Advisory Opinions - Bush v. Gore, Explained

Episode Date: October 17, 2024

Sarah and David are joined by Leon Neyfakh—host of the Slow Burn podcast—to explain what really happened in December of 2000 when the Supreme Court halted the Florida recount. The Agenda: —Butterfly ballots —Dimpled, hanging, and pregnant chads —Independent state legislature theory —Who would’ve won anyway? —Elián González —The Brooks Brothers riot —Was Bush v. Gore cynical? —Two First Amendment updates Show Notes: —A Statistical Assessment of Buchanan’s Vote in Palm Beach County —Bush v. Gore oral arguments —Bush v. Palm Beach County Canvassing Bd. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, I have been thinking about this podcast for four years. We get requests for it every now and then where someone says, why haven't you guys done Bush v Gore, the probably most famous Supreme Court decision other than Roe v Wade, and certainly in my lifetime.

And I kept sort of pushing it off of like, eh, I'm not feeling it. It's not the right time. And then Leon Nayfax Fiasco. This is the guy who did Slow Burn for those who remember about the Clint Lewinsky scandal about Watergate. He then did a podcast series called Fiasco. In the first season, Bush V Gore is about to be re-released to the public and the timing couldn't be better.

And I thought, wow, I mean, if Leon Nefok would come on the podcast and talk about this, then now is the time in the run up to election day. And David, we're going to talk to Leon Nefok about Bush V Gore. I'm so excited about this. I've been looking forward to this for days. You know, Bush V Gore, there's a funny story, a family story related to Bush V Gore, which is Nancy went into labor with our son

right in the middle of everything. And so I'm at the time I'm teaching at Cornell Law School and this, I promise you, this actually occurred. So Nancy is in labor. I was actually using Bush v. Gore as the case was unfolding in my law school class. So I had the class divided like half and half, arguing different elements of it.

And so I was up on these issues at that time. I'm not as up now in 2024, but I was up on them. So the next thing I know, I have a cluster of doctors around me while I am explaining all of the legal issues around Bush v Gore. Nancy is in labor, Sarah. And drafting up divorce papers in her head. And at one point literally says, time out, there's a woman in labor here, which immediately shamed me into shutting up. Yes.

And the doctors and the nurses who were there just for politics left the room, leaving only the doctor who was delivering Austin. Oh, it was a second kid? Oh, eh. I had a little impromptu seminar going in the delivery room with these doctors, which Nancy had to intervene to stop. But yeah, I've been looking forward to this for a while. I remember the sense.

We'll walk through all of the history of this case before we talk to Leon to refresh everyone's memory. But when you're just like living through the day to day, I remember thinking there's no way Bush can win this thing. He starts ahead by, you know, over 500 votes, but each day they're sort of finding more Gore votes than Bush votes. And you're just like, I don't, I don't see how this can end any other way. And it felt to me, at least very inevitable that Gore was going to be the next president. And I think that's part of what made Bush v. Gore feel shocking is that it did reverse that expectation sense.

On the one hand, Bush did start ahead. On the other hand, it felt like Gore was creeping, creeping at plenty pace to overtake him. And then the Supreme Court is going to be just decided and really decide who's going to be the next president. Worth mentioning, by the way, three current Supreme Court justices were involved in Bush v. Gore. Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett were all players on the legal team on the Bush side. Justice Barrett was the most junior and a relatively small role,

but still she's there down in Florida. And David, I thought I would tell my own Bush Vigor-esque story. So in 2012, in Palm Beach County, of all places, they misprinted the ballots, 30,000 or so ballots by my memory. And they're absentee ballots they're voted on and they can't be run through the machine. And so we have a two week recount basically in Palm Beach County ahead of the 2012 election because they're absentee ballots. Everyone, you know, we already know they need to be counted. And they have to basically take the misprinted ballots that have been filled out and by hand, put them

on new correctly printed ballots. And so we are sitting in a warehouse with this team of lawyers and shout out to many people. I know listening to this podcast who are in that warehouse, who I still consider close and wonderful friends. And you had partisan poll watchers representing the campaigns watch each table as two nonpartisan election officials had to identify who the person voted for and then market on the correct ballot. It was a fiasco in the fact that it was Palm Beach County again. It was like, are you kidding me? Of course, nothing mattered in 2012. So nobody really thought much about

it later. But it's all to say, these things do happen every cycle. And I feel like when they do matter, everyone thinks it's a conspiracy, not realizing that they happen every time. It's just that you don't care about them when it's not close. And now correct me if I'm wrong, Sarah, but isn't 2000 really the origin of red and blue America? Because it used to be the colors would switch depending on incumbency. And then it got so imprinted for so many weeks

that Republican is red and Democrats are blue. That's the origin right there, red and blue America. And the other interesting thing about this is other than, Oh, so if you're going back to 2000, we've only had one actual like real clear crystal clear, uh, big victory in presidential politics since then, and that was Oh eight. So you had 2000, the closest to the close, you had 04 close enough to where there was weeks of democratic conspiracy theories

around the voting machines in Ohio. Then you had a clear win in 08. You had a clear win in 2012, but close. The percentages were very close. We all know about 2016, a few thousand votes in three states, 2020, a few thousand votes in two or three states. This really ushered in the modern era of hyper-polarized, very close

presidential election voting. And that's the norm to us now. It was not the norm for an entire generation before 2000. And something about this may be, Sarah, and I don't know if this is knowable, I do wonder if something about the intensity of that post-election fight helped kind of cement and harden political attitudes going forward. I don't know, I mean, I'm just kind of speculating. Well, it made careers.

I mean, you think about talk radio on the one hand and the role of cable news. I mean, certainly it had an effect on media and distrust of media, as we'll talk about with Leon. The media got this one wrong, but like repeatedly, they called it for go Gore while the polls were still open in Florida and panhandle because there's two different time zones, which I gotta say, forget who they called it for. Calling a race when the polls are still open

is an egregious, ethical lapse. And it happens a lot still. And I get so angry about it. And then they miscalled it for Bush. And then they kept taking it back. I mean, and this is really how exit polls start getting some side eye. But let's walk through the legal part of this. Cause this is a legal podcast, David. It is, it is. Let's walk through what people are gonna kind of remember

from this. First of all, there's the butterfly ballot. That's the Palm Beach County ballot, where instead of having the names all down a vertical list, you switch sides. So on the left, it had George Bush's name. Then on the right, it had Pap Buchanan's name. Then on the left again, below George Bush's name, it had Al Gore's name. And then that would have three punch marks in the center. The first punch mark is for Bush. The second punch mark is for Buchanan. And the third punch mark is for Gore.

And so what happened was you had a lot of elderly voters, elderly Jewish voters, as it turned out in Palm Beach County, who said afterward that they punched the second hole because Al Gore, they saw as the second name, but that means they actually voted for Pat Buchanan. When we go back and look at the numbers statistically, Pat Buchanan massively overperformed. If you just were to use statistical analysis, it looks like he probably got somewhere between two and 3000 votes that he would not have gotten, but for that odd ballot. Again, comparing Palm Beach County to the other counties that did not use that ballot.

Okay. Everyone remembers the butterfly ballot scandal, but I think most people have forgotten that it was legally irrelevant because there was no way to know which votes were wrong or like, okay, they voted wrong, but I'm sure some other people voted wrong in other counties. Like we can't undo your wrong vote. And so these people try to sign affidavits, but very quickly the Gore team abandoned the butterfly ballot argument at all

because there was really nothing legally to do about people not voting correctly after the fact. Messing up, just messing up, yeah. This is a point that I made in the run-up or in the aftermath of the 2020 election. As a campaign, your responsibility is to object ahead of time. Every campaign gets and can request

and is able to see the ballot ahead of time and they can lodge objections ahead of time. So one of my jobs in 2012 was to look at all these ballots and make sure that they weren't butterfly ballots, like they had been there in Palm Beach County. And we should put a picture of the butterfly ballot in the show notes so you can actually see. And just to put some hard numbers around this,

there is a paper we can also put in the show notes that talked about the expectation for Buchanan in Palm Beach County was about 1300 votes. That that matched his overall, that would have matched his overall vote share in the rest of the state, but he got 3,407 votes in Palm Beach County. So more than twice as many of his expected sort of if you compare to the rest of the county overall share and even that maybe is over estimating Buchanan support in Palm Beach County because Palm Beach County was much more democratic. And Jewish and he was kind of known to say anti-Semitic things.

