In 2000, when Al Gore and George W. Bush wrestled for the Presidency, the election came down to one state: Florida, where the political situation was further complicated by the fact that Bush's younger brother, Jeb, was governor.
Florida electors were unable to commit themselves to either Bush or Gore owing to the closeness of the vote. There was an automatic recount. That automatic recount reduced Bush's lead to just 327 votes out of the six million ballots cast in Florida. Gore then asked for a manual recount. This was followed by a series of lawsuits and the Florida Supreme Court ordered a further recount. Finally, eventually, to get an emergency injunction, Bush had to demonstrate that he would be "irreparably harmed" if recounts were to continue while awaiting a final decision in the case.
Finally, in an unsigned opinion, the Supreme Court of the United States Court voted 5-4 to put a stop to the Florida recount. Allowing the recount to go forward, the Court said, would violate the Equal Protection Clause of the Fourteenth Amendment. The U.S. Supreme Court sent the case back down to the Florida Supreme Court, which had no alternative but to dismiss it. The presidential election of 2000 had been decided, in essence, by the vote of one Supreme Court justice.
For the next few weeks, recounts for the 2016 election will continue in not one but at least three states: Wisconsin, Michigan and Pennsylvania. Can Trump raise the spectre of the election of 2000?
In thinking about the facts in 2016, there are at least two issues to consider now with regard to SCOTUS as to why the recounts will continue.
SCOTUS , thanks to the Republican controlled Senate blocking President Obama's appointment of Merrick Garland to the Court, is now split 4-4 along ideological lines, so theoretically if Trump, having moved forward toward claiming the Presidency, were to file for injunctive relief, he would face a potentially split vote by a court which cannot rule.
Further, since the SCOTUS ruling in Gore vs Bush was declared "limited to the present circumstances," instead of precedential, it cannot be referenced by Donald Trump's campaign. There is no basis on which the court can act.
Don't even ask, Trump. Don't ask.
###
November 27, 2016
