We’re Living in the Shadows of a Bush v. Gore 2.0

The same people spending money to put Amy Coney Barrett on the Supreme Court are also trying to suppress the vote.

An envelope for an absentee ballot
Photo illustration by Slate. Photo by Tiffany Tertipes on Unsplash.

Nobody, aside perhaps from Judge Amy Coney Barrett, could have missed the implication of Sen. Amy Klobuchar’s line of questions Wednesday about Barrett’s service in the army of GOP lawyers who flew down to Florida to make certain that ballots were counted for George W. Bush in the 2000 election dispute that culminated in Bush v. Gore. If Barrett is confirmed, the Supreme Court will have three justices who worked on behalf of the GOP on the 2000 litigation that resulted in George W. Bush winning that year’s presidential election. Barrett, who testified that she couldn’t recall anymore what work she did for the campaign, joins Chief Justice John Roberts and Justice Brett Kavanaugh as three of the luckiest election lawyers in history, a fact Barrett dismissed in her testimony as an unremarkable coincidence.

It’s not just that court will now feature three former Bush v. Gore lawyers—it’s that it will feature three former *Bush* lawyers. But this isn’t just a story about how the Federalist Society rewards its own loyalists. It’s also an urgent story about a side project of Federalist Society leaders and allies working to assist an effort at voter suppression, while simultaneously working both to manipulate voting rules and stack the judiciary to push a Trump victory and solidify Republican control of government.

Chris Hayes, on MSNBC Wednesday night, reported on that 2000 Florida recount effort. Barrett was, as he explained:

a young lawyer working for Martin County Republicans … who were in a desperate attempt to make sure hundreds of absentee ballots for voters in Republican households were counted … even though local Republicans had actually removed the ballots from the office of the Supervisor of Elections, added the required voter ID numbers … and returned them. And they got those ballots to count: 673 of those ballots would have otherwise been uncounted in a state that Bush ended up winning by 537 votes.

That doesn’t mean that Barrett, Kavanaugh, and Roberts worked in 2000 to suppress the vote. Indeed, Barrett’s work helped to have votes counted from legitimate voters that otherwise could have gone uncounted, even as the main legal team working for Bush blocked a fuller recount of votes in litigation that could have allowed Al Gore to win. It does mean that the bare-knuckle history of litigating to toss some ballots while counting others—an enterprise playing out in courts and legislatures across the country this month—has both a storied history in GOP elections and is also a steppingstone to the highest court in the land.

If that were all there is to report, we could say, as Sen. Sheldon Whitehouse ably demonstrated again at the Barrett hearing, that there is a well-funded machine comprised of conservative legal activists that has captured the courts in ways that thwart majority will and opinion. But even that characterization, one that was mocked by GOP senators as paranoid (Ben Sasse sniffed that Whitehouse was using “Beautiful Mind conspiracy charts”), doesn’t quite capture the extent of the manipulation. If Barrett is elevated to the Supreme Court to fulfill Donald Trump’s repeated (if unlikely) promises that she will cast the deciding vote in Trump’s favor in any postelection Trump v. Biden dispute—“it’s better if you go before the election because I think this is scam that the Democrats are pulling, it’s a scam, the scam will be before the United States Supreme Court. And I think having a 4–4 situation is not a good situation” the president has said—the anti-democratic efforts of the conservative legal movement will have come full circle. And what we saw happen in Bush v. Gore will fade in comparison.

It is not a secret that the conservative legal establishment that prides itself on giving a seat that should have gone to Merrick Garland to Neil Gorsuch, and then helping broker a deal that had Anthony Kennedy retire so his seat could go to Brett Kavanaugh, has turned from a modest debate club to a judicial juggernaut to a vote suppression machine. The two of us wrote in May about new reporting from the Guardian and OpenSecrets that showed the Federalist Society’s mastermind, Leonard Leo, along with Carrie Severino of the Judicial Crisis Network and their dark-money backers, had turned this year from efforts at stacking the courts to:

promoting the Orwellian-named “Honest Elections Project” to pressure elections administrators to limit access to the ballot and to undermine trust in elections. The messaging echoes Trump’s baseless claims that various states’ efforts to let people vote by mail are fraudulent—and turns these lies into policy. “The project announced it was spending $250,000 in advertisements in April, warning against voting by mail and accusing Democrats of cheating,” the Guardian explained. “It facilitated letters to election officials in Colorado, Florida, and Michigan, using misleading data to accuse jurisdictions of having bloated voter rolls and threatening legal action. Calling voter suppression a ‘myth,’ it has also been extremely active in the courts, filing briefs in favor of voting restrictions in Nevada, Virginia, Texas, Wisconsin, and Minnesota, among other places, at times represented by lawyers from the same firm that represents Trump.”

In August the Honest Elections Project financed a massive lawsuit against the state of Michigan demanding that the voter rolls be purged. They sent out letters threatening similar action in other battleground states. As CNN noted, “the group, led by former Heritage Foundation policy analyst Jason Snead, is part of the stepped-up activity among conservative groups to push back on efforts, largely in Democratic-run states, to expand mail-in voting, extend deadlines for counting mailed ballots and otherwise relax voting rules amid the coronavirus pandemic.” CNN further noted that “Honest Elections, which began its work earlier this year, is part of a network established by Federalist Society co-chairman Leonard Leo and the conservative allies who have helped Trump advance the appointment of conservative judges to the federal bench, public records analyzed by nonpartisan Center for Responsive Politics and The Guardian show.”