Exactly. Exactly. So that's just putting some hard numbers around it. I think you'll also look at the butterfly ballot and think to yourself, that's not that confusing. And yeah, most people weren't confused. But based on those numbers, David, about 2,000 were confused, maybe more. And so we're dealing with sort of, you know, yeah, there were some elderly people who were confused. And I think you'll look at and say, like, yeah, if you weren't paying attention, you could see why you would just punch the second one for Gore. Okay, legally irrelevant. Next, for the state, you take a stylus

and you punch through the hole, right? Where the mark is. Then that ballot is spit out with the holes in it and you run that through a machine. It's like a Scantron, but instead of filling in a bubble with a number two pencil, you punch out the bubble with a stylus. Well, sometimes that didn't work the way it's supposed to and the machine couldn't read the ballot. So what you get on election night is the number of the ballots that the machines counted in

the state. That's where Bush is up 500 plus votes. Some of the ballots, the machine said it couldn't read because it couldn't register any vote for president. That's the Bush is up 500 plus votes. Some of the ballots the machine said it couldn't read because it couldn't register any vote for president. That's the under votes. No vote is registered by the machine. Then there are over votes, meaning the machine registered more than one vote for president. You somehow thought you punched out two or that you wrote in a name. So for instance, if you punched out Bush with the stylus and then wrote, go George go, that would register as an overvote. Or if you put an X in the write-in area or you wrote N.A. for not applicable or something, that is all going to get rejected by the machine. So those are the overvotes. Then we have the overseas absentee ballots. This is something everyone now knows a ton about.

The overseas absentee ballots are gonna be from any ex-pat who's registered and eligible to vote. It's gonna include a lot of military people. When those ballots come back, they often come back after the deadline, like after election day. But as long as they're stamped before election day, you count them. What happens if they're not stamped? And that's, you know, again, something I think now we're all

very comfortable with, but in 2000, that's going to be a big question. So those are all going to be the legal questions. All right. Let's spend a second on the under votes. So this is where the machine says there's no vote for president. There's four corners to a Chad. If one corner is attached, the machine doesn't read it. And we call that a hanging Chad. If two corners are attached, the machine doesn't read it. And we call that a swinging Chad. It's like a swinging door, right? If three corners are attached, we call that a pregnant Chad.

And if four corners are attached, it's a dimpled Chad. And the dimpled Chad's even among those. Now, are these pre-existing terms or did they just come up in the court? Were they created? I don't know. Because I remember being fluent in chattery. That's right. And so you would, for the dimple chads, some counties then basically would hold it up to the light.

And the rule was if you could see light, that that showed voter intent, if light shone through the dimple. Others had to have at least one corner missing. Unfortunately, in some of these, like in Palm Beach County, for instance, they started with the standard that it has to have at least one corner missing, and then reverted to a dimple Chad standard, evolved into a dimpled Chad standard, realized that they had evolved standards, started over, but then had even sort of weirder standards

at that point. For instance, David, and this is a little hard to explain, but in any given ballot, if the person had punched through other offices correctly, but then there was only a dimple for president, they would not count that dimple unless it was, you know, hanging or swinging or whatever. It had to be missing a corner in that case.

Cause clearly they knew how to work the stylus. But if other offices also only had a dimple, then they would count the dimple for that ballot. So like the individual ballots had different standards and this was in different counties. Okay. So a few questions are going to come up here or strategic questions, I guess. One is, what is a legal vote in Florida? Does a legal vote mean that it's only those that the machine can read? If the machine can't read it, then you didn't legally vote. You might have

attempted to vote, but you didn't because the machine can't read it. Is that the machine can read. If the machine can't read it, then you didn't legally vote. You might have attempted to vote, but you didn't because the machine can't read it. Is that the standard we're going to use? Or anyone who attempted to vote, we're gonna try to determine the intention of the voter. Florida law is a little bit, well, it was contested in all of this because on the one hand,

it says that you only do a hand recount for a tabulation error. Like the machine's broken. You don't have the machine. The machine isn't counting right. Then you can do a hand recount. In that case, you try to discern the intent of the voter. One of the issues was, but the machines aren't broken.

The machines did their job. They counted all the votes that machines can read. That's a very uniform standard that we used. Of course, they're like, well, we have all these ballots and many of them are readable. Like if they have a hanging chat, there's just one corner on there and the machine couldn't read it. We know who that person wanted to vote for. Why aren't we counting that ballot? All right. So the Gore team is going to make this strategic decision.

And as we will learn strategic error, I think, to ask for a hand count of only under votes in only four counties, Miami, Dade, Broward, Palm Beach, and Volusia. It's not gonna go well. It's a mess. This is gonna lead to the first Supreme Court decision, Bush versus Palm Beach County, where the US Supreme Court decision, Bush versus Palm Beach County, where the US Supreme Court basically says, what are y'all doing down there? Florida Supreme Court, we don't understand. Vacated, remanded. Please try again on this deadline issue and what exactly, what statute you're using for this, what is your authority to do this?

And the Florida Supreme Court, which is six Democratic appointees and one independent appointee, just ignores it. Like Bush versus Palm Beach County just never happened. The Florida Supreme Court is then gonna have a second decision in which they say, look, the four county recount thing isn't working. And I'll note at that point that it's literally not working in the sense that Palm Beach County has started over a few times. Miami Dade already

says they just can't finish. It's a hot mess. Volusia and Broward actually do okay. And the Florida Supreme Court then, there's clearly not going to be enough votes for Gore, I will note at that point, says, okay, we actually need to do a hand recount in every county in Florida of just the under votes. That's what's going to go to the US Supreme Court. They're going to first have an injunction saying, stop, we're taking the case. This is going to take about four days. So don't do any of the counting during those four days or you don't have to. And we'll see. Now the irreparable harm question on that was pretty interesting, David, because the Gore team's argument is what's the irreparable harm to the Bush folks to count these ballots?

Whether we end up putting them in the certification or not at the end, fine. But counting them doesn't cause any irreparable harm. And the Bush team said, yeah, because if he ends up winning, because you decide that we're not going to count these ballots that were recounted, no one's going to accept that victory. It's going to undermine his presidency. And it puts a lot of pressure on the courts to have to accept the votes if they were counted, even if that count was not a lawful process. Okay. So that's the injunction. They get like hours to brief this to the court. And then 24 hours later, they are in front of the court doing this oral argument. And David, have you listened to the oral argument in 20 years?

I have not. No, I have not. So I went back and listened to it and several things will jump out at you. First, the process, of course, of the oral argument itself is totally different because we've changed the process since COVID. So each side, you know, it's a free for all, the justices are jumping in, there's no seriatim questioning, and because it's a request, the time limits are strictly enforced. Yeah. So you have Ted Olson arguing for Bush. He comes up first.

You then have this guy arguing for the Florida Secretary of State as kind of an intervener representing her position. He's the guy who's going to become famous for mixing up the justices. And finally, when Scalia jumps in with a question, he starts with, hi, I'm Justice Scalia. And like the crowd like laughs a lot, breaks some of the tension in the room. And then you have David Boyes arguing for Gore. The other thing that's gonna stand out to you

about the oral argument, David, is how incredibly young some of these justices that we thought of their voices being quite different sound in 2000. Ruth Bader Ginsburg sounds nothing like the Ruth Bader Ginsburg that you're going to think of from really 2010 forward. The very soft voice, the very slow cadence, the crackling, like all of that, like doesn't exist in 2000. You would not recognize her voice. Same with several other justices. And the oral argument, David, is almost entirely about

the independent state legislature theory, or what we're gonna call the independent state legislature theory. It's sort of like the Moore decision got two oral arguments 20 years apart. And it's fascinating because it kind of is the same oral argument. Yeah, you know, what's interesting about this case is

you go back through this. And you know, this is one thing that I'm really looking forward to and talking about, you know, in the context of the fiasco. In the context of the fiasco podcast, is you had the Democrats in context of the Fiasco podcast, is you had the Democrats in charge of the judiciary in Florida, and you had the Republicans in charge of the elected branches of government. And it was a tit for tat at all stages.

The Republican elected officials, whether it was Catherine Harris, who was then the Secretary of State, or the Republican legislature, was enforcing certification deadlines, for example. The Florida Supreme Court was coming in and saying, no, no, no, no, we're gonna extend the deadlines.

