Trump revives the 'Bush vs. Gore 'on his crusade against vote by mail

Fact checking: Trump and vote-by-mail fraud 3:35

(CNN) - President Donald Trump's attorneys are trying to revive the Supreme Court decision that granted George W. Bush the presidency in 2000 to fight voting by mail in the upcoming presidential election.

The 5-4 ruling in Bush v. Gore ended a 36-day ordeal after Florida's results were too fair to declare a winner. The dispute featured battalions of lawyers settling in the state, contesting ballots that were not completely punctured, and multiple recounts under the glare of national television. Although the case still resonates politically, lurking elections when they are very close, its legal principle has long been considered a valid decision for a single case. The Supreme Court itself has not cited the decision in any ruling since.

However, as tensions over voting by mail mount, Trump persists with his unsubstantiated claims of fraudulent voting, and his legal team brings up the Bush v. Ruling again. Gore , some Democratic attorneys wonder if the case can cease to be a one-time decision and become more of an axiomatic principle that, in the words of the late Justice Robert H. Jackson, "lies like a loaded gun ready" to be used in a moment of need.

If the Trump campaign's new legal approach is successful, it could lead to massive vote casts in November, a prospect that has raised the concern of some Democrats as states increasingly encourage mail-in voting options because of the covid-19 pandemic.

A CNN poll released last week found that Trump supporters broadly prefer to vote in person (66%), while supporters of former Vice President Joe Biden said they would prefer to vote by mail (53%, versus 22% who prefer to vote in person). person).

When the high court halted the recounts in Florida in 2000, granting the White House to Republican Texas Governor Bush versus Democratic Vice President Al Gore, it declared that county standards for evaluating voters' intentions on disputed ballots varied. too much to be fair. The court said the variations violated the 14th Amendment guarantee of equal protection.

However, the conservative majority of five justices also described their opinion in Bush v. Gore as "limited to current circumstances, since the problem of equal protection in electoral processes generally presents many complexities."

As a result, legal commentators have long watched the ruling in Bush v. Gore as a decision born of the political moment rather than a decision that offers a solid precedent. Lower court judges have only sporadically referred to the case.

• LEE: The controversy of the Postal Service and the presidential elections of the United States explained

Lawyers for Trump's campaign believe the case has a new relevance. They are based on Bush v. Gore in new lawsuits against voting by mail in Nevada and New Jersey, especially in the case of Nevada. They claim that states lack uniform procedures for voting by mail in violation of the equal protection of the Constitution.

In Nevada's lawsuit against the secretary of state, attorney William Consovoy, who has been at the forefront of much of Trump's litigation, wrote that the regulations for voting by mail lack "minimal procedural safeguards" and constitute a "Unequal and unstandard treatment of Nevada voters across counties."

The new legal arguments echo Trump's broader and more unfounded attacks on vote-by-mail as fraudulent. Multiple studies have found that there is no widespread fraud in American elections. Still, there has been an acceleration of Trump's claims on multiple fronts as some states prepare to send ballots next month.

Consovoy declined to comment on the Trump campaign's litigation strategy or the use of Bush v. Gore .

Counts, Ballots That Weren't Completely Punched, and the "Brooks Brothers Mutiny"

The Bush saga v. Gore showed how a close and contentious race could tear the country apart, even in a less polarized age.

Two decades ago, Florida's 25 electoral votes were at stake, which by the end of November 7, 2000, Election Day, were expected to determine who would be president. The race was too close to determine a winner that night, although some news networks declared Gore the winner in Florida, then Bush, and then simply said they didn't know. Gore even gave Bush the victory, then called and backed off.

That was a sign of the chaos and confusion that would take over the country in the next five weeks. When the counts began, the accounts changed. A certification from the state of Florida in late November, issued by a Republican secretary of state, put Bush ahead by just 357 votes out of nearly six million votes cast.

