The Legal Fight Awaiting Us After the Election

Jeffrey Toobin in The New Yorker:

The immediate aftermath of the Presidential election of 2000 has taken on the air of legend. On Election Night, news organizations first called Florida for Vice-President Al Gore—then, about two hours later, withdrew the call and, about four hours after that, declared that George W. Bush, the governor of Texas, had won the state, giving him enough electoral votes to become President. Gore called Bush to concede, and left his hotel in a motorcade to announce the end of his campaign to his supporters. His aides, learning that the race in Florida was, in fact, too close to call, tried frantically to contact the Vice-President in his limousine. They reached him just in time, and he telephoned Bush to retract the concession. Bush indignantly told Gore that his “little brother”—the governor of Florida, Jeb Bush—had said that he had won. “Let me explain something,” Gore replied. “Your little brother is not the ultimate authority on this.”

Like all historical events, the following thirty-five days can look, in retrospect, inevitable, even preordained. But they were a product of choice, improvisation, and happenstance. Gore demanded recounts in four Democratic-leaning counties, which began the painstaking process of studying their punch-card ballots and determining whether the tiny boxes known as chads had been fully detached. Bush responded by filing a lawsuit in federal court in Miami to stop the recounts. In one of the lesser-known events surrounding that case, James A. Baker III, Bush’s lead strategist at the time, called John C. Danforth, the former Republican senator from Missouri and an ordained minister, who was famous for his rectitude. Baker wanted Danforth to be Bush’s spokesman in the suit. Danforth was horrified. “Candidates don’t sue,” he told Baker. “You could ruin Governor Bush’s career. He’s only fifty-four years old, and the decision to file a court case like this would be a black mark that followed him forever. And it would destroy the reputation of everyone involved on the Bush side.”

More here.