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Let's talk about Bush v. Gore and what it means for any challenges by either candidate to the outcome of voting in close states. /1
First, it's important to remember that cases begin, and are bound by, their facts. In 2000, the Florida Division of Elections CERTIFIED that Bush was the winner by a thin margin of votes -- 1,784. /2
This prompted an automatic recount under state law. On 10 Nov., the recount found Bush still won, but by a lead of only 327. HOWEVER, this recount was not actually completed; 18 counties did not do the recount. But Gore did not challenge this in the FL courts. /3
Florida's election laws permitted a non-machine recount only in counties that were specifically requested. Gore, thinking he was smart, requested recounts in traditionally-D counties only. But FL election law required certification within so many days of the election... /4
and the hand recounts in these counties would not make the deadline. So Gore asked for an extension, which was denied. The FL Sup. Ct., on the other hand, stayed the final certification and permitted the manual recounts to continue. /5
Eventually, on 9 Dec., the FLSCT ordered a statewide manual recount, but SCOTUS stayed this action, finding that Bush would suffer "irreparable harm" if this statewide recount continued. This is where most scholars (unsurprisingly) disagree as to the case. /6
The standard to obtain a stay and injunction in federal courts is that without the stay, the plaintiff will suffer harm for which the law can provide no injury. The legal question was whether the FLSCT could order the statewide recount when FL law did not provide it. /7
Justice Scalia argued that Bush would suffer the harm of a permanent cloud over the legitimacy of his presidency if the potentially-illegal recount (according to FL law) was permitted to occur. Justice Stevens, writing in dissent, argued no irreparable harm was shown. /8
Had Gore requested a statewide recount, rather than of only four counties, the case might have been different. Had FL law not had such strict deadlines, the manual recount might have occurred without issue. /9
The eventual holding of the case has two parts: (1) it is unconstitutional for different counties to have different standards for what counts as a vote; and (2) the remedy for unconstitutional recounts is to accept the non-recounted certification. /10
(1) was a 7/2 holding and is probably correct; a state should have uniform rules for what counts as a valid vote (e.g., hanging or dimpled chads counted in Broward but not Palm Beach counties). /11
(2) is the controversial one. The 5-4 majority ruled that because no constitutionally-sound recount could be completed by the deadline for certifying electors, the previous 327-vote win had to be certified and electors awarded on that basis. /12
There's not a whole lot of good legal reasoning behind that, but it was enough for Gore to wave the white flag and give in, ending his contest to the election. Gore could have potentially argued the remedy was not proper under state law in front of the FLSCT, but he didn't. /13
Fast forward to 2020: assume the margin of victory is small enough in WI, PA, GA, AZ, and NV to trigger recounts under state law. The recounts will happen; but it's unlikely the recounts will actually change the state award of electors. /14
Trump needs to win recounts in SEVERAL states to make it to 270; the likelihood of that many states being that wrong is very small. So Trump would have to challenge the LEGALITY of votes in those states. /15
This is hard; that's a creature of state law, and so long as the law is uniform, SCOTUS likely won't intervene in those proceedings. And none of the states are particularly "Trump-friendly" when it comes to throwing out votes. /16
Not to mention the hue and cry that would be raised if previously counted votes were thrown out for anything less than widespread, well-documented fraud (which is next to impossible). /17
Further, Bush v. Gore indicates those challenges would have to be completed by the time for the meeting and vote of the electoral college, so there's a little over a month left in which to fight, and win, these challenges. /18
None of them have gone Trump's way thus far, and again, short of actual hard evidence of fraud, he's going to have to content himself with the outcomes of recounts, which COULD conceivably flip really close states like GA or AZ back to him. /19
But can he do it in enough states? Possible, but very unlikely. Were he a normal politician, I would expect him to go the way of Gore after the mandated recounts. But he's not, so let's just see how weird this gets. /end
