projects.

This episode was produced by Katya Kunkova with editorial oversight by Leon Nayfok and Andrew Parsons.

We want to give a special thanks to James on Twitter at Buffalocialism for the inspiration for our name.

Yes.

Yeah.

Thanks, James.

Thanks, James.

Baby, James.

From the Westwood One Podcast Network.