Among the indelible images seen as national television replayed the counts were officials scrutinizing ballots that were not completely perforated and those that were marked but not perforated to discern the intentions of the voters and the 'Brooks Brothers mutiny' »At the Miami Dade County Elections Office which interrupted the counts. It all ended just after 10 p.m. ET on December 12, with another memorable image, as news reporters ran through the marble plaza of the Supreme Court, court decision in hand, awaiting television cameras.

• LEE: Postal Service reverses changes while 20 states sue for possible delays before elections

The justices refused to take the dock to announce their unsigned opinion permanently halting Florida's counts. The same conservative majority of five judges had temporarily blocked the recounts three days earlier, also due to protests by liberal dissidents.

The final decision found that standards in Florida for evaluating contested ballots varied from county to county, resulting in "arbitrary and unequal treatment" of voters.

In the majority were the president of the court William Rehnquist, and justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer disagreed.

That conservative-liberal formation fueled complaints about partisan politics.

Stevens, the leading liberal at the time, wrote: 'Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's trust in the judge as an impartial guardian of the rule of law.

The superior court has not referred to Bush v. Gore in no subsequent ruling, according to a search of the court's website that includes the texts of the cases. The only citation to the case appears in passing in a footnote in a solo dissenting opinion by Thomas in a 2013 voter registration dispute in Arizona.

However, from a neutral point of view, the case would have as much precedent value as any other Supreme Court decision and litigants would be free to use it if they found it persuasive in presenting their cases.

Thomas is one of three justices (with Ginsburg and Breyer) still in court since 2000. Two justices who joined years later worked as attorneys with the Bush team in Florida: John Roberts, appointed President of the Court Supreme by Bush in 2005, and Brett Kavanaugh, appointed by Trump in 2018.

Lawsuits in Nevada and New Jersey

The Trump campaign demands invoking Bush v. Gore were filed by the lawyer form Consovoy McCarthy, who has led countless Trump litigation, including the president's effort to prevent his tax returns from being turned over to a Manhattan grand jury.

In the Nevada lawsuit filed on August 4, Consovoy protested in particular against the rules that would allow the counting of some late ballots and, separately, that require a different number of polling places in urban and rural areas based on the county population.

Nevada state officials have asked that the lawsuit be dismissed. A judge in a US district court has yet to rule on that motion.

The Democratic National Committee, the Democratic Congressional Campaign Committee and the Nevada Democratic Party were allowed to intervene in the Nevada case, pursuant to a United States district court order issued Friday. In the motion in which they asked to intervene, the Democratic groups had declared that Trump's demand was "a hodgepodge of claims" that are not "viable."

• READ: OPINION | Trump is undermining the postal service to increase his chances of re-election

Brought to you by attorney Marc Elias, a veteran of many Democratic campaign battles, the motion describes Trump's lawsuit as "an attempt to undermine the state's effort ... to protect Nevada voters during a public health crisis." .

A separate federal lawsuit from Trump's campaign against New Jersey was filed Tuesday after Gov. Phil Murphy declared that all residents would receive ballots to vote by mail in November. Residents can also vote in person, but through provisional ballots that must be checked for duplicate votes.

The Trump campaign presents numerous legal underpinnings, including those based on the Bush v. Equal protection rationale . Gore. Murphy's order, Trump's attorneys say, "will result in New Jersey counties using different standards to determine what a legal provisional vote is."

Overall, the complaint echoes Trump's public message that he is trying to discredit vote-by-mail ballots. He refers to potential voter fraud dozens of times and warns that New Jersey's plan emerging from a public health crisis presents "a recipe for disaster."

As Trump continues to challenge vote-by-mail, it's not hard to imagine more Bush v. Gore and even a possible repeat of the landmark case in the form of Trump v. Biden. The way the current Supreme Court would rule defies predictions, beyond the likelihood that Chief Justice Roberts will play a crucial role as he has in the most recent major cases.

• LEE: John Roberts, the right-wing judge who challenges Trump and the conservatives with another historic decision

For years, Scalia admonished the divided nation over Bush v. Gore stating, "Get over it!"

It is clear that for the followers of the last conservative icon, Trump included, this mantra is no longer valid.

Donald Trump Election 2020 United States Vote by Mail