Last week, the Honest Elections Project issued a new report, trumpeted on Fox News, about supposed “ballot mishaps” that confirm “fears of large scale mail-in voting.” The idea is to project chaos by latching onto administrative snafus and turn them into claims of an election meltdown. It’s the same move as what Trump is doing when he talks falsely about 50,000 ballots dumped in a river. The Honest Elections Project, as well as a coterie of Bradley Foundation–funded anti-voting groups including True the Vote and the Public Interest Legal Foundation, amplifies the message that more voting means more chaos. The project is also represented by the law firm Consovoy McCarthy PLLC, a firm whose head, William Consovoy, works as a personal attorney to President Donald Trump. Barrett would probably see that as just another coincidence too.

These voter fraud claims invariably fail when they are given even the most cursory scrutiny. CNN reported that courts in Illinois, Montana, Ohio, New Jersey, Nevada, Louisiana, and Pennsylvania all rejected Trump campaign efforts to roll back COVID-based voting accommodations, rebuffing the campaign’s arguments that these accommodations would promote voter fraud and dilute the votes of legitimate voters. As Brittany Gibson reported last month in the American Prospect: “It’s also not unusual for these organizations to rescind their claims when a win on the merits appears unlikely. Often the evidence isn’t clear when it’s presented in court, according to several experts. In one Wisconsin case from 2014, the judge wrote in his decision that ‘[s]ome of the “evidence” of voter-impersonation fraud is downright goofy, if not paranoid.’ ” The suits are often meritless, are supported by junk data, and appear to serve largely to bully and distract elections officials. As is the case with the new Honest Elections Project report last week, the real object is to foster public doubt and uncertainty about the possibility of a fair election.

And who is financially backing all this vote purging, again? Well, CNN reported on that over the summer:

Earlier this year, Leo told Axios he was stepping away from his long-time day job as executive vice president of The Federalist Society to start a new venture, CRC Advisors, to help build a new conservative network. (He has retained his board position at the Federalist Society.)

He and his business partner, communications executive Greg Mueller, told Axios that they planned to work with two unnamed existing nonprofits, which would be rebranded as The Concord Fund and The 85 Fund, to help funnel money into conservative battles around the country.

Publicly available corporate records in Virginia, show that Honest Elections Project and several groups, including the Judicial Education Project and the Law and Policy Forum, are aliases for The 85 Fund. The 85 Fund’s officers include Carrie Severino, who runs the influential Judicial Crisis Network, which was at the forefront of advertising campaigns supporting Kavanaugh and Gorsuch.

In an interview with CNN, Snead described his organization as “a project of The 85 Fund.” As a nonprofit, Honest Elections does not have to disclose its donors’ identities to the public, and Snead declined to do so.

The Washington Post last week reported that in a conservative training seminar this past summer, “J. Christian Adams, a former Justice Department official and the president of the Public Interest Legal Foundation … urged the activists not to worry about the criticism that might come their way: ‘Be not afraid of the accusations that you’re a voter suppressor, you’re a racist and so forth,’ Adams said.”

This is where it all ties together: the lawyers who are popping up around the country demanding, under the false flag of “vote fraud,” that voter rolls be purged and voting in a pandemic become more deadly, are coordinated by the same people, and with the same unknown funding that has put more than 200 conservatives judges into lifetime positions on the federal courts. As we concluded in May, all this is a far cry from the “debate club” the Federalist Society has long claimed to be (and still claimed to be at the Barrett hearings). As we wrote then:

That the conservative network is suddenly engaged in spouting unsubstantiated claims of voter fraud to support suppressive voting laws and cast doubt on the legitimacy of elections in which Democrats can win is an activity fundamentally at odds with the spirit of honest debate that is supposed to animate the Federalist Society. It is also the kind of fundamental dishonesty in the service of political aims that is the polar opposite of the rule-of-law values Scalia and others had professed as being at the beating heart of the conservative legal movement’s mission.

There’s one more way in which the ghost of Bush v. Gore, the long shadow of the Brooks Brothers revolt, and the specter of outright vote suppression loom large over the upcoming election and whatever litigation may follow. The unsigned 5–4 decision in Bush v. Gore was widely understood to be a “good for one ride only” holding that would have no precedential force in any future case. (The Supreme Court itself has never cited the case in the intervening decades except in a concurring opinion by Justice Clarence Thomas on a tangential point.) But the cherry on top is that it’s now being dusted off by Trump’s legal team for a reprise in the 2020 election. As Joan Biskupic has explained, Trump’s legal teams have begun to cite the equal protection rationale that supported Bush v. Gore in legal challenges around the country, somehow claiming that the case, which was supposed to have no value, now invalidates state procedures for balloting by mail, because they lack in uniformity in violation of constitutional equal protection. Justice Antonin Scalia signed onto that equal protection decision holding his nose, reportedly calling it, “as we say in Brooklyn, a piece of shit.”

Any one of these challenges, if it reaches the Supreme Court and relies on the logic of the per curiam holding in Bush v. Gore, will now face a 6–3 conservative majority, of which three worked on the litigation—and most of the justices will have been seated by the same secret groups that are funding the litigation. A 6–3 decision in any such lawsuit, citing the equal protection principles discarded after the 5–4 majority handed the election to George W. Bush in 2000, really would signify something akin to Leonard Leo running the table. It would also entrench minority rule in the judiciary and the demise of free and fair elections for the foreseeable future. Just a bunch of crazy Beautiful Mind conspiracy theories? We don’t think so.