There was this seesaw back and forth. And one of the things that you think about is, well, oh, partisan actors are being partisan, right? In the moment, I guarantee you the partisan actors are not sitting there going, what do Republicans want me to do, I shall do it. Or what do Democrats want me to do, I shall do it. They're seeing this sincerely within their frame,

within their frame of reference. And now I do think there are some just nakedly political partisan folks and some of those folks sort of emerged after Bush v. Gore and have been players in national government since. But, you know, one of the interesting things about this moment in 2000, which has its replication in our current contentious moment,

is the way in which partisanship can so embed itself that it presents itself to you as being objective. You are experiencing your own partisanship as objective and rational and you get that sense in going back through this. There's always an argument on both sides that makes sense here that you can see with the benefit of 24 years of hindsight. In the moment, I will tell you, because this is a fun trip down memory lane for me, because this was when I was a much more partisan person.

In the moment, I had trouble seeing the validity of a lot of the democratic arguments here. I just thought they're nakedly partisan. And Catherine Harris is the Socrates of our time, man. No, that's an exaggeration. But this Republican legislature, these Republican elected officials, they're playing it straight.

They're shooting straight. And it is just interesting how when you're removed enough from a moment that you can go back and experience it differently when you're diving into it. Hi, I'm Chris Stierwald and I have devoted my vocational life for decades to my fascination with politics.

I love it. But I don't think you should have to in order to be a good citizen of this great republic. That's why every week I publish Stierwalt on politics, my newsletter at the dispatch intended to make sense of and provide context for this crazy election year without dragging you into the muck. That's why we are offering for a limited time only 10% off of your dispatch subscription. All you have to do is enter the magic code. That's Pundit10 and you can get this limited time offer for 10% off of your subscription. And if you're already a subscriber make sure

you go to the dispatch.com, click on newsletters and sign up for Steyer Wald on politics. I'll tell you listening to the oral argument and we'll get to the opinions in a second, but just listen to the oral argument. I really found myself struggling with what I was mentioning before about like, well, under Florida law, a legal vote is one that the machine can read. And unless the machine's broken, we're done. You can run them back through the machine. Maybe some of those hanging chads will come off. Great or not. And this did happen when they ran ballots back to the machine. The vote numbers did change a little, which is sort of its own interesting problem. And something that I think is people are very aware of heading into 2024 and this election season.

It's why you've seen the Georgia State Election Board try to change some of the procedures about requiring the numbers coming out of the tabulation to match the hand count numbers before they can certify anything. Something that I promise you will take weeks and weeks. If you've ever had people just count to like 30 together, it takes like three tries. It could be a real mess to hand people hundreds of thousands of ballots and make three people agree on the exact number of how many ballots are in that pile. And so I was sort of stuck in the argument because on the one hand, I don't buy into

the independent state legislature theory. We've talked about it a lot. The US Constitution say the manner of elections shall be determined by state legislatures, but the manner of the government, if you will, which is also determined by the state constitutions, which are amended and voted on and everything else by state legislatures, include a judicial process. And so just because a judiciary rules on something related to the election, I don't think violates the Constitution. The argument in Moore was that like, no, only the state legislature can affect election rules. protection rules. During the pandemic, of course, state courts were saying that, no, we're going to extend the times, or the statute actually says this and allows for this about

absentee ballot dates, stuff like that. The equal protection argument, they basically don't touch on at all this idea that your ballot's being counted differently in different places. Again, I think if you're making an equal protection argument, you come back to my argument, which is, well, the protection is the machines. We say that if the machine can read your vote, it's a vote. Once we introduce humans and in Broward, they're counting dimpled chads and in Palm Beach County, they're not counting dimpled chads, but then they are, but then they're not, but then they start over. I mean, huge mess. I don't know. I was left very unsatisfied by the

oral argument, which I sort of liked because it's clear that they didn't get to prepare for it. There were no moots heading into Bush v Gore. They had 24 hours. It feels much more like a conversation when an advocate says, I haven't thought of that question. You actually believe them. Whereas now when I hear an advocate say that, what I hear is I don't want to answer that question. I haven't thought of that. We definitely came up in the mood and what a new and novel thought judge. Right. I mean, you've been through 10 moods. I know you've been through 10 moods. You're telling me that one didn't come up. Of course it did. But here, you know, I'm like, Oh, I bet he didn't think of that because it's a little bit, you know, of a side note. Okay. so then the Supreme Court is gonna come out

with its opinion and remember at this point at the Supreme Court, the US Supreme Court, there are seven Republican appointees. So you have Rehnquist as the Chief Justice, Scalia, Thomas, Stevens, Souter, O'Connor, Kennedy, Breyer and Ginsburg. So it's seven, two by sort of partisan appointments. Wait, Ginsburg and Stevens were in the minority.

Yeah, but it's seven to bipartisan appointments. Oh, right, right, right. OK. So it's seven Republican appointed justices and two justices appointed by Democratic presidents. So now I'm going to explain the breakdown of the opinions. Seven to with now Breyer and Stevens, so one Democratic appointed justice and one Republican appointed justice in the dissent, 7-2, they hold that there's an equal protection violation when the Florida Supreme Court set a standard for a statewide recount of only undercounts that

just said determine the intention of the voter. That that was a standardless standard and it would lead to no similar standards across counties. That was an equal protection violation. That was seven justices. Three justices, Rehnquist, Scalia, and Thomas have a concurrence. It's like, yeah, sure it is. But also this independent, what the Florida Supreme Court is doing here is not acting in its judicial role. And I would argue that this concurrence falls somewhere between an independent state legislature theory and just arbitrary and capricious.

And in the oral argument, it comes up several times in that Bush versus Palm Beach County case, the first Bush v.ecore case to come to the Supreme Court after the election, remember there's two competing statutes in Florida. One says that Katherine Harris shall ignore late tallies and the other one says she may ignore late tallies. The Florida Supreme Court basically says, nope, it's may and also she can't ignore them. What you have are some pretty frustrated Supreme Court justices saying, boy, the Florida Supreme Court using its quote unquote equitable powers here, after the Gore team never asked

for a statewide recount, they, sua sponte, make their own statewide recount, but only of under votes with a standard on the intention of the voter that gives no guidance, are they really acting as a court here? Or are they doing things that the legislature, if the legislature had passed a bill that said that after the election, it would have been unlawful. And so why can the court do something that the legislature couldn't?

That actually comes up a ton during the oral argument. And that's really what that concurrence is gonna be with Rehnquist, Scalia, and Thomas. Okay, now the question is, Scalia, and Thomas. Okay? Now the question is, what do you do about it? Seven justices say, this ain't working. And it's because the Florida Supreme Court doesn't have a standard for this statewide recount.

So four of the justices are like, okay, well then let the Florida Supreme Court make a new standard. They've got a couple of days left. Let's see if they can do it. And five justices, and this is the, you know, sort of as we know it, the five for Bush v. Gore with Rehnquist, Scalia, Thomas, Kennedy, and O'Connor in the majority saying, the deadline's already passed. You ignored us on Bush v Palm Beach County when we told you to deal with this deadline problem.

You didn't. And it's not that you have any time left. You have no time left. The time left you have is the relatively made up date that you gave yourself. You can't cut into the safe harbor time that Florida by statute has. The remedy is nothing. The remedy is the buzzer rang several days ago, and the count as it stands right now is the certified count. So that's Bush v. Gore in a nutshell, David. And something that I definitely want to talk about with Leon as we bring him in here is

that we've now counted every ballot in Florida from the 2000 election. And I don't just mean counted. I mean the databases filled with details of every single ballot because when news organizations came in after and there were three different recounts conducted by news organizations, they obviously weren't allowed to actually manipulate ballots and do stuff to them. They basically could just code what the ballots looked like, what type of chat it was, whether you could see light through it, how many corners were sticking, under votes, over votes, write-in problems, et cetera.

And so you can now run any type of recount you want for the Florida 2000 election using this database and figure out how many different ways Gore could have won and how many different ways Bush could have won. And I just mean, you guys will know how much I love this. Generally speaking, everything the Democrats wanted would have resulted in a Bush victory and everything that the Bush team was complaining about. Now, they didn't want the recount at all, of course, but if the Bush team had gotten their way, if there had to be a recount, Gore would have won. So the strictest standards that you only count chads that are hanging by three,

sorry, that are loose by three corners, not touching by three corners, only have one corner attached that helped Gore. If you only do the four counties that Gore wanted. To help Bush, that's a Bush win. Yeah. It's incredible that both sides were just wrong and so fervently arguing for basically the other side to win, but they didn't know. So one other thing I want to point out before we go over to Leon is this is an interesting microcosm of the way in which we view the Supreme Court and how our perceptions of the Supreme Court are overly shaped by exactly what the Supreme Court does and under-shaped by everything that happens before it gets to the court.

