{"id":31600,"date":"2024-02-09T12:11:22","date_gmt":"2024-02-09T20:11:22","guid":{"rendered":"https:\/\/occupysf.net\/?p=31600"},"modified":"2024-02-09T12:11:23","modified_gmt":"2024-02-09T20:11:23","slug":"the-ghost-of-bush-v-gore-haunts-the-supreme-courts-colorado-case","status":"publish","type":"post","link":"http:\/\/occupysf.net\/index.php\/2024\/02\/09\/the-ghost-of-bush-v-gore-haunts-the-supreme-courts-colorado-case\/","title":{"rendered":"The Ghost of Bush v. Gore Haunts the Supreme Court’s Colorado Case"},"content":{"rendered":"\n

Tammy Kim\/The New Yorker<\/strong><\/p>\n\n\n\n

\"TheIn 2000, the Court played an outsized role in the Presidential election. This year, in the fight over keeping Trump\u2019s name on the ballot, that decision is a warning but not a precedent. (photo: AFP)<\/strong><\/p>\n\n\n\n

08 february 24<\/strong> (RSN.org)<\/p>\n\n\n\n

\n

In 2000, the Court played an outsized role in the Presidential election. This year, in the fight over keeping Trump\u2019s name on the ballot, that decision is a warning but not a precedent.<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n

In early December, 2000, a young lawyer in Washington, D.C., named Gerard Magliocca stopped in front of the Supreme Court building. The question of who had won the Presidential election, on November 7th, remained unresolved. George W. Bush and Al Gore were separated by mere hundreds of votes in Florida, and the Bush campaign had sued to stop a recount. The Florida Supreme Court sided with Gore, so Bush appealed to the United States Supreme Court. While the nine Justices deliberated, the country was fixed to television news of \u201cbutterfly ballots\u201d and punch-card \u201changing chads.\u201d At the courthouse, the scene was quiet. \u201cThere was a TV reporter standing on a box outside to get the building profile in the shot,\u201d Magliocca told me. \u201cI asked if he\u2019d heard anything yet, but he hadn\u2019t.\u201d<\/p>\n\n\n\n

Magliocca was a second-year associate at the white-shoe firm Covington \u2026 Burling. He was a Republican who\u2019d graduated from Yale Law School and clerked for the enduring Second Circuit judge Guido Calabresi. Election law was a relatively narrow discipline, concerned with voting rights, campaign finance, and redistricting; Bush v. Gore was unprecedented. \u201cAt the time, everybody said, \u2018This is a question about who won Florida. Elections are always decided by the state Supreme Court. Why would the U.S. Supreme Court get involved? They don\u2019t have jurisdiction,\u2019 \u201d Magliocca recalled. \u201cThat all turned out to be wrong.\u201d<\/p>\n\n\n\n

Soon after Bush v. Gore, Magliocca left the law firm to teach at Indiana University, where he joined the Federalist Society<\/a>. He is now the Samuel R. Rosen Professor at the McKinney School of Law and a widely published expert on the history and constitutional jurisprudence of Reconstruction. One of his more recent projects has focussed on Section 3 of the Fourteenth Amendment, which provides that no person, \u201chaving previously taken an oath . . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.\u201d He took on this research during Donald Trump\u2019s Presidency, but had no political motivation. \u201cIt was really just, Here\u2019s a portion of the Fourteenth Amendment that I know almost nothing about,\u201d he told me.<\/p>\n\n\n\n

A draft of Magliocca\u2019s findings<\/a> on the insurrection clause was published in December, 2020. The paper argues that, after the Civil War, the courts were somewhat hesitant to apply Section 3, though thousands of Confederate soldiers were disqualified retroactively. Section 3, Magliocca told me, \u201cwas written after a lot of bedlam in the streets. There was a lot of political violence.\u201d<\/p>\n\n\n\n

