Law & the Courts

The Fake History of Bush v. Gore

Palm Beach election official Charles Burton, Democratic attorney Gerry McDonough, and Republican attorney John Bolton examine a ballot, November 18, 2000. (Photo: Reuters)
C-SPAN and other media outlets, in fake-news fashion, have erased the Florida witnesses who sued for a statewide recount on equal-protection grounds.

On April 4, the Washington Post ran a brief item in its “Daily 202” newsletter about the Gorsuch nomination that ended with a warning: “Don’t forget Bush v. Gore, when the Supreme Court — on a party-line vote — delivered the presidency to George W. Bush.” This one sentence neatly encapsulates the conventional view of Bush v. Gore. It’s also completely false. The media establishment has labored mightily for nearly two decades to make sure that what really happened never emerges to disturb the general view on the left that the election — like Justice Scalia’s Supreme Court seat — was stolen.

Articles, television programs, books, and films have cemented this narrative: that the Supreme Court, via a partisan 5–4 decision, simply selected our 43rd president. In reality, this portrayal of Bush v. Gore is far from the truth. The outcome hinged on an equal-protection argument that sprang directly from rulings issued by the Florida courts and was not an invention of the U.S. Supreme Court. Furthermore, seven of the nine justices agreed with it. And yet, almost nobody knows that Justices Breyer and Souter joined with the majority on the question of equal protection. Even fewer people know what actually happened in the courts in Florida.

The false narrative of Bush v. Gore is rooted in the media’s coverage of Election Night 2000. That night, journalists on every television network and cable channel repeatedly informed viewers that the polls were closed in Florida, even though the polls were in fact still open in the ten Panhandle counties in the Central Time Zone. By suppressing voter turnout in the Panhandle, the most conservative part of the state, during the final hour of the election, the press had a hand in instigating the five-week legal battle for the presidency that followed.

In the end, the winning equal-protection argument in Bush v. Gore was introduced into the litigation by a small group of disgruntled Panhandle voters, who testified in the circuit court in Tallahassee about being disenfranchised by the media on Election Night. These voters and their attorney have been virtually erased from history.

While the story of Election Night 2000 is one of voter suppression, the story of Bush v. Gore is one of censorship. And the most heavily censored elements occurred in the Tallahassee courtroom of Judge N. Sanders Sauls.


Teresa Cruce and Jeanette Seymour

On Sunday, November 26, 2000, after nearly three weeks of counts and recounts, Florida Secretary of State Katherine Harris certified the official results and declared Bush the winner of the state’s electoral votes. Vice President Al Gore’s election contest began the next day, when his lawyers filed a lawsuit in the Leon County Circuit Court in the state capital of Tallahassee, the venue for contesting a statewide election.

The Gore team contested the results in three counties, requesting new manual recounts in two of them, Palm Beach and Miami-Dade, both of which Gore had won handily. The case was randomly assigned to Judge N. Sanders Sauls, a wisecracking Southern Democrat. Sauls scheduled a fact-finding trial for the following Saturday, December 2, to determine whether or not Gore was entitled to these selective manual recounts. This left ten days before the Electoral College deadline on December 12.

That Saturday morning, the courtroom was packed. Fifteen witnesses and a couple of dozen lawyers participated in the two-day trial. The Gore team, led by New York super lawyer David Boies, called two witnesses; the Bush team, led by a Tallahassee attorney named Barry Richard, called nine. These eleven witnesses included statisticians, election-machine consultants and experts, Florida canvassing officials, GOP recount observers, and one Broward County police officer, who testified that he couldn’t bring himself to vote for either presidential candidate. For the most part, their testimony was limited to the occurrence and causes of “undervotes” (ballots for which the counting machines could not detect any vote for president) and to the accumulation of “chads” in voting machines.

But then, late in the day on Sunday, after all these witnesses had spoken and been excused, “a barrage of witnesses for various intervening cases were suddenly pushed into the witness box,” according to a Time report on December 3. This “barrage” consisted of four Florida voters — two men and two women — who altogether occupied the stand for 15 minutes. Time continued: “Every one of them was angry with Gore for suggesting that certain counties should be recounted and not every county.”

Before Katherine Harris had certified the Florida results, only candidates and political parties were able to challenge the election. But during the period after certification, Florida law allowed individual voters to dispute the results as well. The two female voters who testified — Teresa Cruce and Jeanette Seymour — stood out in the trial, because they and their lawyer, a 39-year-old personal-injury attorney named R. Frank Myers, argued in favor of conducting a statewide recount. The Bush team wanted all recounts to end, and the Gore team wanted selective recounts only in counties that had overwhelmingly favored their candidate. In a motion filed before the trial, Myers, Cruce, and Seymour also specified that “the Court should identify the objective and uniform standards to be applied statewide during the manual recounts.”

Speaking for roughly three and a half minutes during his opening statement on Saturday, Myers used a literary reference to illustrate the intervenors’ perspective, telling the judge:

Your Honor, from the point of view of my clients, the contest is a lot like, by analogy, George Orwell’s Animal Farm. And if the court will just bear with me, I’ll remind the court that in Animal Farm, there were two pigs that took over the Jones farm, Snowball and Napoleon. And as a result, they established rules, and one of those rules was “All animals are equal.” Now, Napoleon took over the farm and he chased Snowball out. And as a result, a new rule was established: “All animals are equal, but some animals are more equal than others.”

