Hanging Chads & High Stakes: Revisiting Bush v. Gore 25 Years Later

Speaker 1 Tu mereces fruits favorites for menos. Ja sell na Big Mac, McNuggets, or a sausage, egg and cheese, McCriddles, pie tuentojo como un meo ya hora.
Oof, nava comodarto un gustaso por tam poco.

Speaker 1 Los extra value meals están del regreso.

Speaker 2 Gana por la mañana con el extra value meal, sausage, mc, muffin with egg, hash browns, yun cafe agiente pequeño por solos se dolaris. Bara ba ba ba.
Preses y participación pueden varía.

Speaker 2 Los prees de la promosión pueden en serminores que los de las comidas.

Speaker 3 This week marked the 25th anniversary of the most consequential election case in American history: the pivotal Bush v. Gore Supreme Court decision.

Speaker 3 On December 12th, 2000, the High Court ended a controversial recount and allowed Florida's certified vote to stand, giving the electoral victory to George W. Bush.

Speaker 4 In this episode, we speak with the man who headed up the recount legal battle for the Bush campaign to discuss the chaotic weeks between the election and the court's ruling and how the political landscape has changed dramatically since.

Speaker 4 I'm Daily Wire Executive Editor John Bickley with Georgia Howe. This is a weekend edition of Morning Wire.

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Speaker 4 Joining us now on the 25th anniversary of the pivotal Bush versus Gore Supreme Court case is Ben Ginsberg, counsel who represented the Bush campaign in that case.

Speaker 4 Ben, thank you so much for coming on the show.

Speaker 6 Thanks so much for having me.

Speaker 4 So we have this 25th anniversary of a moment I remember very well. It stretched on for weeks, the Bush versus Gore crazy election outcome.
First, for our listeners' sake, take us back.

Speaker 4 What was this case all about?

Speaker 6 Well, the case was all about something nobody ever saw coming, which was a presidential election

Speaker 6 decided on election night by 1,700 votes out of 6 million casts in an outcome-determinative state. I mean, what are the odds? Right, and it stretched on.

Speaker 4 There was so much buildup, so many camera crews surging down to Florida. How long did this case last again?

Speaker 6 It was 36 days

Speaker 6 into this point in December, right from Election Day.

Speaker 6 I mean, we scrambled troops on Election Election Night and had folks in place bright and early on the Wednesday morning after the election in Tallahassee.

Speaker 6 There were more than 40 individual court cases filed up and down to the U.S. Supreme Court twice, up and down to the Florida Supreme Court twice.

Speaker 6 Many federal and state local courts, district courts, appellate courts involved in the whole process.

Speaker 6 We had over 800 people on the ground during that period, and the Gore campaign had a similar number.

Speaker 4 And what was your particular role? What did you oversee? What were you responsible for in this process?

Speaker 6 I was national counsel to the Bush-Cheney campaign and had a lot of experience from my work as counsel to the Republican National Committee, Congressional Committee, and Senatorial Committee. So

Speaker 6 I was sort of in a role of coordinating lawyers, coordinating people in the counting houses,

Speaker 6 by and large, a bridge between

Speaker 6 legal and what you have to do non-legally in a recount to make it work. So that sort of odd combination of things that I had done in my previous career just seemed to all coincide with Florida 2000.

Speaker 4 In relation to the other things that you had done in your career to this point, was this the most complicated season for you? Was there anything that compared to this sort of wild sequence of events?

Speaker 6 No, absolutely nothing compares to this. It was something that was totally unanticipated.
I mean, the day before

Speaker 6 the election, people stopped calling lawyers.

Speaker 6 So I took the legal crew in Austin out to lunch at our favorite Dive Mexican restaurant, and we started talking about lawyers' fantasies, which is not an oxymoron, by the way.

Speaker 6 And we said, arguing a case in the Supreme Court for your candidate after a recount would be the ultimate fantasy.

Speaker 6 And having done many recounts beforehand, I kind of pounded my fist on the table and said, ha, there'll never be any such thing as a presidential recount, just too many odd events. So

Speaker 6 that gives you a flavor for how unique.

Speaker 4 we all the situation we all found ourselves in so what was the legal strategy like for this How did you and your team prepare and what were your goals?

Speaker 6 Well, I think preparation is a kind word for what happens in a situation like this. We had all the laws from Florida polled as we did for all the states in the country.

Speaker 6 And there are certain procedures that you go through for any recount.

Speaker 6 But because this was such a small number of votes in just one outcome determinative state, there really was was no playbook for it.

Speaker 6 And I think that, you know, I've talked to the folks who were working for the Gora campaign and nobody had a real plan, an idea how this would unfold. There just was no precedent for it.

Speaker 6 But we were ahead in the count on election night, in the automatic recount after the election, in all the tabulations. So our

Speaker 6 belief was that you only have to win an election in America by 50% plus one so that we had won. And we believed that the counts were valid.
The Gore campaign, as

Speaker 6 I think, the side behind,

Speaker 6 wants to sort of stretch the rules a little bit to allow more ballots in, because that's the way a candidate who's behind might win a recount.

Speaker 6 So

Speaker 6 in Florida, the infamous punch card ballots existed. And on every

Speaker 6 punch card machine is an instruction that says for your vote to count, you have to punch it all the way through.

Speaker 6 And so we've thought that our job was to uphold that fashion, that statement in Florida law

Speaker 6 and to

Speaker 6 once the recounts were ordered and started, to point out all the variations in the way similarly counted ballots were being counted.