So a lot of people look at Bush v. Gore in 2000 and go, look at what the Supreme Court did to interfere with the election. So a lot of Democrats have a real beef with the Supreme Court around Bush v. Gore. And look, I mean, you know, I think it's a tough, they were in a tough position, a tough position. Think about the cascading series of failures at the elected branches of government, in the judiciary in Florida that got it to the Supreme Court. What an unbelievable mess, just an unbelievable mess.

This is not the only time this happens before issues get before the Supreme Court of the United States. And so a lot of times people are very frustrated at the court and very angry at the court when the court has been put in a position that is virtually impossible. Now they have to make a decision. They're the final decider. They have to exercise judgment. They have to make the decision.

But they have been put in, if you're concerned about court legitimacy, court consensus about the court, they have been put in an awful position. And I guess here's the punchline. If, you know, for where the court lost legitimacy in people's eyes, if the court hadn't taken the case in the first place, which people complain about, they shouldn't have gotten involved. Bush would have won. If they had remanded the case back to the Florida Supreme Court,

and the recount that the Florida Supreme Court had demanded had happened, Bush would have won. If the Gore recount alone had happened, Bush would have won. And I guess what I really love about this is as it turns out, the Supreme the US Supreme Court's involvement in Bush v Gore did not matter to the outcome. Right. Yeah. No, you're you're exactly exactly right. It's the the only circumstance under where Gore would have won was a scenario that wasn't actually before the court

at the moment. That's right. It wasn't an option. Now the Florida Supreme Court could have fashioned that remedy, but this is where you get to the partisan point, David. There's a reason they only wanted to do the undercounts. The Gore team, for whatever reason, thought the undercounts

were more likely to favor Gore than the overcounts. But there were, and I'm going to make these numbers up a little bit, there were a little over 60,000 under vote ballots, and there were 110,000 over vote ballots. And so when the Florida Supreme Court only asked for the recount of the under votes, you hear the US Supreme Court Justice and oral argument being like,

why would that be other than partisan advantage? Because if you're ordering a statewide recount, why would we not recount all of the ballots that the machine couldn't read? And David Boyce, who's representing Al Gore is like, well, there's fewer of these ballots and we think the over votes are going to be so obviously not counted by the machine. Like if the machine said there were more than one vote, like us looking at that by hand

isn't going to help. It's like, then why wouldn't we just do it? It should be really, really fast. If there's two things punched, we toss it moving on. It's not going to be like the under votes where we're looking at a Chad still in place and trying to like hold it up to the light, which takes forever per ballot. The partisan blinders are actually what prevented the Gore team from asking for the remedy that would have resulted in their win. And David, I have, I want to read one

paragraph that I thought was interesting from Bush v Gore and do a little, a quick equal protection versus due process. Okay. So this is the seven two part of the opinion. The individual citizen has no federal constitutional right to vote for electors for president of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.

The state legislature's power to select the manner for appointing electors is plenary. It may, if it so chooses, select the electorals itself, which indeed was the manner used by state legislatures in several states for many years after the framing of our Constitution. History has now favored the voter, and in each of the several states, the citizens themselves vote for presidential electors. When the state legislature vests the right to vote for president and its people, the right to vote as the legislature has prescribed is fundamental. And one source of its fundamental nature lies in the equal weight accorded to each vote

and equal dignity owed to each voter. The state, of course, after granting the franchise in the special context of Article 2, can take back the power to appoint electors. The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another." I don't know that I agree with that. This is like the basis for the whole opinion.

So obviously I agree of course, that state legislatures, the power is vested in the state legislature. They can choose the electors themselves. I just think that's important to point out and I'm glad they pointed it out. But I think of equal protection, not as simply by arbitrary and disparate treatment

value one person's vote over that of another. not as simply by arbitrary and disparate treatment value one person's vote over that of another, I would think that would have to be systematically valuing one type of person's vote over another. And I don't think that's what was happening here. It was just standardless, which to me is a due process violation. As in there has to be a process. That process has to have standards to count. Otherwise, if we just like, you know, throw the votes down the stairs and the votes closest to

the bottom get counted and the votes at the top don't count, that's not an equal protection problem to me. That's a process problem to me. And I've never totally understood why equal protection, when I think that people roll their eyes at that for good reason. Different counties are allowed to have different types of voting. Different states are allowed to have different types of voting. By definition, that will quote unquote value one person's vote over another. For instance, if you use hand counted ballots in one county and machine counted ballots

in another, the machine counted county is going to have more error, as in more people's ballots counted ballots in another. The machine counted county is gonna have fewer, is gonna have more error, as in more people's ballots will get tossed out, but it's not for type of person voting. So machine counted will have more error than human counting? Well, in my theory, yes, because machines will reject ballots in this punch card system, yes, because the machines won't count anything that has this Chad error. Whereas if you were hand counting them, you would be able to count anything that has this Chad error. Whereas

if you were hand counting them, you would be able to count some of these under vote and over votes that were just pure machine error. They're clear that the Chad is gone or not gone and the machine just messed up. So the essence of equal protection is similarly situated people are treated as similarly. That is the essence of equal protection. So in America's polyglot electoral system, the way in which that tends to work is if you are similarly situated within your say precinct or county. In other words, so if I live in a county that has my, I believe this is true. My, uh, it was true in 2020 where it was Dominion voting machines in Williamson County, Tennessee, which I cannot even tell you how fun it was in the 2020 contest

where people are saying Dominion is the worst. And I said, did you vote? What was your experience in voting? He says, it was, you know, I got a, I pressed in the machine, but I got a hand, a ballot out where I could read it, and then I hand it over, it worked great. I said, that's Dominion, okay. And so if you have Dominion machines in say, Williamson County, where I live, and you do not in Murray County,

that's not an equal protection violation because the citizens of Williamson County are all treated the same with the same voting machine, the same tabulation method, and the citizens of Williamson County are all treated the same with the same voting machine, the same tabulation method. And the citizens of Murray County are all treated the same with their same voting machine and the equal protection violation. Even if we know that in Murray County, the machines have a 6% error rate and in Williamson County, they have a 4% error rate.

That's a political matter for the leaders of Williamson and Murray counties to work out, do we want to have the, do we want to replace our machines if we have the budget with the ones with the lower error rate? That is a political call to be made. And by the way, in Florida in 2000, I believe the error rate was about 2%.

So that's traditionally sort of the, you take the pre,, precinct, county, whatever that you're in, and see if everybody who's within that county is going through a similar process with the same kinds. But if you, for example, said, well, if they're female voters, we don't count, ironically enough, any pregnant chads.

But if there's male voters, we count pregnant chads, that would be an equal protection violation. But the idea that all the voters in this county are running with punch cards, whereas another county has, you know, is fills in bubbles and uses like a scantron, that's not equal protection violation. So I think Sarah, when you're talking about this, there's a ton to what you're saying because the bottom line is in the American electoral process, depending on where you live,

the way in which your vote is counted is very different. And it can be very different, not just from state to state, but from county to county within the state. And that's not generally been deemed an equal protection violation. I think, you know, one of the differences here was, hey, you're taking the select number of counties and when the differences is,

you're creating an artificial process that is not the normal process for counting votes. The Florida Supreme Court had stepped in, said the normal process for counting votes. The Florida Supreme Court had stepped in, said the normal process of certification, the normal deadlines for certification, the normal way in which we do this is all suspended, and we're doing this in the new way with the new deadline that we are defining.

And that removed it all from the normal way in which presidential votes are counted. And in my mind, that's what introduces the equal protection issue, which is all of a sudden, wait a minute, this is something else that's totally new. And so I have more sympathy for the equal protection argument that maybe you might have, because it is a brand new process

that the Florida Supreme Court was mandating. But I do find it very intriguing what you're saying about due process. I think my, I'm not dismissing any of them, but I think my order of operation is one, there's a due process problem here. Two, the Supreme Court has potentially usurped the role of the legislature in a way that's very different,

I think, than what was happening in North Carolina in the Moore case that's gonna come along 20 years later, where the Supreme Court in that case was acting as a Supreme Court, but they, in doing so, were changing election rules. Basically, do the courts have any role or can only the legislature do election stuff? So in some ways, Moore was a better teed up question for the independent state legislature theory. But I think in the Florida Bush v. Gore case, there's some real questions about what the Supreme Court of Florida was doing and with what power they were acting. They just kept referring to their equitable powers and equitable power just means, you know, we've identified a problem and now we get to basically

act legislatively to create a solution because someone has to. And then three, I would get to equal protection. I'm not saying it's totally meritless. Obviously there's a whole opinion and it's, there it is. But I just find it the least persuasive of the three options. Yeah, interesting, interesting. I found the equal protection analysis persuasive and what's so unfortunate to me, interesting, interesting. I found the equal protection analysis persuasive. And what's so unfortunate to me, Sarah, looking back in hindsight is that you could not keep

together that 7-2 in the remedy portion. The fact that it went to a 5-4 on the remedy portion that just simply there's not enough time, we're calling it game over. Well, you want to shake through history and tell them it won't matter. So for the sake of the institution, fine, let them try to do whatever they want. First of all, I don't think in a million years they were going to finish the recount in time for the deadline anyway. So let them try and they'll fail.