Less than a month after the paper was published, Section 3 found real-world application for the first time in a hundred and fifty years. The scope of the January 6th attack<\/a> was still coming into view when Magliocca sat at his desk to parse the day\u2019s events. \u201cI find very interesting the use of the word \u2018insurrection\u2019 to describe what occurred today at the Capitol,\u201d he wrote<\/a> that evening, on the law blog Balkinization. \u201cFor example, Senator Romney issued a statement saying that today was \u2018an insurrection, incited by the President of the United States.\u2019 Senator McConnell described today as a \u2018failed insurrection.\u2019 \u201d If so, Trump might be ineligible to run for office in the future under Section 3, Magliocca continued, but it was \u201cjust an academic point for now.\u201d<\/p>\n\n\n\n

Lawsuits alleging that Trump should be disqualified from Presidential ballots in 2024 have since been filed in some twenty states. (In December, Maine\u2019s secretary of state excluded Trump from the ballot; that decision is now on hold.) This week, the U.S. Supreme Court will hear oral arguments in Trump v. Anderson, which concerns whether Trump can appear on the Republican primary ballot in Colorado. The named plaintiff seeking his disqualification, the former Republican lawmaker Norma Anderson, claims that Trump engaged in insurrection on January 6th. The Colorado Supreme Court had ruled<\/a> in Anderson\u2019s favor.<\/p>\n\n\n\n

After January 6th, Bush v. Gore \u201cpopped into my mind,\u201d Magliocca told me. \u201cThis is going to the Supreme Court.\u201d The two cases have little technical overlap. Bush v. Gore concerned an election that had already happened, and ultimately revolved around Section 1 of the Fourteenth Amendment (equal protection). Trump v. Anderson is based on Section 3 (insurrection), and has been scheduled\u2014in advance of Super Tuesday\u2014to avoid ex-post-facto controversy. But it\u2019s impossible not to think of them together. Bush v. Gore is a spectre floating over this week\u2019s proceedings.<\/p>\n\n\n\n

The Supreme Court of 2000 was more ideologically diverse than it is today. There were three resolutely conservative Justices (William Rehnquist, Antonin Scalia<\/a>, and Clarence Thomas<\/a>), two conservatives known to occasionally \u201cswing\u201d their votes (Sandra Day O\u2019Connor<\/a> and Anthony Kennedy), and four liberals (David Souter, Stephen Breyer, Ruth Bader Ginsburg<\/a>, and John Paul Stevens). Justices Scalia and Ginsburg were famously close friends. Each Justice had four clerks, \u00e9lite law-school graduates who assisted with research and often shared a similar world view. The clerks ate lunch together in the courthouse cafeteria, or dinner at Tortilla Coast, and played basketball on the fifth floor, the other \u201chighest court in the land.\u201d<\/p>\n\n\n\n

An often forgotten detail from 2000 is that the Supreme Court actually considered the Florida recount twice. After Election Night, teams of lawyers for both campaigns descended on Tallahassee and traded lawsuits: Gore demanded recounts in various counties; Bush, who had the apparent lead, wanted the election certified statewide. The Florida Supreme Court agreed with Gore. This was just before the United States Supreme Court went on break for Thanksgiving, and Justice Stevens was golfing, ironically, in Florida when Bush\u2019s petition came in; a clerk had to read it to him over the phone. The clerks for Scalia shared their holiday dinner.<\/p>\n\n\n\n

On December 4, 2000, the Court issued a unanimous decision, sending the case back to the Florida Supreme Court. In the meantime, Florida\u2019s secretary of state\u2014who reported to Bush\u2019s brother Jeb, then governor\u2014had certified the election for Bush, and some of the clerks hoped that the remand would force local officials to resolve the conflict. \u201cThere was a great sense of relief. We thought maybe we were done with it,\u201d a former clerk for one of the liberal Justices told me.<\/p>\n\n\n\n

But just a few days later the case was back. The Florida Supreme Court had ordered manual recounts across the state, which Team Bush saw as an unconstitutional overreach. Bush asked the U.S. Supreme Court for an immediate stay\u2014a freeze of the recount\u2014an extraordinary remedy. The conservative Justices outvoted the liberals, 5\u20134, granting the stay. Many Court watchers were stunned.<\/p>\n\n\n\n

