The real legacy of Bush v. Gore.

The law, lawyers, and the court.
Dec. 3 2010 4:39 PM

Election Hangover

The real legacy of Bush v. Gore.

A voter displays an absentee ballot to make sure no chads are hanging. Click image to expand.
An absentee ballot under examination in Ohio

What's the central legacy of Bush v. Gore, which has its 10th anniversary next Sunday? Republicans see the Supreme Court stopping a lawless recount, while Democrats see a lawless court stopping a legitimate recount. Ten years later, commentators like Jeffrey Toobin protest that Bush v. Gore brought dishonor on the Court. But the Supreme Court's public legitimacy has not suffered.

The real lesson of the Florida fiasco (not merely Bush v. Gore) is about something else: the undermining of the public's faith in the fairness of American elections. This has triggered an ongoing war over their administration.

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A straight line runs from Bush v. Gore through a series of election controversies in the past decade. We can walk it from the 2003 California gubernatorial recall circus with its 21 lawsuits to the "armies of lawyers" dispatched to battleground states in the elections of 2004 to the controversies over voter-identification laws. Next, bogus organizations made unsubstantiated claims of voter fraud. When the Department of Justice investigated, they found virtually none. Still, in 2008 John McCain ranted that the group ACORN was "maybe perpetrating one of the greatest frauds in voter history." That election also featured the interminable Coleman-Franken election recount. This time around, disputes about how to spell "Lisa Murkowski" on write-in ballots are playing out in Alaska's recount of its Senate race.

The common thread is hyperpartisan controversy. Before 2000, candidates and the public were both quick to accept official election results even in close elections. Bush v. Gore taught political operatives and everyone else that there are significant problems in how we administer our elections and that when contests are close enough to be within the margin of litigation, it makes sense to fight on rather than to concede. The battle in the courts (and the press) can focus on whatever legal tool is at hand: a suit over treatment of overseas ballots, polling-place errors, mismatched signatures between registration cards and absentee ballots, votes for the "Lizard People," or allegations of fraud. Since Bush v. Gore, the number of lawsuits brought over election issues has more than doubled.

Litigation and the threat of it have come to serve another purpose as well: mobilizing the base before elections. Republicans generally charge that the election system is rife with fraud, often committed by poor and minority voters to give Democrats the advantage. Thus, former Republican House majority leader and current Tea Party enthusiast Dick Armey said before the November election (with no evidence whatsoever) that 3 percent of votes would be cast fraudulently for Democrats. He added: "I'm tired of people being Republican all their lives and then changing parties when they die." Democrats, on the other hand, make political hay by arguing that Republicans have taken steps to suppress the votes of poor and minority voters. When a Republican group, Latinos for Reform, ran ads in Nevada urging Latinos not to vote, it was hard to imagine the ads actually working, but protesting them was a great tool for Democrats trying to boost Latino turnout.

All of this has shaken public confidence in the fairness of the electoral process. Before 2000, most people were confident their votes were going to be counted accurately. After 2000, they are much less so. The pattern of public-opinion data also shows that losers tend to view a particular election as less fair than winners do. The worry and complaining about election administration has been magnified by the Internet. When Bush v. Gore was decided, there were no blogs to dissect every ballot and court opinion. Now claims of scheming and manipulation ricochet from blogs to Facebook to Twitter, breeding more suspicion.

If we wanted to, we could put an end to all this fighting. We could start with a uniform national ballot and uniform rules for the casting and counting of votes in federal elections. We could nationalize voter registration or at least mandate modernization so that state voter-registration databases talk to each other. We could remove partisan officials from making election decisions in which they have a vested interest (like Ken Blackwell, who served as co-chair of Bush's 2004 Ohio re-election committee while making a series of election-law decisions as Ohio Secretary of State that seemed designed to favor Republicans).

But the political will doesn't exist to bring about such changes. Bush v. Gore happened just as the country moved into a period of intense mistrust between Democrats and Republicans. Its legacy probably can't be reversed until those feelings subside. Let's hope that another razor-thin presidential election doesn't happen in the meantime.

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Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.

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