If they don't fail, it's not going to matter. It's not going gonna change the outcome. So like dear Supreme Court, don't put yourself there. Don't put yourself in front of that train. But there it is. And with that, David, I wanna talk about some of the more like atmospherics and political parts. And I don't know the putting together of a podcast

about Bush v Gore. Should we bring in Leon? Let's do it. Leon Nefock of Fiasco, I can't believe you're joining us here to finish our conversation about Bush V. Gore. Your first season of Fiasco was Bush V. Gore, and what a fiasco.

That's right. I remember when we first named the show, we had just left Slowburn where we had made two seasons about Watergate, then about Clinton and Lewinsky. We were trying to name our new show and one of our colleagues, Madeleine Kaplan, said fiasco and we loved it right away. And we were like, that's it, that's it, perfect. And then we sat down as we like, remember we moved into our office and we sat, one of us sat down to write the first email to a potential interview subject, subject line, we would like to interview you for our show called Fiasco. And we were like, oh no, what

have we done? Because obviously their question was, well, what do you think the fiasco was? And Katherine Harris took issue with it. You interviewed extensively the Secretary of State Katherine Harris, and she argued, no, not a fiasco. She said the fiasco was the media coverage of it. I think there were any number of fiascos. It was fiascos all the way down. So I want to sort of start where your podcast starts,

which is amazing. I mean, you start with finding a small hand peeking out of an inner tube in the middle of the Gulf of Mexico. That's right. Elian Gonzalez, whose mother had died in the process of escaping from Cuba and into Florida. And this guy whom we interviewed, Donato Del Rimpel, was there fishing with his brother, I think. And he spotted this kid in an inner tube and he pulled him out. And then Elion became this flashpoint in Miami politics, which, you know, sorry if I'm going

into too much detail here, but it's important because the reason we start the show there is that at least in one reading, it cost Gore a great deal, a great number of votes in Miami because he had waffled on taking a position on whether Elion should be returned to Cuba or allowed to stay in America, which alienated the Cuban American population in Miami. Anyway, that's why we started the show in the ocean. Can we just pause on that just briefly as a symbol of how much things have changed? So 1998, the Republicans are keep the immigrant in America. You democratic ingrates.

And yeah, you're hard to hard to say who we're wanting to keep in America now. But yeah, very, very different political dynamic. Well, and it was sort of fascinating to start with that because I sort of looked down at my podcast player and was like, wait, we could have a whole season on the Elian Gonzales fiasco. Yeah, there's actually there's an entire podcast that just came out that I haven't listened to yet, but that I'm excited to check out called Chess Piece, the Elian Gonzales story. Well, and he's gone on to basically be in Cuba's parliament.

I mean, I'm like one of those people where like I'm listening to something. I didn't even know that. Wow. Yeah. But also going down like a rabbit hole on Wikipedia or news sources to try to figure out. Like so in the last week, I've done deep dives on Ilian Gonzalez and the Kent State Massacre anyway. But it reminded me of this thing that Mandy Grunwald, one of Hillary Clinton's senior advisors said in the wake of the 2016 loss from the Clinton team. And she says, if you think you have a theory as to why Hillary Clinton lost in 2016, you're

right. Because it was such a close election. That it could have been anything. It could have been anything. So there's 50 different things that could have gone differently. And yes, any one of those would have made the difference. And that's sort of what you run through in Episode One. Ilyin Gonzales, the Air Force base, when you're talking about 500 votes, yeah, the weather, the types of ballots, all of it made a difference. And any one of those chess pieces, if you will, moving

could have prevented what came next. What was interesting though is that you, and this is I think just human nature, I didn't hear any of the things that could have pushed it further into Bush's camp, as in preventing it from being so close the other direction. Were there things you looked for around that? The one thing that comes to mind, and I think Catherine Harris mentioned it in our interview, was that when Florida was called for Gore pretty early in the evening on election night, that presumably repressed turnout to some extent. Like people maybe were driving to the polls and they were like, oh, well, Gore one, I guess I'm going to turn around. And I think some people, you know, I think there are like speculations

about how many people that might account for. But as you said, like when it, when the margin is so small, it makes a huge difference. I mean, I was reflecting on how Palm Beach County, it was the most famous fiasco inside this fiasco, the butterfly ballot. And by conservative estimates, I believe that there were like 3,000 or so votes that were clearly supposed to be Gore votes, but were re-handed votes. And that whole subplot ended up being totally irrelevant because it was just like an incurable problem.

There was just nothing to be done about it. But the reason I bring it up is that as we were getting deeper into making this show, like we were, the margins we were talking about were just like shrinking and shrinking. So there are scenes where like these, these county officials are sitting there manually recounting votes and you're hearing like, okay,

like after this many hours, like Gore had picked up nine votes and Bush had picked up three. And it's like nine votes, three votes, like this is what we're talking about. And then you hear that like Palm Beach, which again was sort of left off to the side of this whole thing, because there's nothing to be done about it. That's 3000 votes like Gore would have easily won if those votes had gone, you know, had been properly cast. And so I just remember realizing how quickly my scale, my sense of scale had sort of shrunk

to the point where like 3000 votes seems like, Oh God, it's so stupid that this happened because if not for that, like none of the twists and turns of these 36 days would have occurred. You know, there's a couple of things that stand out to me when you're reflecting back on this. I mean, one is just, just as an aside before I get to that, I was so looking forward to this podcast that I teach an undergraduate class called, and the title of class is literally

Why American Politics Went Insane. And one of the class periods is gonna be the 2000 election. So when I'm laying all the groundwork now of the great, the big sort, you know, social media, like all of these sort of big sociological factors. And then on top of this, you lay down some political factors, the, you know, the rise of Gingrich, the Lewinsky scandal, then rolling into Bush v. Gore in 2000. And what a couple of things stood out to me. One is I don't

think we could survive that now. I don't think we could survive Bush v Gore now in 2000. I think the country might end if that happens. And just sort of as you were going back on this. I find it remarkable in hindsight that at no point in my younger brain, did I think one side or the other is not going to ultimately accept the outcome that I felt like we were fighting hard, but that there was no question that somebody was gonna, whether the outcome was going to be the guard world. And when you were doing fiasco, was that your sense

sort of throughout that the underlying presumption on both sides here is that when the decider, whether it's the Supreme Court, Florida Supreme Court, whatever decides. Or the Vice President. Or the Vice President. Or the Vice President of the Senate.

Yes, yeah, when the decider decides, that's gonna be it. Did you have any sense contrary to that as you were diving back into it? Because my memory, which is now you know, now 24 years old, is that this was tough, this was hard, people were mad, but that nothing, nothing in this process was sort of shaking the country, if that makes sense. I think there were things that happened that were really destabilizing at the time. Even like I think the so-called Brooks Brothers Riot was kind of like a new thing.

I think ultimately the Supreme Court decision shook a lot of people's sense of institutions. I think the Supreme Court, if there's a story to be told about the Supreme Court losing legitimacy with people, I think it started in 2000 with that decision. Well, explain for a minute the Brooks Brothers riot, because that's you. We know what that is.

But an awful lot of listeners are wait, there was a riot by people wearing Brooks Brothers. Kind of feels a little like Woodstock, because I feel like in my 24 years since then, I've met way too many people who claim to have been at the Brooks Brothers riot. So the Brooks Brothers Riot took place during the manual recount of votes in Miami-Dade County. The canvassing boards, these so-called, these local bodies called the canvassing boards that were specific to each county were tasked with overseeing like a team of volunteers.

I don't know how they were vetted, but a team of volunteers. I don't know how they were vetted, but a team of volunteers to examine each vote by hand and determine whether it was an under vote, meaning someone had clearly tried to vote for someone, but it didn't go all the way through, and it didn't get counted by the machine, or an over vote, where it seemed like they voted for two people. If I'm remembering correctly, those

were much harder to cure in any way. But the under votes created all these interpretive questions about, is it a pregnant Chad? Is it a dimpled Chad? At what point can you read voter intent into it? The Miami-Dade people were going through this process, you know, tons and tons of ballots to go through. They're having these little debates. And there's questions about like, what's the standard and at some point, it seems like they're going to change the standard, they're going to maybe even restart the count with a looser standard, you know, the exact

chain of events is not entirely possible to reconstruct. But like, with some measure of coordination from a Republican operative named Brad Blakeman, according to Roger Stone, he was also in charge of it, but Brad Blakeman says that guy wasn't there. Basically, while the canvassing board in Miami Dade was debating what to do next, I believe this crowd of people, the reason the Brooks Riders riot is because they were all dressed in suits.

