Second Bush v. Gore A Distant—But Real—Possibility

The aftermath of the 2016 campaign has been almost as messy as the campaign itself. An Electoral College victory paired with a (pretty substantial) popular vote defeat, pushes for electors to vote their conscience, and (albeit, largely unsuccessful) recounts launched by a certain third party candidate have all made for a legal and constitutional morass. The last time we dealt with something like this was in 2000 when the outcome was ultimately decided de facto by the Supreme Court, in the case Bush v. Gore. Many are wondering, could Bush v. Gore happen again?

Unless there’s a major legal challenge brought, it’s not very likely. Then again, it is also far from impossible.

I was 17 years old on Election Night in 2000, just ten months shy of voting age, and I went to bed thinking that Al Gore had won the election only to wake up the next morning to a giant question mark on the front page of the newspaper. Over the next several weeks, we were treated to unending news coverage of the recount in Florida, discussions of butterfly ballots and pregnant chads, and had the unsatisfying conclusion of SCOTUS shutting down the recount, essentially certifying Bush’s win in Florida, narrowly handing him the Electoral College.

The circumstances that landed the case in the Supreme Court were strange, to be sure: various lawsuits over the Florida recount quickly ricocheted their way up the judicial ladder, especially as the federal deadline for certifying state results (which precedes the meeting of the Electoral College by six days) approached.

This year, that date has already come and gone, and the states whose votes were in doubt — Pennsylvania, Wisconsin and Michigan — have all certified their results.

The one area of electoral legalese still in question centers around the electors themselves, and whether or not they’re allowed to “vote their conscience.” Currently, 29 states plus Washington D.C. bind their electors to vote according to the popular vote results of their state, though a group of so-called “Hamilton Electors” are pushing to unbind those electors. Alexander Hamilton wrote in Federalist No. 68 that the whole point of the Electoral College was to review the popular vote in order to help the United States avoid demagogic leaders.

The biggest challenge to Electoral College bindings has so far come from Colorado, a state Hillary Clinton won. Two of the Colorado electors sued to be unbound, but a state judge ruled on Tuesday that they were required to vote as instructed. The thought had been that, if Democratic electors could be unbound in Colorado, Republican electors in other states who were having second thoughts about Donald Trump could be similarly unbound. It is unclear whether any appeal will be heard before the electors vote this coming Monday, but it is unlikely the Supreme Court will weigh in by then.

The other possible judicial angle is if a substantial number of Trump electors end up voting for someone else, and they are challenged in court. Again, the choice before the court might not be Trump versus Clinton (or someone else), but between a clear Trump victory and a constitutional clusterf*ck. And, especially considering that there would be a lot of pressure on Justice Ruth Bader Ginsburg to recuse herself (after she made comments critical of Trump during the campaign), it seems unlikely that the remaining seven justices would muster a major electoral upheaval.

But, as I’ve said before and I’ll say again: 2016 is nothing if not the year of unlikely political happenings.