Exactly ten years ago, on November 7, 2000, the presidential election pitting Al Gore against George W. Bush morphed into the legal recount contest ultimately titled Bush v. Gore
. The sitting vice president, Gore, won the national popular vote. The former Texas governor, Bush, was awarded the electoral votes of Florida and thus the election.
Amid evidence of voter chaos over "butterfly ballots," poll police, and more, Gore challenged the Florida results in court. It took five
tortuous weeks, in courtrooms from Tallahassee to West Palm Beach to Washington, and unprecedented intervention
by the United States Supreme Court, to end the counting of chads, hanging or otherwise, in the Sunshine State. When it was over, Bush was awarded the presidency. And the rest, as they say, is history.
Perhaps if the interceding decade was not so momentous it would more surprising to see the Bush v. Gore
battle to fade into memory; a quirky piece of American history, like the election of 1876
when New York's Samuel Tilden outpolled Rutherford B. Hayes only to lose after a dispute over electoral votes in three states, or Ross Perot, whose third party run for President in 1992 netted the largest among of votes
for an independent since Theodore Roosevelt in 1912.
Alas, America has endured these past ten years her most tumultuous decade since the 1960s. Terrorism. War. Economic ruin. We can never know whether any of it, or all of it, would have been different had Gore prevailed 10 years ago. We cannot rewind the clock and see what the alternative universe looks like. But we can
acknowledge with the benefit of a decade that most of the direst post-recount predictions about the impact Bush v. Gore
would have upon law and politics have turned out to be wrong.
Don't forget: The Bush v. Gore
world lasted only 274 days, from December 12, 2000, the day the Supreme Court told Florida officials to stop counting ballots, until September 11, 2001, the day the United States suffered its worst terror attack in history. After the Twin Towers fell, until the Iraq War, the nation was united politically in a way it had not been since World War II. Much of the rancor generated from the Florida fight ebbed away amid a flood tide of patriotism and bipartisanship. The 2002 midterm election, the first national contest after Bush v. Gore
, was neither close nor controversial. Under President Bush, whose favorable ratings were sky high in 2002, Republicans gained seats in both houses of Congress.
This era of comity, this banding together of the right and the left, ended in 2003 -- the war in Iraq clearly being the turning point. But the partisan re-set that occurred at that time could not and did not re-set back to the Bush v. Gore
era. Too much had happened in the intervening years; the stakes were higher, not lower, than they had been in the fall of 2000. On the eve of the 2004 presidential election, there were grave concerns about post-election litigation. And there was a recount in Ohio, following President Bush's narrow victory over Democratic challenger John Kerry there. But Kerry conceded quickly to the war president and did not challenge the Ohio results in court the way Gore, and later Bush, had challenged Florida's recount. Still, no one wanted to sue the commander-in-chief over ballots.
Subsequently, the national elections of 2006, 2008, and 2010 were not close enough to warrant or generate an avalanche of litigation, with the Norm Coleman-Al Franken fight
over a Minnesota Senate seat being the most notable exception. There may yet be another Supreme Court showdown over a presidential election. But unless it happens in the next two elections that mess will belong to a different generation than the one that gave us Bush v. Gore
. One of the legacies of the pitched battle ten years ago is that voters appreciate now, in a way they did not before Florida 2000, that our elections, like any human endeavor, are fraught with errors. Bush v. Gore
thus opened eyes and lowered expectations. Voting in America is guaranteed by law but not in fact. The votes of some simply don't get counted.
Evidently we've come to accept this. After 2000, the "endless recounts" and interminable post-election lawsuits never really came on with any force. Instead, Congress passed the Help America Vote Act of 2002
and secretaries of state all across America scrambled to fix their voting systems and operations. Thousands of lawyers become "election law" specialists-- but most of them pay the bills doing other things. And judges have reverted back to their more traditional roles in election law-- ordering polls to stay open, certifying candidates or causes, and occasionally chiming in on voter registration or identification laws. Some election law changes since 2000 have benefited Republicans. Some have benefited Democrats. What Bush v. Gore
didn't do was to push Congress to pay for the technology needed to update all
voting places. There is still much work to do co fix problems that continue to be reported
Ten years ago, there were also dire predictions that the Supreme Court would lose prestige and credibility as a result of its unique 5-4 ruling in Bush v. Gore
. The Court today is markedly different than it was then. Chief Justice William Rehnquist and Justices David Souter, Sandra Day 'Connor, and John Paul Stevens all are gone. In their place have come Chief Justice John Roberts, and Justices Sonia Sotomayor, Samuel Alito and Elena Kagan. The Court's most important contribution to election law since 2000 was its 2008 decision
upholding Indiana's stringent voter registration law. Not surprisingly, the conservative Court in Crawford v. Marion County
generated a result favored by Republicans, just as a conservative Court had done on December 12, 2000.
So did the Court lose respect
among Americans for its ruling in Bush v. Gore
? Did it lose legitimacy
? You can argue it both ways and scores of legitimate scholars
have gleefully done so
. If the Court did
lose some credibility, and I think it did, clearly it did not lose enough to generate much of an anti-Court backlash. The Justices are still going strong-- witness their landmark corporate speech case this past January in Citizens United
. And so are their critics. Bush v. Gore
didn't change the world. The world changed shortly after Bush v. Gore
and it's likely never going to change back.