There were people from like DC they were like young you know conservative volunteers who sort of were moved to like erupt in this act of protest we talked to my friend Nicholas Coolish who was there as a reporter and who he made the observation that like they really looked like people who had never protested in college like they didn't really know how to do it. Anyway, the reason it's more than just like a footnote or curiosity is that it actually like by all accounts was responsible for the Miami Dade canvassing board to decide actually like we can't, we can't get this done in the time we

have and they abandoned the recount. And you know, was that because they were intimidated by this huge crowd of people like banging on the glass? It's hard to not to put two and two together. I wanted to talk about some of the polarizing aspects of this because Katherine Harris becomes the face of a lot of the what's going on in Florida. And certainly she's a Republican appointee. She's going to go on to run for Congress on the Republican side.

She's going to never give an inch, right? The deadline's the deadline. If you don't meet it, no. Because the Bush team doesn't want this recount. They're winning. Why would you ever want to recount anything at that point? So you have Harris as a Republican partisan, which she is, who just says she's following the rules.

Okay? Then on the other side, it feels like we ping pong back and forth between her and the Florida Supreme Court, which at this point is six Democratic appointees and one independent who's appointed by a Democratic and Republican governor somehow together. That one's a little bit weird. But basically, you have a Florida Supreme Court controlled by Democrats and they're doing the exact opposite, right?

Extend the deadline. If it's a choice between whether she, you know, shall ignore late votes or may ignore late votes, she must, it must be shall. The may versus, yeah. Sorry, it must be may. Yeah, the May versus shall. No, so we just keep ping ponging between these two partisan actors. And then you have the US Supreme Court basically like, you know, the two kids running to the US Supreme Court being like,

he hit me first. You know, she's touching me in the back of the car. And that's why you end up with two Supreme Court cases, both briefed within 24 hours and argued. And it creates this weird triangle, I guess, visually for me, with Harris and the Florida Supreme Court as sort of these lower parts. And then it just keeps going to the US Supreme Court, who I feel like really would like nothing

to do with this, if they could avoid it. The first time in- With the US Supreme Court? Yeah. The first time- But they took it. Yeah, they have to. That's their job.

But in Bush versus Palm Beach County, they send it back and are like, I don't know, figure this out. And then the second time they're like, just stop, this is done. We're literally turning the car around, the road trip is over. And you have this interview with Justice Stevens, who is 99 years old when you interview him. He passes away, I mean, months later, weeks later, really. Yeah, I can't remember exactly how long, but I think it was months. Yeah. Yeah. Which is remarkable to hear him reflect on it. You

have Sandra Day O'Connor and the role that she played as a swing vote on the court at that point. And with her death recently, we've heard Justice Kagan reflect on the role that Sandra Day O'Connor played on the court. And yet when you look at Bush v. Gore, it's a pretty complicated opinion and a complicated picture. You've got seven justices basically saying whatever's going on there doesn't work. They sign onto the equal protection part of the opinion, saying you can't use,

the Florida Supreme Court can't have a standard list recount for these under votes. But then you have Rehnquist and Scalia and Thomas signing on to their own piece, which is like, yeah, sure, equal protection, but maybe this whole independent state legislature, we're not sure that the Florida Supreme Court has the authority to do this to begin with. The state legislature set rules and now here's the Florida Supreme Court has the authority to do this to begin with. The state legislature set rules and now here's the Florida Supreme Court going off making new rules.

They couldn't have done it if they were the state legislature. So why can they do it if they're the court? Murr? And that really was what most of the oral argument was about. Then you've got the remedy problem where you now have four justices saying, okay, yeah, great.

So the Florida Supreme Court didn't set a standard. Let's go make them set a standard and let's see if they can do it in time. And five justices with Sandra Day O'Connor as the swing vote saying, we're not doing this anymore. We sent it back down to them before. They ignored us after we sent it back down the first time. Sandra Day O'Connor is furious during the oral argument about it. It's like the main thing that she's harping on. And here's the punchline that I want you to explain to everyone. Probably none of it mattered. Like when we actually then went back and did the recount,

what the Gore team asked for would have resulted in Bush winning. What the Florida Supreme Court asked for would have resulted in Bush winning. And what the Bush team was saying would be the only non equal protection violation, counting the under votes and the overvotes. Basically any ballot that wasn't able to be counted by a machine statewide would have resulted in Gore winning. Which is wild because the big beef, the big beef that the Republicans had in that moment, which was something, you know, this this was back in definitely in my Republican days was,

wait a minute, this whole thing is being conducted according to Gore's blueprint. Why are we only recounting these heavily Democratic counties? This is you mean those four, you know, they picked because they picked four that were they requested recounts. Palm Beach, Miami, Broward, Volusia. Right right. So a lot of Republicans are jumping up and down saying this is fundamentally wrong.

If you're recounting, you got to recount the whole thing. Don't just pick with a 500 or so vote margin. Don't just pick the most democratic counties or three of the four most democratic or some mix of the most democratic and say, this is where we're going to find the true count in the election. And then at the end of the time, when it's all over, the Gore plan would have resulted in Gore winning. I mean, Bush winning the Bush plan would have resulted in Gore winning. What a mess.

You know, you open the last episode with Sandra Day O'Connor and that her husband has just been diagnosed with Alzheimer's right before this is going to take place and that she wants to retire. So she'd really like a Republican president in the White House so that she can retire. And then Bush v Gore comes up. She's the deciding vote to shut down the recount to basically tell Florida they're out of time and therefore the game's over. And that's the very thing that means that she can't retire until there's another election. And it's interesting because really what you're laying out is at least this theory that she

very much voted against her own personal interest as that fifth vote. She wanted to retire by voting that way. It meant that she wasn't going to get to retire for four more years. Well, look, I think it's impossible to know what was motivating her. As with most people in this story, I kind of believe that they believe their version of it. I don't think there's a lot of people in the story who like knowingly or like self consciously did something corrupt or made a decision on a partisan basis.

I think everyone kind of thinks that they were doing the right thing. Maybe I'm, do I sound like incredibly not using that? No, no one wakes up thinking they're the bad guy in their own story. Everyone thinks they're the good guy. Well, so we so, so, um, we interviewed Katherine Harris. Um, you know, she warned me very directly upfront. She was like, look, it's been 20 years. Uh, I don't know that I'm going to

remember everything. And I said, that's fine. Like we talk to people all the time about people, you know, things that happened long ago and we take what we can get and no worries. And so there was this ruling that came down from the Florida Supreme Court at one point that set a new deadline for vote counts. It pushed it back to, I believe it was November 26th. So like we're well past election day at this point. The Florida Supreme Court says, okay, Miami-Dade, Palm Beach, Broward, I think maybe Volusia was done by then. So it's just those three. Keep counting. Like you have five more days to count. And in the ruling, they specified that if the Secretary of State's office was

not open on that Sunday, which as you could imagine, a government office is not going to be open on a Sunday, then please hand in your votes on Monday morning. So they're closed on Sunday, submit your votes by the following Monday morning at 9. Fast forward to Sunday or Saturday. In Palm Beach County, people are like, we are not going to make this Sunday. We need till Monday morning. We need till Monday morning to get through all this

and for all this effort to have been worth something, because otherwise we have to revert to the original vote count if we don't finish. One of the members of the canvassing board appealed to Katherine Harris. I believe she wrote her a letter or even read a speech on TV where he was like, please, like, I don't know, like you have the option, according to the Florida Supreme Court ruling to give us till Monday morning by not being open on Sunday. And she was like, no, sorry, we're going to be open on Sunday. So the deadline is, no, sorry, we're going to be open on Sunday. So the deadline is Sunday.

It's going to go ahead and be Sunday night. And they didn't finish. And so when I read about that, it struck me as an example of a decision made in this saga by someone who claims to be acting neutrally and not in anyone's favor. And by their telling generally like they wanted to count as many people's votes as they could

like they wanted to the people to be heard. It's not about trying to have their guy win. But in this case you have a decision that's like so obviously arbitrary for to me. Like that's how I reacted to it when I when I read about it. And to my kind of amazement, and you can kind of hear this in the audio in the interview, she's like no no no no no no. The whole thing was we gave them more time. I was like no you didn't. You gave them like you had the opportunity to give them more time but you didn't. I'm curious as to you can tell me why. And she was like no no no you got it wrong.

