Maybe you hoped to never hear the words “hanging chad” again. Well, some legal experts are seeing echoes of the Bush v. Gore case in the lawsuits filed President Donald Trump to challenge election outcomes.
The strategy does feel a bit familiar to Cambridge lawyer Gerry McDonough, who represented Vice President Al Gore in the infamous Florida recount of 2000. Although he thinks that the Democratic-party's nominee will defeat Trump, he spoke with GBH News about Trump’s possible legal strategies, the difficulty of overturning votes, and whether “rogue electors” could reshape the outcome of the 2020 race.
The following interview has been lightly edited for clarity.
GBH News: The Supreme Court of Florida had ordered a statewide recount when the U.S. Supreme Court stepped in an stopped the effort in its tracks, leading to a Bush victory. Could that happen again?
McDonough: The Supreme Court, their decision was based on a strange set of principles that the equal protection was violated because different counties had different counting systems. That that kind of argument isn't relevant here at all.
I remember it was on on a Saturday, I was in a courthouse somewhere where the judge was in charge of the election board. And there were people there with cameras from different televisions, you know, network televisions watching this. A French guy from CNN said “They stopped the election!” And we looked up, and they turned on the sound of this television in the courthouse. And sure enough, the U.S. Supreme Court has stepped in and it stopped the recount. So we never got anywhere.
And then the Supreme Court issued a decision saying that the results had to be certified as they were at that point, which led to a victory for George W. Bush. They said in the opinion that this is a one-time decision. That it’s not a precedent.
GBH News: Is there any validity to Trump’s legal claims?
McDonough: I think something may come to play if those extra ballots that arrive after 8 p.m. in Pennsylvania are counted. But they haven't gotten to that point yet. They're still counting mail-in ballots from election day, and I think by the time they finish counting those ballots, I'm pretty confident that Biden [and] Harris will be ahead.
The idea of a recount in Wisconsin is just absurd. I've done dozens of returns and 20,000 votes is an impossible change in an outcome in an election. So I don't really see what's inherent in this strategy. The only kind of strategy that seems to make sense is maybe they're trying to drag things out and get things tied up in the court so there won't be efficient electors at the time the electoral college meets and they'll throw it into the House of Representatives, where they may have a shot at winning.
GBH News: Trump said he would take his case to the U.S. Supreme Court, falsely implying that he could. Yet the Bush v. Gore case was ultimately decided by the U.S. Supreme Court. Can you talk about the difference between the cases?
McDonough: In Bush v. Gore, the state Supreme Court had ruled and there was a challenge to that and you can go from the state Supreme Court to the United States Supreme Court. And that's what had happened. But [Trump’s] gonna have to start in a federal court someplace, and I don't think he can win. So it won't really matter.
GBH News: What is a “rogue elector”?
McDonough: In the last election a handful of electors didn't vote according to the results in their state, and that could happen again this time. Say, for example, that Joe Biden got to 270 electoral votes, and you had one elector, a rogue elector, switch his or her vote. That more dangerous, I think, than anything else.
GBH News: What happens if neither candidate reaches 270 electoral votes?
McDonough: The electoral college meets on Jan. 6, and somebody has to get to 270 votes in the electoral college. If there aren't enough votes in, say, Pennsylvania, then the election is thrown into the House of Representatives. And then the House of Representatives would have to make a decision. This last happened in 1876.
I think that the Republicans would probably be able to win in that fashion. So that may be one of their tactics.
GBH News: That’s a wild scenario. How do you think this election will play out?
McDonough: It will be likely that [Biden'll] get Pennsylvania and Nevada, and I think that would get him to 270. I think a lot of people are convinced Biden’s gonna get Pennsylvania, and he may get Georgia as well. He's got a very commanding lead among votes across the country.
GBH News: In 2000, Al Gore was behind in the voting and trying to catch up. Now it’s Trump. Where do the similarities start and end?
McDonough: It's very hard to try to overturn votes. The one thing you could do is try to try to recount in certain places. We were pretty confident in Florida ... and there's no question in anybody's mind that Al Gore should have won Florida. In West Palm Beach, some precincts that had high numbers of Jewish voters ended up having high numbers of votes for Pat Buchanan, who was essentially an anti-Semite. I mean, right? Things were going on in Florida in 2000.
