The Final Arbiter: The Consequences of Bush v. Gore for Law and Politics

13. Reliving Groundhog Day? : The 2004 Presidential Election and the Legacy of Bush v. Gore

It’s been four years and an election. Get over it. —Supreme Court Justice Antonin Scalia, responding to a question about Bush v. Gore from an audience member at the University of Michigan, November 16, 2004 IN THE 1993 hit movie Groundhog Day, actor Bill Murray plays a cynical local TV weatherman who must continually relive Groundhog Day until he becomes a better person. In many ways, the 2004 presidential campaign encapsulates the movie’s theme: Americans appear to be destined to repeat election controversies until the system is reformed. Thus the legions of lawyers, voting irregularities, and calls for new election procedures experienced in 2004 may become standard campaign fare. If so, this reliving of Groundhog Day is in part a legacy of Bush v. Gore. As predicted by many analysts and preelection polls, the 2004 presidential election was close, going right down to the wire in terms of the popular and electoral vote. Many observers wondered if it would be a repeat of Election 2000 and would drag on for thirty-six days or more. Early indications suggested that such prophecies might be fulfilled. Democratic Vice Presidential 263 THIRTEEN Reliving Groundhog Day? The 2004 Presidential Election and the Legacy of Bush v. Gore David B. Cohen and Christopher P. Banks nominee John Edwards’s announcement at 2:30 A.M. on November 3 that “John Kerry and I made a promise to the American people that in this election , every vote would count and every vote would be counted,” did little to allay those fears. Edwards, in fact, did the opposite by vowing to continue to “fight for every vote” (Davis 2004). But as the networks began to predict that Ohio’s electoral votes would go to Bush, it seemed that a clear victor would emerge. Bush Chief of Staff Andrew Card’s pre-dawn speech, declaring “we are convinced that President Bush has won re-election,” demonstrated that the Bush campaign was well prepared for a postelection battle for the White House (Guarino 2004). Card later suggested that Senator Kerry ought to have “more time to reflect on the results,” a shrewd strategic move to pressure Kerry to concede and avoid a long, drawn-out election contest in the courts. The ploy may have worked as Kerry’s concession speech that afternoon largely ended the election drama. Most of the media, along with the public, quickly—and eagerly—accepted the result, putting to rest the fears of a replay of 2000. When the dust cleared, George W. Bush emerged with a 286–251 electoral vote victory.1 At first blush, George W. Bush’s reelection victory appears to be qualitatively different than his disputed first-term win. In contrast to 2000, Bush won the popular vote decisively (by almost 3.5 million votes), an achievement that eluded him in 2000. Notably, Bush was also the first presidential candidate since George H. W. Bush’s 1988 victory to win a majority of the popular vote (50.9 percent). In addition, none of the big battleground states (e.g., Florida, Ohio, and Pennsylvania) had vote margins close enough to raise great and immediate doubt about the identity of the victor. As one postelection report put it, “the margin of victory exceeded the margin of litigation ” (Electionline.org 2004: 2). Still, Election 2004 suffered many of the legal and political problems of the 2000 campaign. Several states, including Ohio, conducted election recounts while others, such as Florida, were called into question. Allegations of fraud, incompetence, and conspiracy abounded on the Internet and in the alternative press.2 Even though the margin of victory was large by 2000 standards , the reluctance by many to embrace Bush’s re-election indicated that the lessons learned from Bush v. Gore were influencing election strategies from both campaigns, as well as in the courts. On November 23, 2004, the General Accountability Office (GAO), an independent research agency of Congress, launched an investigation into whether provisional ballots were handled improperly by many states, and whether there were significant voting irregularities caused by voting machine malfunctions (Margasak 2004). The GAO’s decision coincided with ongoing litigation in the states challenging election procedures, vote counts, and related campaign activities that were alleged to have made the election unfair. DAVID B. COHEN AND CHRISTOPHER P. BANKS 264 ARMIES OF LAWYERS Bush v. Gore impacted Election 2004 in several ways. As predicted by political scientist Andrew Busch...