March 31, 2022 | Reading Time: 4 minutes
Steal an election? Bush v Gore did. Ted Cruz helped. He advised Trump on how to do it again
Cruz said he was convinced Al Gore "was trying to steal the presidency.”
If you’ve been paying any attention to the news the last few years, you might be just a tad concerned about maintaining our democracy and what seems to be a conservative fascist threat.
For many, the threat became clear on January 6, 2021. Others have been concerned since Donald Trump took office. Others still since Mitch McConnell essentially stole a Supreme Court seat.
But let’s be honest. This slide into fascism began in 2000.
With Bush v. Gore.
Cruz was deeply involved in Trump’s efforts to stay in power after he lost the election to Joe Biden. He was also on the ground with the Bush campaign in 2000, fighting against the recounts.
Sure, we were all outraged at the time (I was 13 and very angry) and it seemed pretty clear George W. Bush hadn’t really won the election.
But I don’t think we could have realized how many things were going to be altered by that decision or how many Republican figures shaping the current threats were also deeply involved in Bush v. Gore.
For those of you who don’t remember, Bush v. Gore was the Supreme Court case that decided the 2000 election between Al Gore and Bush.
The election was very close. It came down to Florida. It was unclear who had won. It was so close it triggered an automatic recount.
On election night networks had called the election first for Gore, then for Bush. But as counting continued, Bush’s lead over Gore narrowed to 2,000 votes, then 300 the next day. The next month involved a lot of controversy about a hand recount and how long the state would be given to recount (anyone still have nightmares about hanging chads?)
On December 8, the Florida Supreme Court ordered a statewide recount of all “undervotes” (votes tabulation machines might have missed because they didn’t have every office filled out).
The Bush campaign appealed to the Supreme Court to stay the decision. In a 7-2 decision, the court ruled that using different standards to count votes in different counties violated the Equal Protection Clause. Then in a 5-4 decision, the court ruled against allowing the Florida recount to continue using a uniform method.
The court’s Republican majority held that no alternative uniform method could be established to recount in the required timeframe.
The court’s party-line decision meant Bush won the election with a lead of five electoral votes and a popular vote deficit of .5 percent.
What does this have to do with our current problems?
For one thing, an election was undemocratically decided by the Supreme Court and not the voters. It’s very likely that a full recount would have decided the election for Gore. (There are also the ways a President Gore might have changed American and world history).
We also have three justices sitting on the current court who worked on Bush v. Gore, which is, you know, concerning to say the least. These justices are clearly fine with undemocratic electoral decisions.
How might that affect their decisions concerning J6 cases?
What about the recent cases over gerrymandered maps?
John Roberts, currently chief justice of the United States (nominated by Bush in 2005 and to the DC circuit in 2003), assisted the Bush legal team in preparation to argue in front of the Supreme Court in 2000.
Roberts also wrote the opinion in Shelby v. Holder. That severely weakened the Voting Rights Act, thus ushering in years of laws limiting voting access to people – especially groups known to vote Democratic.
These justices aren’t the only important Republicans who were involved in the legal controversies of the 2000 election.
Ted Cruz was deeply involved in Trump’s efforts to stay in power after he lost the election to Joe Biden. He was also on the ground with the Bush campaign in 2000, fighting against the recounts.
In his memoir Cruz wrote he was convinced “Gore was trying to steal the presidency.” I guess getting votes counted is stealing the presidency but Trump’s actions were legitimate? He also thought Gore’s actions to contest the election were “petulant.” I guess Trump’s were obviously the sign of a strong leader – or something.
Now the committee investigating the events of January 6 are looking closely at Ted Cruz. After his involvement in a successful legal strategy in 2000, it makes sense that he would be a go-to for Trump in 2020.
However, while the political motivations of both actions are completely in line, the legal justifications are totally backwards.
In 2000, the Republican argument was to accept the initial certification of results in Florida, even if a few votes hadn’t been counted. In 2020 ,Trump’s legal team attempted to get certified election results thrown out for pretty much no reason.
Cruz announced he would represent Pennsylvania Republicans in challenging the state’s certification of election results but the Supreme Court threw that challenge out. Then Cruz supported the Texas AG’s argument that he could ask the Supreme Court to throw out election results in Georgia, Pennsylvania, Michigan and Wisconsin.
This is a particularly bizarre position if you’re a state’s rights advocate. No surprise the Supreme Court threw that case out, too.
I guess unlike Cruz, justices do have a limit in how far they’ll go to steal an election. Or maybe they just need a fig leaf of legal justification.
Cruz supported Trump’s claims of widespread fraud. Privately, he was also friends with John Eastman, the law professor who suggested a plan in which Pence refuses to certify the results of the election.
Cruz gave a speech advocating the need for an audit because of possible election fraud, as rioters gathered to storm the US Capitol.
Even after insurgents were removed and senators returned, Cruz continued to object to Arizona’s and Pennsylvania’s certifications.
His attempts failed by 93-6 and 92-7.
As the J6 committee continues the process of obtaining John Eastman’s emails and investigating Cruz’s involvement, we may get evidence of complicity by Cruz not just in legal strategies to overturn the election but also illegal incitement of an attempted coup.
It’s a lesson Cruz learned from 2000. Steal an election?
It’s been done once.
It can be done again.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.