Robert Bennett: History of the Bush vs. Gore election

While commenting on the Supreme Court's decision on the Obama Health care plan, many pundits have been bringing up controversial decisions of the past. On the left, a constant refrain has been that the worst decision in modern times was Bush v. Gore, when the Court "stole" the election for Bush.

I am going to respond because I love history and believe it is important that it be accurate. Also, I believe that lawyers who lose cases should not be allowed to rewrite history to their own ends without a protest being raised.

Here are the facts of that episode. (As the saying goes, "You can look it up.")

On election night in November, 2000, with all precincts reporting, Bush was slightly ahead of Gore, albeit in the midst of much controversy. The Gore campaign acted quickly to prevent Bush's certification as the winner by filing suit in Florida that demanded a recount in certain counties. The Florida Supreme Court ruled in Gore's favor, 7-0, and the recount began on his terms.

Watching the way it was being conducted and considering it flagrantly unfair, the Bush campaign filed suit in federal court to stop it. The U.S. Supreme Court ruled for Bush without dissent. It said the Florida procedures were indeed unlawful and sent the case back to the state for it to try again.

A trial on the merits of the case was then held, and the Florida judge who heard it ruled in favor of Bush on every count. The Gore campaign appealed his decision to the Florida Supreme Court, which had been friendly before. It still was, but only by the narrow margin of 4-3. Its Chief Justice, in his dissent, pointed out that the majority justices were openly ignoring the earlier ruling of the U.S. Supreme Court and predicted that their action would be struck down when that body heard the case of Bush v. Gore for the second time.

He was correct. The ruling from the U.S. Supreme Court the second time around contained not one decision but two. The first, by a 7-2 vote, said that the Florida Court was wrong, and the second addressed the question of what to do with the case. Should it be sent back to Florida, giving its officials a third opportunity to deal with it? Or should the ruling be, "Twice is enough," and end the matter. By a 5-4 vote, the U.S. justices chose the second course.

Those are the facts. From them, a case can be made that the Florida Supreme Court was seeking to steal the election for Gore more than the U.S. Supreme Court was seeking to steal the election for Bush. The commentators who insist that the latter group was driven by ideology never mention the wide margins of the Court's first unanimous vote and its second 7-2 vote, both of which went against Gore on substance. They cite only the narrowness of its final 5-4 vote, which was on procedure.

Years later, I was present when retired Justice Sandra Day O'Conner, considered the swing vote on this issue, was asked if she regretted "making Bush President." No, she replied, and pointed out that, aside from the Court's ruling, the final statewide recount that was done, after the ruling, showed that Bush really had won. Whatever else one may think of the Bush Administration, its election was legitimate, and the Supreme Court should not be demonized for saying so.

July is the month we concentrate on our nation's history; we should try to get it right even if doing so upsets our sensibilities.

Robert Bennett, former U.S. Senator from Utah, is a part-time teacher, researcher and lecturer at the University of Utah's Hinckley Institute of Politics.