The 2000 Recount, Only Worse
Later this year, Americans may face a nightmare scenario from which there will be no escape or recourse – and this has nothing to do with any virus. It has to do with how elections are conducted in the United States. We might be confronting the 2000 Florida recount, all over again. The current coronavirus pandemic is both a health threat and an economic disaster, but the social distancing of America could create an electoral contagion that would pit our best hopes against our worst fears.
Democracy, nourished and ensured as it is by free and fair elections, would be on the ropes in such a case. And those who’ll judge how it all turns out would be real judges who now sit on state supreme courts in pivotal swing states.
If November’s election is close, and before Justices John Roberts, Ruth Bader Ginsburg, Brett Kavanaugh, and their brethren are summoned as referees, America will hear first from the “other Supremes,” state jurists such as Thomas Saylor and Max Baer in Pennsylvania, Patience Roggensack and Jill Karofsky in Wisconsin, Anita Earls and Sam Ervin in North Carolina, Charles Canady and Carlos Muniz in Florida. These judges will be asked to umpire litigation over state election cases where the reported vote may be close and the process unquestionably flawed. In this Orwellian dystopia, complaints of fraud and corruption will be overshadowed by wholly justifiable claims of incapacity and incompetence. That’s because vote-by-mail could largely supplant in-person voting in numbers so big election authorities not used to the volume will commit errors.
Most states have little experience conducting elections in a socially distanced world (in 29 states in 2018, less than 10% of the votes were cast by mailed-in ballots). Tens of thousands of election workers will need to be trained/re-trained during and despite the pandemic. Expensive new vote scanners will have to be bought, and signature-matching perfected. One factoid: in 2018, 27% of absentee ballots were received too late and were not counted.
You’re looking at a prescription for mail-in mayhem and vote-counting chaos. First ballots will be counted (and re-counted) well beyond Election Day, meaning no immediate winner, no instant gratification, no balloon drops in hotel ballrooms. The impatience will build as quickly as faith in an accurate result will teeter.
Next, in those critical swing states where declarations are made about who won and lost, the lawsuits will flow built upon a common gripe: the vote itself is flawed, incomplete, and wrong, if not manipulated, corrupted or rigged.
That’s when Americans will learn that the real power in this election hails not from the voters, the candidates, or their backers, but from state supreme court mainstays wearing black robes wielding wood gavels and unlimited influence.
In battleground states Wisconsin, Ohio, Pennsylvania, and Florida, the differences among these jurists – their ideology, their experience, in many cases their partisanship – could tip the scales of justice and the election. Take Pennsylvania, the oldest appellate court in America, where five of the seven sitting supreme court jurists today (Max Baer, Debra Todd, Christine Donohue, Kevin Dougherty and David Wecht) are Democrats appointed by Democratic governors. If Republicans challenge the result there, with proper cause or not, the odds of a positive verdict are not promising.
In Wisconsin, the recent scene of pandemic pandemonium over the decision to hold a primary election that endangered the public (dozens who voted in person have now tested COVID-positive), four of the seven supreme court judges are conservative, three are liberal. A swing court in a swing state? Too close to call.
Then there’s Florida, the mother lode of America’s swing vote, and Ground Zero for the 2000 impasse. Its seven-member court is presently filled with Republican-appointed justices (GOP Gov. Ron DeSantis controls two vacancies soon to be filled). Back in 2000, six of the sitting judges were appointed by Democrats (the seventh was a joint appointment by Lawton Chiles and Jeb Bush).
As a veteran of the Florida 2000 presidential recount, where poorly designed “butterfly” ballots and “hanging chads” left the entire nation hanging in electoral limbo, I can remember the dismay Republicans felt about their chances for success in state court, and why they helped advance the decision to more favorable judicial clime: Bush v. Gore in the United States Supreme Court. Armed with a high court ruling rendered just days before the Electoral College deadline, America avoided the kind of constitutional crisis it had faced once before (Rutherford B. Hayes bested Samuel Tilden in a “disputed” race for president in 1876).
Given the fact that democracy depends on tender tendrils of trust, pollsters and pulse-takers have warned us we are already treading in dangerous territory. An NPR poll after the 2018 election reported that one out of three Americans believe election officials tamper with the vote to affect results. A recent Gallup poll went a step further, saying nearly 60% of Americans don’t believe we have honest elections (worse than every country tested except for Mexico and Chile).
With the public already conditioned to distrust elections, the improbable becomes the possible if this election is close. The math and methods will be lampooned and litigated, and the final result discounted by half or more of America. Many state supreme court judges, known for their fairness and independence, are already ruing this scenario and the role they may be asked to play. Election lawyers, political operatives and partisans are already studying their biographies, their dispositions, and their proclivities.
Soon all of America will as well.