In the plethora of challenges to state election procedures making their way to the U.S. Supreme Court, the specter of Bush v. Gore haunts the judicial landscape. The litigation over Florida’s determinative 2000 vote count resulted in two oral arguments before the highest court in the land, and placed George W. Bush in the Oval Office. With nearly 400 election-related lawsuits filed this year, many over the question of which votes will be counted, a close result on Election Day could once again leave the Supreme Court in a position to issue a ruling that determines who occupies the White House for the next four years.
Bush’s lead counsel in both 2000 cases, renowned Supreme Court advocate Theodore B. Olson, just released to UVA’s Miller Center an oral-history interview about the crucial role he played in that astounding Supreme Court drama. As the nation faces the possibility of another contested Presidential election, Olson’s unique insights provide a roadmap for attorneys who might find themselves pleading the case of who should win the Presidency. Here are seven tactics, in his own words, that he used to win the litigation.
Bring deep knowledge of election law to the argument. “I had helped out in a case from Alabama a couple of years before,” Olson explained. “It concerned an election dispute involving the Alabama Supreme Court, which had gone all the way to the Eleventh Circuit [U.S. Court of Appeals], where the rules were changed after the election, involving the counting of absentee ballots. [T]here was an issue about whether signatures on absentee ballots had to be notarized or not. Before the election they had to be notarized, and after the election they weren’t …. The Eleventh Circuit, which was where we were in Florida, had found that process violated the Equal Protection and Due Process Clauses of the Constitution. I felt that that was a predicate . . . to file a federal lawsuit, trying to stop what was going on [in Florida], what we thought was unfair rule changing after the election ….”
Know the justices. “I have known and had somewhat personal relationships with most of the members on the Court ….,” Olson observed. “I was in the Justice Department when Justice O’Connor was appointed. … I have known her since then and still have enormous admiration and affection for her. She’s just a wonderful person. And Justice Scalia because we were [in the] Office of Legal Counsel. … Justice Kennedy came from California and was at McGeorge Law School. McGeorge is a part of where I went to college. Justice Ginsburg has become a good friend.” But Olson observed in 2012 that “it’s still a very proper, professional relationship. If you’re going to be appearing before the Court, you’re just careful about what you say or what you don’t say.”
Don’t lecture the Court. In the Bush-Gore controversy’s first oral argument, legendary Harvard Law Professor Laurence Tribe served as the Vice President’s counsel. “I can’t remember exactly how well he did,” Olson noted, “but I think he was awfully professorial with the justices, and I mean that in the sense that he is one of the leading constitutional scholars in the United States, and he’s recognized widely as such. I think that his tone was a little bit, ‘I’m going to now tell you about the Constitution.’ He tends to lean over the podium maybe as if he were in a class someplace, dealing with some people that he was going to help understand the Constitution.”
Spot the constitutional violation in your opponents’ vote-count request. “[I]t was also clear that the [Florida] recount was a chaotic system itself,” Olson told his interviewers. “Four different counties were counting the ballots differently. They were unsure of what the rules were, or they were changing the rules. The process by which you count these punch-out ballots is very problematic anyway, and it seemed to be chaotic and the rules seemed to be changing, and the process seemed to be unequal.” Olson saw these actions running afoul of the Constitution’s Due Process and Equal Protection Clauses.
Rely on your appellate litigation experience. When the dispute returned to the justices for a second time, after their first ruling failed to produce clarification of Florida’s recount standards, prominent trial attorney David Boies replaced Tribe as Gore’s lead counsel. “David is very good at synthesizing an argument down into just a few sentences,” said Olson. “And … you think, ‘Oh, my God, he’s right.’ He’s so persuasive. And so I saw him as extremely formidable. He had only argued one case at that point in the Supreme Court, so he didn’t have the depth of immersion throughout his career in federal constitutional questions. He was a trial lawyer more than an appellate lawyer, and he was focused on Florida law. He was very good at making crisp points. Trial lawyers are good at asking questions. Appellate lawyers have to be good at answering questions.”
Hope your opponent tips his hand. The day before the second argument, Olson was stunned to find Boies on Sunday morning talk shows. “I’m sitting in my office with the television turned on,” Olson recalled, “and I have a team of lawyers taking notes as to what he says his arguments are going to be, and I thought, ‘That’s great. He’s giving us a rundown of what his arguments are going to be in the Supreme Court, and he’s not preparing to argue in the Supreme Court. I’m preparing to argue in the Supreme Court and we’re taking notes on what our opponent is saying.’”
Know contested presidential election history. Olson also believed that the Gore team’s reliance on the Florida Supreme Court’s favorable decision to allow a recount to move forward was inconsistent with historical precedent. He thought it wrong that “you can manipulate a close presidential election at the state level, with the Electoral College being what it is, and therefore determine the outcome of a presidential election—we have had very close presidential elections. I had spent some time preparing for this, studying the 1876 election and the 1800 election. I thought that we were on reasonably strong footing ….”
During the five-week legal battle, Olson received a phone call from his client. “My memory is that Governor George W. Bush said, ‘You’ve done the best you can. Go get ’em. No matter what, it’s okay.’”
It was more than okay. Five justices (Rehnquist, Scalia, Thomas, Kennedy and O’Connor) ruled that continuing the Florida vote recount without clear standards constituted an Equal Protection violation. Two of their colleagues (Souter and Breyer) agreed that standardless recounts should not continue, but they argued that Florida could determine recount procedures that passed constitutional muster. In full dissent, Stevens and Ginsburg maintained that the recount could continue without revisions.
Olson won and so did Bush, who, as the new president, appointed Olson solicitor general, the nation’s highest-ranking litigator—a well-deserved honor for the winning counsel in Bush v. Gore. Application of his successful courtroom strategies to 2020’s presidential contest—by either side—would further solidify Olson’s place in American electoral history.
Historians’ perspectives on how the past informs the present
Barbara A. Perry is Gerald L. Baliles Professor and Presidential Studies director at the University of Virginia’s Miller Center.