Like we gave them more time. Like I did everything I could to count as many votes as you know. So again, I don't doubt her sincerity. I'm sure that's how she remembers it. But it was just like, as you say, everyone wants to be the person who acted honorably. And you can even misremember a key detail like that in service of who you wanna think you are.

You know what it reminds me of is sports fans prior to instant replay. That what, you know, when you, I remember I'm old enough, I'm the only person probably here old enough to really remember sports before instant replay. And sort of this way in which controversial calls would unfold in real time with competing fan bases with absolute utter sincerity, completely convinced

that the wrong call or the right call was made. And it took the introduction of instant replay. And even then it doesn't always happen, but it took the introduction of instant replay, and even then it doesn't always happen, but it took the introduction of instant replay to get people to, you know, and you'll even hear it in a stadium when it's a call that goes against the home, the instant replay goes against the home team,

you'll hear the groan when it's played, but before the instant replay, you would only hear the outrage of at the at the referee for the call going against the home team. And that's how I feel a lot about partisan politics is that contrary facts, contrary facts just don't penetrate people's minds and heart, they just don't, they just bounce off. And I never really understood this so much. And when I think back, especially when I was a more partisan person,

I recognize that tendency in me, but I never really figured this out until I talked to a person who's an expert in international conflict. And she was saying that there's an actual physiology behind this, that when a partisan encounters a negative fact, in other words, not a negative opinion, a negative fact, there is an actual fight or flight response.

That people have an actual physiological negative response to it, which leads to, it's not so much, you know, if you're fully aware of, you know, if you're fully aware of this phenomenon, you can absorb it and say, negative response to it, which leads to, it's not so much, you know, if you're fully aware of, you know, if you're fully aware of this phenomenon, you can absorb it and say, oh, that's just me being, that's just me reacting badly to my hopes being disappointed. But if you're not familiar with this concept,

that's, you're gonna interpret that as, I'm like an antibody, I'm rejecting falsehood, I'm rejecting what's wrong. And I just thought of that as you're talking about working through that Catherine Harris memory and that it's very much strikes me as no, that can't be right. Your assertion that just, that can't be correct.

But those, I gotta say like, those were kind of few and far between in this story. Because a lot of it turns on individuals interpreting poorly written laws We're not familiar with that in this podcast you know part of the challenge of making this the show and making it fun to listen to and exciting was that like so much of the cause and effect took the form of legal decisions and legal arguments David what you were saying before about how you don't get the, you don't remember that there's a feeling of apocalypse around this election.

Like you don't, it was clear the Gargoyles were strong. I think like what I see looking back on it, especially when I think about what we might be in for and what we already saw in 2020. It's also quaint. Like they are all like in agreement that we have to ground our actions. We have to justify what we, you know, the things we're advocating for with reference to the law. You mentioned Mayor Schell. I think that that's the best example.

Like they really argued about like whether one version of the law pertains in which Katherine Harris had the option of rejecting late ballots, but also had the option of taking them, or that she was actually obligated by law to reject them. And so battles at every level, like local county officials had to interpret the law around the Chad, right? By the way, plural of Chad is Chad, not Chad. That was great, by the way.

That was a huge moment for me in the podcast. Cause I was like, wait, no, no, oh, yep, you're right. Yep, that's the only thing that sounds right. That's right. Glad you like that one. Yeah, so one thing that is fascinating to me about this in 2000, and just sort of thinking through 2020,

was the role that network calls played. So we have call one for Gore, call two, our bad, call three, for Bush, call four, our bad. And how do you think those competing calls shaped the course of the argument going forward or did they ultimately just sort of recede in importance? Was this something that was much more just a problem in the moment and by day two, day three, day four, nobody's thinking about this anymore. But how significant do you think those competing calls were? Because Bush is always going to be ahead in the vote count going into the recount.

So how much did that matter to the narrative? Obviously quite a bit, I'd imagine, versus the media setting that agenda on election night. Yeah, that's a great question. Yeah. So I think there's two answers. Yeah, that's a great question. Yeah, so I think there's two answers. One is what you just said, that the dynamic of the race, of the recount, was that Bush was defending his victory and Gore was challenging it.

And that was true even before we entered the official so-called contest phase of the recount, at which point the votes have been certified already. I don't think Gore ever shook that. I think if you guys recall, Sore Loserman. Of course. You know, like that was very easy, a very easy label to plant on him because of that dynamic.

I mean, can you blame that dynamic entirely on calls? I think some of it, for sure. I mean, if there had been no calls, you know, like that number, I forget the exact number, forgive me, that was the original margin coming out of election night. I think if there had been no sort of official number, because I mean, you know, if it had never been called, I think maybe the inertia would have been less on Bush's side. But the other way in which I saw it, I think it mattered the two blown calls and the four

sort of like flip flops that you ticked off. I think it's sort of shook people's confidence that like they'll ever really know. You're supposed to be able to trust these people on TV who are supposed to be really careful in how they make these announcements because they know they're consequential. And when they screwed up twice in one night and, you know, frustrated everybody's expectations, I think that really didn't do much for like collective faith in the media, I guess. Or even in the idea that it's the winner of a close race, like this is even knowable. I mean, I think that's kind of why I'm a little bit nihilistic about the post-game

analysis because I'm like, it's impossible to know. It was just too close for us to say confidently. At one point at the very end, you mention a source you had that said that Justice Scalia, later in life, before he passed away, said that the equal protection rationale in Bush v. Gore was, quote unquote, bullsh**. I went and looked for that, like maybe you'd gotten it from some other news source and I couldn't find it. And I was curious what the source was for that. So that was in Evan Thomas's book.

We interviewed Evan for the show. He wrote a book called First about Justice O'Connor. It's interesting because in context, I guess I was thinking to myself, well, yeah, he wrote a concurrence with what he thought the real recent should be, so I'm not surprised. But that's a little bit how Supreme Court opinions work. If seven people are going to sign on to this and you think it also works, you're going to sign on to that because only three people are willing

to sign on to yours. And in a case like this, you really can't have plurality opinions bouncing throughout the court. And that would have been a potentially a three, four, two opinion on the reasoning with then five, four on the outcome. So I'm so curious what the rest of that context of that conversation was. Well, so first of all, I should correct both of us on the exact quote. According to Thomas's book, Scalia privately scoffed that it was, as we say in Brooklyn, a piece of shit. Ha ha ha.

Always away with words, that one. Look, I think the reason it's a meaningful utterance to me is that the equal protection argument that the Supreme Court ended up kind of uniting around, it just doesn't make any sense. I only realize it kind of part of the way through reporting this. Like the thing that the 2000 election recount achieved was that they showed us in granular detail, like that our presidential elections are built out of these tiny little cells, these tiny little networks, these tiny little local bodies of like, kind of like total randos.

And they're allowed to have different ballots and they're allowed to have different machines to count those ballots. Exactly. Yes, that's key. Right. And so, and so the question before the Supreme Court was like, if we let all these 67 counties in Florida, all of which have different standards for what counts as a vote, proceed with this manual recount. That means that different people's votes will be assessed different ways. And that's a violation of the Equal Protection Clause, which is insane because by that logic, our entire federal system

of elections is a violation of the Equal Protection Clause. I really think it's that simple. There's obviously long, long papers written about the legal logic of Bush v. Gore. But to me, it's like, that's the, that's, I don't can't, I can't, and I can't get past that. The thing that, yes, it's true that it's surprising that it works this way, and maybe it shouldn't, but to object to this recount on the basis that our election system is piecemeal like this, well, like, that's not really anyone's fault. Certainly not anyone in Florida, you know?

Well, that is what was interesting in their explanation because they acknowledge that it's not an equal protection violation for different ballots to be counted by different machines and that some machines are going to be more sensitive than others, for instance, to your point. Isn't that what we're talking about here? And yet somehow they make the argument that no, it's the Florida Supreme Court fashioning a statewide single standard, but that that standard is basically arbitrary or standardless. That's the equal protection violation, which to me actually is why the Rehnquist-Scalia-Thomas concurrence, I think at least makes more logical sense, right?

Because if it really just comes down to like the Florida Supreme Court doesn't have the power to do this, then the equal protection argument makes more sense. It's not an equal protection problem. It's a due process problem maybe. It's a constitutional, you know, this independent state legislature quasi theory problem where they were acting as a state legislature and not as a Supreme Court, all of those things that they spend a lot of time in the oral argument on. They spent almost no time.