Next, alluding to Gore’s early efforts to recount only four Democratic counties in the days just after the election, Myers distilled his winning argument to its essence by explaining:

And, Your Honor, from the point of view of my clients, all votes are equal when they entered into this election on November 7th. And that’s why we have asked Your Honor to look at this from a statewide perspective. We ask the court to look at the counting of votes statewide, because after the election occurred on November the 7th, from the point of view of the citizens, all votes were equal, but some votes were more equal than others.

When Cruce and Seymour entered the witness stand on Sunday evening, each woman described the particular way the media had affected her during the final hour of voting in the Central Time Zone on Election Night. Cruce went first. She told the court how she became very upset while driving in her car around 6:15 p.m. Central Time on Election Night, when she heard CBS radio and then NPR report that the polls in Florida were closed. Cruce knew the polls in the Panhandle were still open, and she understood that the announcements on the radio would prevent people from voting during the last hour. She said, “I know of a person that worked at some polls and there was a definite change in the polls, in the turnout.”

Seymour testified that she had decided to not bother voting when her husband informed her that the media had called Florida for Gore, even though the polls had not yet closed in the Central Time Zone.

For her part, Seymour said she had decided to not bother voting when her husband informed her that the media had called Florida for Gore, even though the polls had not yet closed in the Central Time Zone. Due to the media’s actions, Seymour asserted, “there’s a lot of votes that were not counted, not just in my area but the whole Panhandle of Florida that should’ve counted.” Arguing for a statewide manual recount, she said, “in order to have a fair and accurate count of the votes, you have to consider everybody’s votes and not just selected counties where they may have a strong Democratic outcome.”

During closing arguments on Sunday evening, Myers argued that, “under the concepts of fairness and equal protection under the law, the Court is required to treat every vote in our state equally.” Invoking Orwell again, Myers concluded, “all Florida votes are equal, Your Honor, and no vote is more equal than another.”

In his closing statement, Gore lawyer David Boies took time to address Cruce’s and Seymour’s testimony. He said:

You’ve heard the intervenors argue that somehow the court should take into account in this contest whether or not the networks prematurely called the race for Vice President Gore to the detriment of Governor Bush. I think the court has no competent evidence before it from which the court could conclude that that had any effect on the election. But irrespective of that and more important than that, whatever effect that had is not relevant to a contest action.


Gore’s Team Never Sought a Statewide Recount

The day after the trial concluded, Monday, December 4, Judge Sauls ruled from the bench, denying Gore everything he had asked for. Additionally, the judge found that any recount would need to include “all ballots in all the counties in this state,” which was exactly the remedy requested by Myers and his clients.

Subsequently, Gore appealed to the Florida supreme court, which reversed Sauls’s decision and awarded the vice president a manual recount of unreadable ballots in Miami-Dade. However, they also mandated something Gore had not asked for: a manual recount of undervotes “in all counties that have not conducted a manual recount or tabulation of the undervotes in this election.”

In their majority opinion, issued on Friday, December 8, they acknowledged:

Claims have been made by the various appellees and intervenors that because this is a statewide election, statewide remedies would be called for. As we discussed in this opinion, we agree.

However, the Florida supreme court failed to establish a uniform standard by which those undervote ballots would be counted, and they ignored the existence of overvotes (ballots for which machines detected more than one vote for president).

Throughout this episode, Al Gore and his surrogates publicly insisted that they wanted to see every vote counted, but, in reality, they never sought this outcome in court. This was especially true by the time the Florida supreme court issued its statewide-recount ruling. Because of the Gore legal team’s own recount efforts in the immediate aftermath of the election, Katherine Harris certified the results almost two weeks late. This essentially cut in half the time that Gore had for contesting the election. Following the Florida supreme court’s ruling, Gore campaign lawyer Ron Klain told Newsweek’s David Kaplan, “I was taken aback by the new and not-asked-for remedy that the court had imposed.” Klain also wondered, “How would we implement a sixty-four-county recount and what new legal issues would such a count raise?”

Panhandle Voters Asked for a Statewide Recount

When the case made it to the U.S. Supreme Court on appeal, Frank Myers submitted a brief in which he argued that “conducting statewide manual recounts without objective standards to implement violates these Intervenors’ equal protection rights, as protected by the Fourteenth Amendment to the United States Constitution.”

During oral arguments before the Supreme Court on Monday, December 11, Bush, Gore, and Katherine Harris were represented by Ted Olson, David Boies, and Miami attorney Joe Klock, respectively. Questions about equal protection and uniformity of standards dominated. Justice Souter noted of the ballots: “All we have are certain physical characteristics. Those physical characteristics we are told are being treated differently from county to county.” He then asked Boies: “In that case, where there is no subjective counter indication, isn’t it a denial of equal protection to allow that variation?” Reluctantly, Boies conceded:

Maybe if you had specific objective criteria in one county that says we’re going to count indented ballots and another county that said we’re only going to count the ballot if it is punched through. If you knew you had those two objective standards and they were different, then you might have an equal protection problem.

