Way back in 2000, before coronavirus pandemics and September 11 and The Real Housewives, the Supreme Court of the United States was asked a key question in the now-famous Bush v. Gore case. That question was simply: when does the presidential election end?
The court’s narrow ruling was that 3 U.S. Code § 5 sets a hard deadline for the conclusion of the presidential election. Known as the “safe harbor” deadline, it reads like this:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
In short, there’s a “safe harbor” deadline – six days before the Electoral College meets – and whoever is winning the presidency at that point is the winner, period. In Bush v. Gore, the conservative majority ruled that it was impossible for any recount in Florida to both (a) count all the votes properly and (b) do so before the safe harbor deadline, and so it ordered the counting to stop and for the votes to be tallied as they were, with George W. Bush certified as the winner of Florida’s electoral votes and therefore the presidency.
The ruling in Bush v. Gore has long been controversial. It essentially found that there was a way to game the system. All you have to do is keep the results in doubt until the safe harbor deadline at which point you can cruise to a victory-by-technicality. It remains unclear whether Bush would have won Florida had a full and proper recount taken place (the state was so disorganized that a full and proper recount is a purely theoretical idea anyway) and that hung over the first year of his term, but the events of September 11th did a lot to wipe Florida out of the public consciousness and in 2004 he won a second term outright.
Donald Trump’s 2020 strategy is clearly rooted in the legal strategy of the 2000 Bush campaign. Trump has even put veterans of that campaign, like Amy Comey Barrett, on the court. But the fundamental thing about Bush v. Gore is that Bush was leading at the time the case was decided. You have to be leading by the safe harbor deadline, otherwise it doesn’t work. Trump, who was only leading on election day itself and lost his lead soon after, kept pursuing this strategy hoping he could get enough states overturned and in doubt by the safe harbor deadline but couldn’t get any traction in the court system.
Under the Bush v. Gore interpretation of 3 U.S. Code § 5, Joe Biden is the unassailable president-elect. With 306 lifelong Democrats headed to cast votes for Biden in the Electoral College, the risk of faithless electors stealing the whole thing for Trump is non-existent. The election is, finally, over.
Oh, wait, hang on.
The State of Texas is suing Pennsylvania, Georgia, Wisconsin, and Michigan because “unlawful election results” gave those states to Biden and not Trump. It doesn’t matter if this would require overturning Bush v. Gore, because the next time they need it they’ll just reinstate it. This is McConnell Thought in action: dismantle institutions before Democrats can use them and then rebuild them exactly the same way when Republicans need them again.
A Trump campaign lawsuit in Georgia seeks to overturn the results there and force the state to do the whole election over again. The Constitution says that only Congress can determine when elections are held and that elections for president must be held in every state on the same day, which seems to suggest that a do-over isn’t possible but this hasn’t really been litigated that much (for example, early voting has been upheld as still meeting the Constitutional requirement of “[the] Day shall be the same,”).
None of these lawsuits are expected to prevail, and the Trump campaign seems to be winding down its legal challenges. But the fact that they are still trying at all demonstrates the overt hypocrisy of the conservative movement, and its one that is far more McConnellesque than Trumpist.