Speaker 4 Were you concerned about fraud, cheating shenanigans even legally during the process? How much did that play into how you handled this situation?

Speaker 6 We had a pretty good idea of the voter rolls, and there were no complaints about the accuracy of the voter rolls.

Speaker 6 We were much more concerned about very subjective politically based judgments on the counting of ballots that might be deemed questionable.

Speaker 6 I mean, the Democrats, when they came in after the election, asked for the recounting of ballots in only four counties, and they were their four best counties in the state.

Speaker 6 And recount lawyers have sort of an article of faith that says good gets better and bad gets worse.

Speaker 6 So

Speaker 6 we thought from the beginning that their notion of count all the votes really meant count only the votes that were for their candidate. So our real concern was

Speaker 6 similar ballots being counted differently depending on if they went for Governor Bush and Al Gore. And those counts were being made by partisan officials in those four counties.

Speaker 6 So I don't know how you want to put a general rubric on that, but that concern of disparate treatment was really what we worried about the most.

Speaker 4 And remind us, how did it turn out? You said 1,700 votes were the initial difference. Where did it end up?

Speaker 6 It ended up at 537 votes when it was all said and done and certified and the slate of electors sent to

Speaker 6 the archivist in Washington for the Electoral College count.

Speaker 4 All right, so a little more than 1,000 votes redirected or dismissed or something. Do you agree with that final outcome?

Speaker 4 Do you think that through the process we actually got a fairer count or was it less fair?

Speaker 6 No, I think we got a fair and more accurate count. There often is some movement when you do recounts and contests, all of which are prescribed under Florida law.
But

Speaker 6 we believe that that count was accurate. And in fact, you know, there were a score of media recounts in the year after the election, really all of which confirmed the accuracy of Governor Bush

Speaker 6 being elected president of Bush.

Speaker 4 Amazing. So, sort of stepping back and looking at all this, how has this case shaped procedures around elections since that ruling? Has it affected other presidential elections?

Speaker 6 Well, I'm not sure you would say it's directly affected other presidential elections, but I think it's affected all elections in some ways.

Speaker 6 And I think it was, this is true whenever you do a recount, but especially a presidential recount under that bright a spotlight. But when you kick open the hood of our election system,

Speaker 6 you see that it's a little bit creaky. It produces accurate results,

Speaker 6 but

Speaker 6 there were improvements that were made following Florida. For example, punch card ballots aren't used anymore.
So there was an upgrade in equipment.

Speaker 6 Congress passed something called the Help America Vote Act in 2002 that provided a great deal of funding that led to an upgrade in

Speaker 6 all the equipment that's used. So that was an improvement.

Speaker 6 I think that

Speaker 6 there have been a lot of amendments to state recount and contest laws since then

Speaker 6 because of the problems that were shown.

Speaker 6 I mean, basically, I think up until that point, all state recount laws were really geared towards much more local races, the state legislative and even congressional races that take place with greater frequency.

Speaker 6 And so the procedures and checks really weren't in place for a statewide recount, especially one under that kind of scrutiny.

Speaker 6 So lots of states, with Florida really leading the way, improved their basic recount laws.

Speaker 6 And then there were, there had been a sort of an ongoing series of commissions about once a decade that's taken a look at the system of voting and the way that we do that.

Speaker 6 And incremental improvements have been made in a country that made a policy decision 250 years ago to have elections on the very local level.

Speaker 6 And so we have somewhere between 8,000 and 10,000 separate jurisdictions where ballots are cast and counted. And that's great in that it's your neighbors who are running your elections.

Speaker 6 But It's not surprising to know that there are inconsistencies among 8,000 to 10,000 of anything.

Speaker 6 And so you have sort of built-in equal protection problems that were raised in Florida that are still prevalent today, even if the impact has been improved over the years.

Speaker 4 A final question.

Speaker 4 Given the landscape now, this sort of weaponization of the government accusations we see from both sides, do you think if we had a similar situation like that now, that it would play out differently?

Speaker 4 You said you feel some things are more secure electorally, but what about from the political and legal perspective?

Speaker 6 I think it would be very, very different today. And as torturous, as contentious as those 36 days were in 2000, I think we had it pretty easy by comparison of what it would be like today.

Speaker 6 I mean, look, Al Gore, after all the votes were counted, gave an extraordinarily gracious and conciliating

Speaker 6 concession speech. That is not part of the program today

Speaker 6 in many races, not in a way that's been better. I think that today, given just the different ways we communicate, it would be totally different.

Speaker 6 I mean, imagine the impact of social media and the internet on this process, including cameras and cell phones, that there would be individual pictures taken of every ballot and blasted around the internet.

Speaker 6 questioning those judgments at the moment. I mean,

Speaker 6 what you can do now in terms of deepface and artificial intelligence would lead to distortions. There are far more media outlets, as I know you know.

Speaker 6 And so the common set of facts that might be prevalent to bring a country together after a contentious recount are much less present.

Speaker 6 So I think it would be a completely different

Speaker 6 situation today.

Speaker 6 And I hope we don't have to face it.

Speaker 4 Well, let's hope not. Thank you so much for joining us.
A total delight to talk to you.

Speaker 6 Thank you very much. Great to be here.

Speaker 4 That was Ben Ginsberg speaking of the Bush versus Gore Supreme Court case. And this has been a weekend edition of Honywire.

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