Boies impressed upon the justices twice that the Florida supreme court’s statewide recount of undervotes was something “we didn’t ask for.” Later still, Chief Justice Rehnquist noted:

I gathered from the opinion of the Supreme Court of Florida that the Vice President did not ask for as broad a recount as the Supreme Court granted, but that it thought that to do just what he wanted would be unfair and therefore out of fairness, they granted the wider recount, am I correct in that?

Boies replied, “I think that’s right.” Later, he spoke of the statewide remedy as something “that nobody asked for.” But, of course, it was asked for by Frank Myers and the voters from the Panhandle.


Supreme Court Finds a Violation of the Equal-Protection Clause

In the majority opinion for Bush v. Gore, on Tuesday, December 12, the Supreme Court decided: “With respect to the equal protection question, we find a violation of the Equal Protection Clause.” Further along, they wrote: “When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” In his dissent, Breyer — joined by Souter — observed, “I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem.”

With respect to the remedy, Breyer thought they should “permit the Florida Supreme Court to decide whether the recount should resume,” while Souter concluded, regarding the creation of a uniform standard, “I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18.” However, the deadline for choosing electors was December 12, and the clock had run out. The majority wrote, “It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.” They reversed the Florida supreme court’s ruling that the recount proceed, and the results certified by Katherine Harris 16 days earlier became final.

According to David Boies’s biographer, Karen Donovan, the 7–2 split on the equal-protection question is a sore point. In v. Goliath: The Trials of David Boies, she writes, “The fact that two justices in the liberal block had found credence in the Republicans’ equal protection claims — and therefore had not been persuaded by Boies’s arguments to the contrary — was a matter he did not wish to discuss.”


History Erased

In the wake of the December 12, 2000, decision, Frank Myers, Teresa Cruce, and Jeanette Seymour have all but disappeared from the story of Bush v. Gore. In January 2001, attorney Vincent Bugliosi wrote in The Nation, “no Florida voter I’m aware of brought any action under the equal protection clause claiming he was disfranchised because of the different standards being employed.” He argued, “What happened here is that Bush leaped in and tried to profit from a hypothetical wrong inflicted on someone else,” essentially setting the standard Bush v. Gore narrative. (Bugliosi later expanded this Nation essay into a book, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President.)

In his book Too Close to Call, also published in 2001, Jeffrey Toobin writes, “Under contemporary equal-protection doctrine, the majority should have identified the purported targets of this constitutional violation — blacks? women? the poor? Of course, the Court could point to no such class of victims, because there weren’t any.” He ignores the voters in Florida’s Central Time Zone who objected to their votes not being counted. Toobin further claims:

The five-to-four majority tried to suggest that the vote was really seven to two. But Breyer joined Stevens’s all-out dissenting opinion, and Souter said clearly that he thought the recount should have proceeded. Notwithstanding the majority’s attempt at marketing, the opinion was nothing more, and nothing less, than a decision to award the presidency to George W. Bush by a vote of five to four.

The numerous retellings of the Florida recount and Bush v. Gore largely ignore the testimony (and even the very existence) of the intervening voters in the Leon County Circuit Court. Nowhere is this more glaring than in C-SPAN’s documentation of the Sauls trial.

Nothing on the C-SPAN archive website acknowledges that the video is incomplete or abridged. Teresa [Cruce and Jeanette Seymour are among the witnesses who have simply vanished.

Since 2010, C-SPAN has maintained all its recordings dating back to 1987 in a free online library. There are two large segments missing from C-SPAN’s video of the Sunday of the Judge Sauls trial. Together, these missing segments cover approximately 20 percent of the trial transcript. Nine of the twelve witnesses who testified that day are absent. Nothing on the C-SPAN archive website acknowledges that the video is incomplete or abridged. Teresa Cruce and Jeanette Seymour are among the witnesses who have simply vanished.

By excising them from the history of the case, the media have obscured the meaning of the rulings of Judge Sauls and the Florida supreme court. This helped to successfully delegitimize George W. Bush before he was even sworn in as president. Ultimately, Bush v. Gore demonstrates how “fake news” becomes “fake history.”

Update on May 18, 2017

Within hours of the publication of this story, C-SPAN altered their online archive, and nearly four hours of missing footage from the Sauls trial suddenly reappeared. Apparently they had the footage close at hand. You can now watch the testimony of Teresa Cruce and Jeanette Seymour here, starting at 27:18.

Previously, C-SPAN showed the Sunday of the Sauls trial in a single video that was 7 hours, 44 minutes, and 11 seconds long, as you can see in this screen capture taken the day before this article was published.

Currently, C-SPAN has divided this footage into seven separate videos, with a combined run time of 11 hours, 25 minutes, and 19 seconds.

— C. Boyden Gray served as White House counsel under President George H.W. Bush and as U.S. ambassador to the European Union under President George W. Bush. Elise Passamani is the director of research to Ambassador Gray. 


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