It was a sleepless, \u201ccrazy,\u201d and \u201csurreal\u201d time at the Court, according to the former clerks and attorneys on both sides. Typically, it took weeks, even months, to decide a case. The clerks would help the Justices sort through briefs, research cited cases, and write memos on knotty questions of law. The Justices would circulate draft opinions, concurrences, and dissents, trying to get one another to sign on. Revise, distribute, revise. Now a ruling of unprecedented consequence had to be assembled in days, really hours. Some clerks worked overnight. A chill set in among the staff, who passed around drafts but expected little agreement across the ideological divide.<\/p>\n\n\n\n

Oral argument was held on December 11th. The very next day, the Court issued a 5\u20134 decision, cementing a victory for Bush. The Times<\/em> ran<\/a> a closeup of the President-elect\u2019s smiling face, under the enormous headline: \u201cBUSH PREVAILS: BY SINGLE VOTE, JUSTICES END RECOUNT, BLOCKING GORE AFTER 5-WEEK STRUGGLE<\/em>.\u201d<\/p>\n\n\n\n

The mood inside the courthouse became gloomy. \u201cLeading up to that whole thing, the clerks got along pretty well,\u201d a clerk for one of the conservative Justices told me. \u201cAfter Bush v. Gore, it really broke down. There were just people who felt strongly that something terrible had happened.\u201d<\/p>\n\n\n\n

For several decades following the civil-rights era, the Court had been seen as a reformist institution. Bush v. Gore undermined that. \u201cI think liberals have been hurt more by that misplaced view, because they had more to lose,\u201d a conservative clerk told me. \u201cThe Supreme Court will break your heart.\u201d<\/p>\n\n\n\n

On November 6, 2000, the day before the election, Benjamin Ginsberg, a lead attorney for Bush, took his team to lunch at a Mexican restaurant across the street from campaign headquarters, in Austin. In \u201cthese last moments of sanity,\u201d the dozen lawyers shared chips and salsa and \u201cwere careful not to drink,\u201d he recalled. \u201cWe were talking about lawyers\u2019 fantasies\u2014walking up the steps of the Supreme Court to argue a case for your client. Somebody said, \u2018What about a Presidential recount?\u2019 And I said, emphatically, \u2018That\u2019ll never happen.\u2019 \u201d Ginsberg had worked on many recounts in state and local races, but it was inconceivable at the level of President. \u201cThat turned out to be not a really good prediction. The whole period, the whole thirty-six days, was one of \u2018Wow, I never thought we\u2019d be doing this,\u2019 \u201d he said.<\/p>\n\n\n\n

In Trump v. Anderson, as in Bush v. Gore, there are many questions of law and fact, and thus many off-ramps that the Supreme Court could take to issue the least controversial ruling possible. The Justices could decide, for instance, that Trump did not participate in \u201cinsurrection or rebellion\u201d under the meaning of Section 3, or that Section 3 does not apply to the office of President in order to keep him on the ballot. They could also send the case back to Colorado, or Congress, for fact-finding on Trump\u2019s activities and statements, but that comes with the risk of delay.<\/p>\n\n\n\n

Ginsberg recently teamed up with a progressive scholar of election law named Richard Hasen to submit an amicus brief in Trump v. Anderson. (During Bush v. Gore, Hasen was teaching at Loyola Law School, in Los Angeles. \u201cI threw the syllabus out, and every week we talked about the latest cases in the dispute,\u201d he told me.) Their brief does not take a position on whether the Supreme Court should affirm or reverse the Colorado Supreme Court; it merely urges the Court to decide something, and soon, because \u201ckicking the can down the road would be far more fraught for the country\u201d than it was even in 2000. \u201cOne lesson the Court has learned from Bush v. Gore is: they want to step in before their decision is so obviously about an election,\u201d the former liberal clerk told me.<\/p>\n\n\n\n

The difference in timing\u2014before or after the election\u2014makes the Colorado case feel a bit less panicked. \u201cBush v. Gore was a real dispute on the ground, in the real world,\u201d a lawyer who was on Team Gore told me. \u201cI sort of view Trump v. Anderson as being cooked up in a law-school laboratory somewhere.\u201d<\/p>\n\n\n\n

