The guys at the New York Times, after an exhaustive manual recount of votes cast in Florida in 2000, reported: “the United States Supreme Court did not award an election to Mr. Bush that otherwise would have been won by Mr. Gore.”
The L.A. Times wrote:
If the U.S. Supreme Court had allowed Florida’s courts to finish their abortive recount of last year’s deadlocked presidential election, President Bush probably still would have won by several hundred votes, a comprehensive study of the uncounted ballots has found.
The St. Petersburg Times, after this study, ran a headline reading: “RECOUNT: BUSH.”
The Palm Beach Post wrote : “Al Gore was doomed. He couldn’t have caught George W. Bush even if his two best chances for an official recount had played out.”
But Jonathan Chait of the New York magazine* disagrees. He argues that the media delivered this answer because of “massive pressure to retroactively justify the processes that led to his victory, in the general spirit of restoring confidence in the system. In the aftermath of the September 11 attacks, that pressure intensified….”
I like that Chait is willing to challenge the consensus of the elite expert gatekeepers — we need more of that. I find revisionist history to be a crucial check on power. History’s second draft, after all, is always written by the winners, and so we always need a third draft. I also understand why Chait would conclude that Gore really won Florida — the most comprehensive recount by the consortium of newpapers in 2001 found that more people showed up to vote for Al Gore in Florida, probably, than to vote for Bush.
But the question at hand, as multiple liberals — anxious about the ObamaCare ruling — charge the Supreme Court with a coup, and repeat, again and again, that the Supreme Court “decided” or “stole” the 2000 election, is this: what would have happened had Gore won the case.
1) First consider the lower-court ruling SCOTUS was striking down: The Supreme Court of Florida (SCOFLA) had ordered a statewide recount of all undervotes. Had SCOTUS deferred to SCOFLA, Bush would have won, according to the consortium’s recount. As the NY Times put it:
[I]f Florida’s 67 counties had carried out the hand recount of disputed ballots ordered by the Florida court on Dec. 8, applying the standards that election officials said they would have used, Mr. Bush would have emerged the victor by 493 votes.
2) Alternatively, if SCOTUS had granted the Gore campaign exactly what they wanted — a recount only in four Gore-heavy counties — Bush still would have won. Again, the Times:
Even under the strategy that Mr. Gore pursued at the beginning of the Florida standoff — filing suit to force hand recounts in four predominantly Democratic counties — Mr. Bush would have kept his lead, according to the ballot review conducted for a consortium of news organizations.
So how does Chait come to his conclusion that “Bush v. Gore Did Steal the Election”?
First, Chait falsely asserts “we know nearly for certain that the recount stopped by the Supreme Court would have given Gore the lead.” But that seems to refuted by point (1), above. The consortium carried out the recount ordered by SCOFLA and halted by SCOTUS. And they found Bush winning.
But Chait posits a third type of recount, aside from the one ordered by SCOFLA and the one requested by Gore:
3) Counting all undervotes and all overvotes (ballots recording more than one vote for president), and discerning from the overvotes whom the voter wanted to vote for. The constortium did a count like this, and found Gore might have won.
As the Orlando Sentinel put it:
the study also found that those uncounted ballots were so narrowly split between Bush and Gore that the winner would depend entirely on how the count was conducted. Under the different ballot-counting methods used in the study, Gore generally pulled ahead when so-called “overvotes” are included in tabulations, and Bush did better when counts are limited to so-called “undervotes.”
But there’s no basis to believe (3) would have been carried out had Gore won. It wasn’t what Gore wanted. It wasn’t what SCOFLA had ordered.
Chait tries to claim (3) would have happened: “Subsequent reporting by the Orlando Sentinel and Michael Isikoff found that the recount, had it proceeded, almost certainly would have examined overvotes.”
But the Sentinel article said exactly the opposite:
The study found that, even if the recount had been allowed to proceed, and the ballots had been recounted just as election officials in each county say they planned, Bush still could have won by a 493-vote margin.
But here’s the passage on which Chait hangs his claim:
But if the recount had gone forward, it might have been expanded beyond what the Florida Supreme Court ordered by the man responsible for overseeing it, Leon County Circuit Court Judge Terry Lewis.
The recount was halted before he decided how it would finally work, but Lewis said in an interview earlier this year that he would not have ignored the overvote ballots. Though he stopped short of saying he definitely would have expanded the recount to include overvotes, Lewis emphasized, “I’d be open to that.“
Chait didn’t enter his other evidence into the record, and so I’ll do it for him: the contemporaneous notes of judge Terry confirm that he’d be open to that. Terry wrote to the Charlotte County Canvassing Board:
If you would, segregate “overvotes” as you describe + indicate in your final report how many where you determined the clear intent of the voter. I will rule on the issue for all counties. Thanks
So a judge who was, at the time, in charge of the recount, was open to counting the overvotes, a standard which might have resulted in a Gore winning. Even further, Lewis told Isikoff a year later that he thought counting overvotes made sense. That’s not nothing, I’ll admit. But it’s not even close to what Chait pretends it is.
For one thing, Gore might have protested allowing overvotes, because, as the Sentinel explained, most potentially-countable overvotes were in Bush counties.
Also, it’s dubious Terry had the authority to count overvotes. After all, his state’s Supreme Court had ruled: “the ultimate relief would require a counting of the legal votes contained within the undervotes in all counties where the undervote has not been subjected to a manual tabulation.”
Also, state law explicitly said a vote does not count, “If an elector marks more names than there are persons to be elected to an office.”
So Chait and Team Coup count on an illegal recount method a lower-court judge was open to despite a contrary ruling by the state’s Supreme Court and the fact that the Gore campaign wasn’t seeking it.
Say what you want to say about the jurisprudence in Bush v. Gore. Say what you want to say about who really won Florida in some cosmic sense. But the “SCOTUS Stole The Election” argument is based on such far-flung conditionals it shouldn’t be taken too seriously — and it certainly shouldn’t be taken as a fact.
*CORRECTION: Originally, I conflated The New Yorker with New York magazine.