Bush v. Gore and 36 days of sheer chaos in 2000: Could it happen again in swing state Florida in 2020?

The 2000 presidential election recount between George W. Bush and Al Gore began in Tallahassee, FL and moved on to the U.S. Supreme Court. Credit: Florida State Archives.

In the 55 years I have spent witnessing and writing about news in Florida, there is one scene that stands out more than any other: It was early November of the year 2000.

There was a Japanese television crew setting up a tent on the front lawn at the Florida Supreme Court.

Across the street at the state Capitol, hundreds of reporters had set up similar tents all around the House and Senate Office buildings and all across the wide brick courtyard that lies between the halls of state government.

Politicians were dragging out huge American flags to use as the background for press conferences.  We could tell which party was coming – the Republicans put up 12 flags on ornate polls with Golden Eagles on top. The Democrats put up one state flag and one American flag.

The scene was part circus, part continuing press conference, part political protest and the most serious legal drama The Capitol had ever seen.

George W. Bush. Credit: Wikipedia

Texas Gov. George W. Bush was initially ahead of former Vice President Al Gore by 1700 votes when the first count was totaled.  A machine recount required by law left Bush ahead by 537 votes.

Lawsuits were flying everywhere as Republicans and Democrats went to courts in Tallahassee, Miami, Fort Lauderdale and a handful of other counties where lawyers were raising questions about the way votes had been counted or cast.

Al Gore. Credit: Wikipedia.

Gore wanted recounts in populous counties controlled by Democrats. Bush liked being ahead. At stake were 25 Electoral votes and the Presidency.

Thus began 36 days of sheer chaos.

Reporters and television cameras arrived from all over the world, joining the crowds in the courtyard and dashing between press conferences, court hearings and governmental meetings called to consider the situation.

The Legislature convened with an aim to take over and appoint electors if a winner was not chosen by December 12 – the drop dead date for selecting Electors who would select the President to be.

Former Secretary of State James Baker, a Republican, surfaced as the lead spokesperson for the Bush team and former Secretary of State Warren Christopher, a Democrat, spoke for Gore.

Hotels and restaurants were jammed.  Only the annual Florida State versus Florida football game intervened when hotels around town kicked out the important reporters and politicians for traditional fans who had reserved the rooms for a couple of nights. Most of the visitors found shelter with local citizens who volunteered their extra bedrooms.

No one was sure where this fight would end.

Gore filed suit seeking a recount in several South Florida counties, but not statewide.

That’s when we all realized that each of our 67 counties determined how they would count ballots and each one was different.

There was no standard method of voting or counting the votes. Some counties used paper optical scan ballots. Some used punch card ballots that would not produce the same count if put back into the counting machines because the small chads that should have been dislodged often fell off after the ballots were counted a second time.

Some counties counted a vote if the person punching the card made a “dimple’’ in it or left part of the chad attached to the ballot – a hanging chad. Others didn’t.

Oddly enough there were also many differing practices among the 67 counties for counting votes.  Some counties reviewed the ballots where no vote was recorded to see if they could determine who the voter intended to vote for.

If the voter failed to make an X but wrote in a name, the vote was counted. Others did not count those ballots.  Some absentee ballots were not counted if they didn’t arrive on a particular date.  Others counted late arriving ballots, especially those sent by the military.

A Tallahassee judge rejected Gore’s plea for a partial recount and Gore appealed to the Florida Supreme Court.

Florida Supreme Court. Photo: Colin Hackley

Florida’s highest court agreed that some of the questioned ballots should be recounted, noting 9,000 overvotes cast in Miami-Dade that should be examined to determine if it would be possible to determine who each of those voters intended to select.

But the U.S. Supreme Court decided all vote counting should cease.  It was too late.

The 537 vote victory would stand. George W. Bush would be president.

The question we now face is whether something like this could happen again.

Many of those who participated in the 20 year old drama think the problems of yesteryear were fixed when Florida voted to jettison punch card voting and develop a better system for future elections.

Retired Florida Justice Charles T. Wells, who was chief justice in 2000, thinks we could again be in trouble as do a number of national political pundits who have questioned what would happen if President Donald J. Trump were to lose by a narrow margin and claim there had been some type of fraud or actions taken by a foreign country to influence the results of the election.

Charles T. Wells became Chief Justice of the Florida Supreme Court in July 2000 and presided over the cases that came to the Florida Supreme Court during the 2000 presidential election. Credit: Florida Supreme Court website.

Wells thinks every state in the nation needs to prepare to act quickly with short deadlines to safeguard voter rights in the 2020 election.

The federal “safe harbor’’ law allows only 35 days for election disputes to be finally decided by the state law that was designed to ensure Florida’s Electors will be able to meet with the Electoral College to cast the final votes.

If the College does not meet on time, another section of federal law would put Congress in charge of counting Electoral votes — and likely lead to further litigation and chaos.

“This is the lesson I learned presiding over the legal cases in Bush v. Gore in 2000,’’ Wells said in an essay he has written to help warn officials in all 50 states.

Presidential elections must operate by the laws in each state where the local government controls the voting, counting of ballots and reporting of the vote to state officials.

“I learned that the same law applied to voting for President is applied to voting for Florida’s governor, state Cabinet officers, county sheriffs and other Florida offices,’’ Wells noted.

Then the controlling law shifts to the United States Code which controls the vote by Electors who have been selected by each state’s voters.  State officials need to be aware of the Safe Harbor Provision of federal law.

That section says all controversies are to be finally determined by each state at least six days before electors meet.

In 2000, that date was December 12 – the day the U.S. Supreme Court rejected Gore’s plea for recounts.  This year the date Electors must meet is December 14, meaning that all controversy must be settled by December 8.

That’s not much time between Election Day – November 3 – and December 8.

Wells first raised the question back in 2000, saying he did not think the recounts and litigation could be completed without taking Florida outside the Safe Harbor provision that would guarantee the state’s Electoral College votes would be counted.

“Exceeding that date will move our country into uncharted complications and delays, Wells said. “It is plain we must have a President on January 20, 2021. State courts are vital to making this happen and must prepare to make it happen.’’

Those of us who lived through the 2000 election are always hoping for a landslide. It avoids chaos.