17 years after Bush v. Gore
December 11 marks the anniversary of the Supreme Court’s infamous Bush v. Gore decision, which sent George W. Bush to the White House. Has that case changed how Americans vote?
In one rather mundane sense it has, by eliminating the punch-card ballots that created so much uncertainty in vote counting. But in the sense of generating meaningful change in how we elect our presidents, the answer is no. Seventeen years after Bush v. Gore, we’re still using the Electoral College to decide presidential elections.
Thanks to the Electoral College, Donald J. Trump and George W. Bush both found their way to the White House not by winning the nationwide popular vote, but by selectively carrying a handful of key states. Trump scored narrow victories in swing states, while the Supreme Court’s 5-4 Bush v. Gore ruling on December 11, 2000, which ended the Florida recount, left that state’s electoral votes in Bush’s column, sealing his narrow victory.
Bush v. Gore, despite its significance, was a ruling without precedent. The Court’s opinion was explicit in that regard, referencing the case’s unique circumstances.
Elections: hanging chads to gerrymandering
Back in 2000, the issue was “hanging chads,” tiny paper portions of the punch-card ballot that remained intact, thus leaving the voter’s intention in the hands of local officials, and, ultimately, the courts.
Since then, many states have switched to electronic voting machines. But that only introduced a new wave of controversy. Hackers repeatedly have demonstrated how quickly and easily voting machines can be hacked. And of the states using electronic voting machines, several lack a paper trail to ensure the integrity of the vote.
Given that two of the last three presidents won the election without winning the popular vote, the spotlight has shifted to the Electoral College and gerrymandering.
Like hanging chads, gerrymandering is getting its day in court too. In Gill v. Whitford, the Supreme Court will decide the legality of Wisconsin’s voting districts, which Democrats say were drawn unfairly and with extreme bias.
As for the Electoral College, proponents who believe the candidate who wins the popular vote nationwide should be elected president also are looking to the courts, and beyond.
The group Equal Citizens has launched the Equal Votes project, led by renown litigator David Boies, who represented Vice President Al Gore in Bush v. Gore. Boies will lead two lawsuits, on behalf of Democrats and Republicans, claiming the Electoral College violates the 14th Amendment’s principle of “one person, one vote.”
And the National Popular Vote movement seeks an agreement among the states to eliminate their “winner-take-all” statutes, which award all a state’s electoral votes to the candidate who wins the state’s popular vote. (Currently only two states, Maine and Nebraska, do not follow the winner-take-all rule.) Thus far, legislative chambers in 22 states have signed on.
With chads no longer hanging in the balance, the future of how we cast and count our votes could be changing. The fast-approaching 2020 census also stands to make a significant impact on who may vote for whom.