In a sense, it was: the litigation is directly traceable to Magliocca\u2019s paper, which has fuelled a Never Trump mini-movement. Last August, the law professors William Baude and Michael Paulsen extended<\/a> Magliocca\u2019s research, writing a paper of more than a hundred and twenty pages that prescribes a strategy of disqualification under Section 3. Though it is still technically forthcoming, the article has influenced<\/a> many law professors and litigators.<\/p>\n\n\n\n

In November, Magliocca testified at the plaintiff Anderson\u2019s behest, in Colorado. \u201cThe trial was pretty low-profile. I didn\u2019t know what to expect, but when I got to the courthouse the room was empty,\u201d he told me. \u201cThat was very different from these criminal cases against Trump, or the fraud case or the defamation case.\u201d (This month, a court found that Trump is not immune from prosecution. If that ruling stands, Trump will be tried in federal court later this year for his attempt to overturn the 2020 election.)<\/p>\n\n\n\n

Magliocca isn\u2019t surprised, given the events of January 6th, that his work on Section 3 has garnered interest. \u201cThere were other articles I\u2019ve written where I was consciously trying to influence the law,\u201d he told me. \u201cAll the times I did that, they didn\u2019t do anything.\u201d After years of identifying as a Republican, he now considers himself an Independent. \u201cI got an e-mail from someone recently who said I must have been tipped off by Antifa about January 6th. No, I was not!\u201d he said.<\/p>\n\n\n\n

The ghost of twenty years past is with the Court in other ways, too. It so happens that Chief Justice John Roberts, Brett Kavanaugh, and Amy Coney Barrett were young attorneys on Team Bush, in 2000. Kavanaugh, Barrett, and Neil Gorsuch are fresh Trump appointees. None of these facts should be relevant to Trump v. Anderson, but, of course, they are. \u201cFor Justices like Barrett or Kavanaugh, with the benefit of hindsight in what came of Bush v. Gore, they would not want to be seen as political operatives in Donald Trump\u2019s pocket, but I don\u2019t know how that cuts,\u201d Michael Kimberly, a lawyer who co-wrote the amicus brief signed by Hasen and Ginsberg, told me. Will they disqualify Trump or try to find a textual basis for continued eligibility?<\/p>\n\n\n\n

Kimberly, like me, was in college at the time of Bush v. Gore; it was also the first Presidential election in which people our age could vote. A few years later\u2014after 9\/11, after the start of another war\u2014I entered law school and took constitutional law with a young professor who\u2019d recently clerked for Justice O\u2019Connor. (She invited Kennedy, the other swing Justice, as a guest speaker.) One of her lectures covered the political-question doctrine, which maintains that the federal courts should avoid ruling on subjects that are fundamentally political, as opposed to legal, in nature. I remember feeling skeptical: Hadn\u2019t the Supreme Court just decided the outcome of a Presidential election?<\/p>\n\n\n\n

This week, Magliocca is teaching Trump v. Anderson in class. \u201cI don\u2019t know what I\u2019m going to say. I told them to read the briefs\u2014at least the main briefs,\u201d he explained. (There are dozens of amicus submissions.) \u201cIf we hadn\u2019t had January 6th, the Supreme Court might have said, \u2018Eligibility is a political question. It\u2019s only for Congress.\u2019 \u201d But the courthouse faces the Capitol building; rebellion is not an abstraction for the Justices. If they disqualify Trump, there may be a riot. If they don\u2019t, there could be one, too, including in November. \u201cPeople are going to say, if Trump wins the election, \u2018He\u2019s not the real President. We\u2019re going to Congress to have them stop!\u2019 \u201d Magliocca told me. \u201cThat\u2019s going to be a nightmare.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Tammy Kim\/The New Yorker In 2000, the Court played an outsized role in the Presidential election. This year, in the fight over keeping Trump\u2019s name on the ballot, that decision is a warning but not a precedent. (photo: AFP) 08 february 24 (RSN.org) In 2000, the Court played an outsized… Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31600"}],"collection":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/comments?post=31600"}],"version-history":[{"count":1,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31600\/revisions"}],"predecessor-version":[{"id":31601,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/posts\/31600\/revisions\/31601"}],"wp:attachment":[{"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/media?parent=31600"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/categories?post=31600"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/occupysf.net\/index.php\/wp-json\/wp\/v2\/tags?post=31600"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}