First of all, can we congratulate ourselves for surviving that final debate between Donald J. Trump and Joe Biden? And while I’m at it, let’s congratulate the two septuagenarians. Compared with the last debate, Trump was remarkably tranquil, though I had no idea what he was saying 90% of the time (e.g., what was that stuff about Biden and “tiny windows”?). As for Biden, he was coherent. Whew! All in all, it was a bit boring—a huge compliment in this case.
Of course, this magic moment won’t last. All signs indicate that Trump will not go gently into that good night, should he lose the election. Trump has said (followed dutifully by Mike Pence) that he can’t promise a “peaceful” transition should he lose. And already, this election is well on its way to being the most litigated in history.
So, is it possible that we will see a repeat of Bush v. Gore, where the U.S. Supreme Court intervened to decide the outcome of the election?
Who better to ask than the two lead lawyers in that case—David Boies and Ted Olson?
As everyone knows, Boies and Olson managed to come out of that bitter fight as pals, forming a bond almost as adorable as that of Antonin Scalia and Ruth Bader Ginsburg. In fact, I caught up with Boies and Olson just days before they were about to set sail on Boies’ boat off the coast of Nantucket. (Ah, to have been a fly on that deck!)
Though BFFs, the two view the current election and what the Supreme Court might do quite differently. While Boies tends to be more philosophical and expansive in his responses, Olson is succinct and less romantic. Here are excerpts from my three conversations (two with Boies, one with Olson):
Is the legal mess surrounding the current election at all similar to what happened in 2000?
Olson: Bush v. Gore was a 35-day episode focused on one state, Florida, and the dispute was about ballots and how they’re counted. This time, it is about everything, everywhere—when ballots were postmarked, when votes are to be counted, how they were cast. To me, it looks like it will be much more complicated unless one party has an insurmountable lead.
Many people don’t believe we’ll wake up on Nov. 4 and have the question of the next president settled. Should we expect a long, dragged-out legal fight?
Boies: This is unlike any election ever. There’s a significant amount of talk about not accepting the results. I personally think it’s all talk. If Trump loses, he’ll be out of the White House, and if he chained himself to the furniture, he’d be taken out by U.S. marshals.
Wow, that’s quite a graphic picture. So what are the odds this will end up at the Supreme Court?
Boies: I think this is very unlikely but not impossible. It could happen. Take Wisconsin. If the Wisconsin Supreme Court, which is very biased, declared that mail-in votes don’t count, it’s possible that Trump would win. Then, Biden’s only recourse is to go to the Supreme Court.
And will the Supreme Court take Biden’s case or one by Trump that challenges the result?
Boies: I think it’s unlikely the Supreme Court will do what it did during Bush v. Gore because of the fallout and criticism that came out of that. It wants to retain integrity.
The greatest fallacy of Bush v Gore is that it wasn’t just ideological but partisan. The court is more divided ideologically, but I think there’s a difference between partisanship and ideology. Justices like Roberts and Kavanaugh are very conservative but they’re also very committed to keeping out of partisan politics. Remember, when Trump criticized the court, Roberts told him sharply that there were no Republican or Democratic justices.
In some sense, Bush v. Gore was worse than Plessy v. Ferguson or Dred Scott. Those were horrible decisions but they were ideological. In Bush v. Gore, the court used its power to elect the president. Scalia wrote that the vote-counting in Florida had to stop because if it went ahead, it would affect the legitimacy of the election. That’s not the Supreme Court’s function. That undermined the basic tenet of democracy. The court has no military power, no taxing power. Its power comes from the people’s belief that it’s a legitimate decision-maker.
That’s an exalted view of the Supreme Court. That seems counterintuitive, considering how polarized this country is.
Boies: Look, I’m not optimistic about the court’s sharp turn to the right. The way it’s cut down on voter protection, giving states the power to burden voting, is wrong. But when you look at history, it’s the decisions in which the court advanced civil rights where it ultimately commanded respect.
Ted, your friend David Boies thinks the Supreme Court will stay above the political fray. And your view?
Olson: Supreme Court get involved? Well, why not? They already got involved in South Carolina. Just recently, they ruled that South Carolina had the right to require that absentee ballots be witnessed to be valid. If there’s a District Court decision about voting that differs from one in another circuit, I think the Supreme Court might take it again.
Did we learn anything from the hot mess of 2000? Florida’s hanging chad problem seems easy compared to all the various Byzantine voting rules around the country.
Boies: The lesson from Bush v. Gore is that it’s important to count the votes. I hope Bush v. Gore was a one-time experience.
Olson: Am I surprised we haven’t learned anything since 2000? I guess that depends on how cynical we feel at 2 o’clock in the afternoon.
Until recently, people would show up on Election Day, you showed your driver’s license, you’d vote and we’d know the results by the end of the day. Now, people began voting in some states in September. Now every state has a different method for counting ballots. You’re bound to have chaos if the election is spread over six weeks. The Democrats are leading in voting by mail, and the Republicans in in-person voting. Why is that the case? Who knows? But it creates a divide.
Can you foresee an end to this polarization?
Olson: You mean when there’s peace in the world? Look, don’t say I’m optimistic or pessimistic. Just say that I’m an observer and voter.
And what’s your prediction about the outcome?
Boies: If Trump is reelected, there will be damage to our institutions and the unity of the country. If Biden is elected, we will look back at these four years as an aberration.
Olson: I’m not making predictions or guesses. I’m happy not being there. I’m happy where I am in Great Falls, Virginia. And no one knows how I’m voting—not even my wife.
Twitter: @lawcareerist
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