You actually oversold, I thought, the amount of time they spent on equal protection in the oral argument. You're like, they don't even get to it until you're most of the way through Olson's argument. And they still don't. Literally the words equal protection are mentioned by Kennedy, but it's not really a question that Olson answers. And then by the time you get to Boyce, you're most of the way through that and Souter's like, it is an equal protection violation. So now let's talk about what we're going to do about it. There's really not much argument about it. It's stunning.

I thought we made that point. No, you do. I just mean like, you needed more like sirens and exclamations. Like when you go back and listen to it, you'll be stunned. It's not like, oh, it didn't, you know, it wasn't the main focus of the argument. It wasn't. It wasn't the main focus. Yeah. No, I see. Yeah. No, no, no. It's not in the argument. Yeah. Yeah. Yeah. Yeah. I see. I hear. I hear. We understood it in the sense. Yes. I hear you.

Yeah. And really grappling with like, yeah, yeah, yeah. I see. I hear. We undersold it in the sense. Yes, I hear you. Yeah. And really grappling with like, well, wait a second. Is it equal protection or is it due process? Is it due process or is it that the Florida Supreme Court is not acting as a court, an appellate body? Right.

Like, I mean, and then you have this opinion that looks totally unrelated. Leon Neyfock, your Fiasco Bush Figuar podcast is now going to be available everywhere starting this week. I think it's super fun to listen to. You have more Fiasco podcasts that are out there as well. Is your one on the 1970s Boston busing crisis out? Yeah. Well, so, so yeah, we are actually releasing that as an audio book early next year. The series we made on the Boston busing crisis. I took a class on that in college. I'm super pumped to listen to that one next.

It's an incredible story. Yeah. And then we got Iran Contra. And then we got Benghazi all rolling out over the next year or so. Well, American history doesn't starve you of fiascos to pick from. That's right. So may you have many more to come. They're all, I mean, between Slowburn and Fiasco now, you can count on anything that Leon Neyfok has done. Confounding your expectations

of what you think it's going to be. You always learn stuff. It's a thriller somehow, even when you live through it. I just, I'm very grateful. Thank you for doing all this work. Thank you. You're very kind. I really appreciate that. And I will pass it along to our, the team that made this. You're very kind. Well, that was a treat talking to Leon. And before we go, David, we have two First Amendment updates that are at least worth a few moments of our time. Yeah, absolutely.

So one of them involves the case involving a citizen journalist. This is a case that we've talked about involving Priscilla Villarreal, who faced prison for asking police officers to confirm facts that she'd learned from another source. There was a real question here in that this is a person who is not working for a news organization. She has a bunch of Facebook followers.

She's very critical of local officials on her Facebook page. And so this is a case in which police had used a very old statute to essentially criminalize her journalism. And the Supreme Court has taken this case, this is a case that we've talked about a lot before. So what they did is they vacated her petition for redissociary, vacated the lower court judgment and remanded it to the Fifth Circuit for consideration

in the light of this case called Gonzalez v. Trevino, which faithful advisory opinions listeners will realize is a case with another case we've talked about, but this was the former city councilman in Castle Hills, Texas, who had taken some documents from a city council meeting and had faced prosecution. This was a case that then revolved around

what is retaliation? When is unconstitutional retaliation occurring? And the Supreme Court had said that there was a real question as to whether retaliation occurred in that case. And so they're remanding Villarreal for reconsideration in light of Gonzalez. Big win for the First Amendment overall. A big win for citizen journalism overall.

So this is yet another of these Supreme Court decisions, Sarah, that is a First Amendment win. And this is just a consistent pattern. I think I've said this before, but the rap artist, hip hop artist, DJ Khaled actually wrote a song about First Amendment litigators. And it goes something like this, all I do is win, win, win, win, win. That's the First Amendment at the Supreme Court. So another further evidence on that. And then we have another case as well that is a First Amendment case. So this is

coming from the 11th Circuit Court of Appeals. It involves Moms for Liberty and it involves the application of rules in public comment periods in public meetings. And so the board had some rules that included things like, no person may address or question board members individually. Speakers are allowed to direct their comments only to the presiding officer. Another policy barred statements that were, quote, too lengthy, personally directed,

abusive, obscene, or irrelevant. The goal of these rules was to maintain decorum and prevent, quote, the incitement of other audience members in a manner that would create an unsafe situation or one that may adversely impact children. So the speech rules are for the children, Sarah. And look, if you are showing up at a local meeting, let's say you're at a school board meeting,

and you stand up and you wanna talk about garbage collection, it's a very fair rule to say, wait, this is a school board meeting, we're gonna have comments germane to the operation of the school board. We're not gonna have comments say, germane to the operation of the sanitation department or parts and recreation department.

But in this case, the rules were quite broad, quite vague, not consistently enforced. And so we're quite properly struck down. The district court rule, I mean, the appellate court rules for moms for liberty in this case. I think it's worth highlighting, not because this is groundbreaking anyway, as soon as I started reading the fact pattern of this case, you just knew how this was coming out. Like this case was coming out for moms for liberty. But it is interesting in the way in which you're, if you're a member of a school board, how

do you approach things like moderating the comments? Are there limits that you can place on the way in which comments are made? And the short answer to that is yes, but you have to be very careful, you have to be very precise, and you have to be very careful, you have to be very precise, and you have to be extremely consistent. And so one of the things, as the court said, enforcement actions against similarly situated speakers are relevant. So in other words, how do you treat other people?

And if you're seeing that Moms for Liberty points out that they were treated differently from other speakers, then you're just going to lose that case if you're a school board. These are actually the same case, right? Because the rule that is applying to these like, we're arresting people for crimes that are on the books, but they're vague crimes and you don't arrest anyone else for them. And so that was what that original Supreme Court decision that they vacated the Villarreal case based on.

Yes, they had probable cause to believe that she had violated this law and she couldn't point to someone else who had put a document in the binder and not been arrested. And the Supreme Court's point was like, don't be quite so narrowly and strictly rule focused on this. Yeah, they'd never used this law before. And in any circumstance like this, and similar to Villarreal, well, they'd never arrested a journalist who makes money doing journalism for relying on a confidential government source to confirm confidential information. So yeah, that's, they're clearly using it because they didn't like what she said. And same with the school board meetings.

Well, you have these broad, vague rules and then you only enforce them against one side. Yes, that side did break the rule. The problem is that you don't enforce it against anyone else who breaks the rule. And I am once again reminded David of my 12th grade calculus class where I got a D on the homework and Kenzie got an A and I complained and she said, it's not that Kenzie got the answers right. It's that you both got the answers wrong, but she has beautiful handwriting. Let me, while you were walking through that, I was coming, pulling up some of the more interesting

ways in which this policy was applied. And so this just is a great, this is a great way of introducing the way in which school boards and public officials can often be arbitrary. So the board's policies for public participation prohibit abusive speech, but they don't offer any meaning for the term abusive.

So the court says, we start by looking at dictionaries, which define it to mean using harsh insulting language and habitually cruel, malicious or violent language using cruel words or physical violence. That's from Black's Law Dictionary. But that is not where the school board landed, says the court. When asked to give her own definition, when the defendant says, the one used to enforce the policy in board meetings, she could not do so. At least at first, she eventually elaborated

on her initial definition, explaining that speech that would be as abusive if someone were yelling, screaming, cussing, you know, calling people names. Expanding on that last element said the policy would prohibit calling people names that are generally accepted to be unacceptable. That definition, as the 11th Circuit says in understated language, is constitutionally problematic because it enabled the school

board official to shut down speakers whenever she saw the message as offensive. For example, they silenced somebody who called the masking policy a quote, simple ploy to silence our opposition to this evil LGBTQ agenda. Now calling a masking policy a ploy to silence opposition to evil LGBTQ agenda is nonsensical, but nonsensical speech still protected by the constitution.

But the school board official stops the speaker who had not yelled, not screamed, not caused a disruption, but then says in the affidavit, because the characterization of people as evil is abusive. Huh, interesting. I would say it's insulting. It's insulting, but abusive? Really? Are we extending it that far? So this case is very interesting because once again, it is illustrating that

if you're going to write a speech standard, it needs to be precise. It needs to be consistently enforced. It needs to be content and viewpoint neutral. And excepting you're in these limited circumstances where, for example, if you're at the school board, the content needs to relate to the operation of the school, not, for example, as I said, the operation of the sanitation department, but this unequal enforcement, vague standards,

it's just going to get you struck down again and again and again. And with that, we'll wrap this episode, this very long episode of Advisory Opinions and see y'all next week. You