American History Tellers - Encore: Supreme Court Landmarks | A Recount in Florida | 6

Episode Date: August 23, 2023

The morning of Nov. 8, 2000, Americans woke up to an undecided election. Pollsters had predicted a close race between Vice President Al Gore and Texas Governor George W. Bush, but no one knew just how narrow the margins would be. It all hinged on Florida, where 25 electoral votes were up for grabs.Over the next 36 days, armies of lawyers waged a bitter fight to determine how to count the votes in Florida. It was a battle that would eventually find its way to the Supreme Court.In its long history, the Court had been asked to weigh in on political matters, but never before had it intervened in the results of a presidential election. The case that became known as Bush v. Gore would ultimately send one man to the White House and expose the Court to intense public scrutiny.Listen ad free with Wondery+. Join Wondery+ for exclusives, binges, early access, and ad free listening. Available in the Wondery App. https://wondery.app.link/historytellersSupport us by supporting our sponsors!See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wondery Plus subscribers can binge new seasons of American History Tellers early and ad-free right now. Join Wondery Plus in the Wondery app or on Apple Podcasts. This is a special encore presentation of our seven-part series on Supreme Court landmarks. We're taking a look back at crucial Supreme Court decisions that fundamentally changed the legal landscape of our nation. But just as with today's court, social movements and partisan politics often influence those decisions,

sometimes in unexpected ways. Imagine it's Tuesday, November 7th, 2000. It's just before 10 o'clock at night and you're in a television studio in New York. You're the producer of a major nightly news broadcast, and tonight you're reporting on the election returns. Live election broadcasts are always frenzied, but this one is quickly turning into a disaster. All right, everyone, cut to commercial. You turn to your associate producer as you walk toward the control room door. Keep an eye on those Florida numbers and let me know the second anything changes.

You walk out onto the set, blinking at the bright studio lights, and approach the anchor's desk. A makeup artist is reapplying his powder. The anchor gives you a sideways glance. What's the latest update? You got those Nirvana numbers yet? No, we've got to talk about Florida. We need to withdraw from the Gore column. It's the latest update? You got those Nirvana numbers yet? No, we've got to talk about Florida. We need to withdraw from the Gore column. It's too close to call. The anchor waves off the makeup artist and stares at you in disbelief. You've got to be kidding me. I called Florida for Gore two hours ago on national television. I don't know what to tell

you. Our exit poll service is usually on point, but tonight the results are screwy. We just got word they made a mistake in their numbers. This thing is still wide open. We're supposed to be a source people can trust. What else can we do? Bush and Gore are just a few votes apart. I'll tell you what I know as soon as I find out more. You stare up at the clock at the wall. You've got 30 seconds until the commercial break ends. The anchor shakes his head and straightens his tie. Just one more thing. What? What is it? Make sure we don't blow this again. The last thing his head and straightens his tie. Just one more thing. What is it? Make sure we don't blow this again. The last thing we want is to screw this up twice in one night. You nod and rush out of the studio. You have no clue what's going to happen next,

or who is going to be sitting in the White House when all of this is over. One thing is clear, though. This is quickly becoming an election the likes of which America has never seen. Hey, this is Nick. And this is Jack. And we just launched a brand new podcast called The Best Idea Yet. You may have heard of it. It's all about the untold origin stories of the products you're obsessed with. Listen to The Best Idea Yet on the Wondery app or wherever you get your podcasts. Kill List is a true story of how I ended up in a race against time to warn those who lives were in danger. Follow Kill List wherever you get your podcasts. You can listen to Kill List and more Exhibit C true crime shows like Morbid early and ad free right now by joining Wondery Plus. From Wondery, I'm Lindsey Graham President Al Gore or Texas Governor George W. Bush had won the presidency. It soon became clear that the entire election would come down to the swing state

of Florida. At first, the major networks called the state and its 25 electoral votes for Al Gore. But two hours later, they reversed course. The race was too close to calm. By the next morning, Bush and Gore were still neck and neck. Rarely in American history had an election outcome been so uncertain. The nation was plunged into an agonizing five-week standoff and a chaotic flurry of lawsuits to determine how to count the ballots in Florida. Finally, the Supreme Court stepped in, taking an unprecedented role in resolving the election. The case that became known as Bush v. Gore moved at warp speed as the justices wrangled over a ruling that would

decide the presidency and end up charting polarizing new territory for the nation's highest court. This is Episode 6, A Recount in Florida. In the fall of 2000, the nation was consumed by the closest election in modern history. Democratic nominee Al Gore had spent the last eight years serving as vice president to Bill Clinton, who was ending his run in the White House with a mixed legacy. During his campaign, Gore walked a fine line between tying himself to Clinton-era prosperity while at the same time distancing himself from Clinton's personal controversies. His Republican opponent was Texas Governor George W.

Bush, the folksy scion of a powerful political dynasty. The son of the 41st president, Bush surrounded himself with veteran political operatives, including his running mate Dick Cheney. Bush's platform proposed a sweeping, across-the-board tax cut and promised to restore dignity to the White House, a direct shot at Clinton's impeachment for lying to prosecutors about an affair with a White House intern. Meanwhile, Gore campaigned on strengthening Social Security and issuing smaller tax cuts for middle and lower income people. He had also written a treatise warning about the dangers of climate change, leading Bush's father, former President George H.W. Bush, to mock him as ozone man.

In public opinion polls, voters gave Gore the edge on policy matters, but they preferred Bush as a person. Viewing him as far more relatable than his opponent, voters deemed Bush the candidate they'd rather grab a beer with. But there was an additional twist to the race. Third-party candidates were drawing strong support. Ralph Nader, a left-wing consumer advocate, and Pat Buchanan, a conservative pundit, were both attracting attention. Nader especially

was drumming up excitement from voters on the campaign trail, offering ideas that fell outside the mainstream political debate, such as universal health care, free public higher education, and ending the war on drugs. As election day loomed, pundits and pollsters predicted a close race, with tight margins in a number of battleground states. And as voters began casting their ballots on November 7th, it still seemed the election was a toss-up. Americans knew that the election could come down to Florida. Just two years earlier, the state had elected a Republican governor. But in the fall of 2000, polls showed Gore had the edge with the state's large block of elderly voters. But within hours of polls opening, a number of polling stations began reporting problems.

Soon, these problems would upend the entire race. Imagine it's the morning of November 7, 2000. You're at a strip mall in West Palm Beach, Florida, where you've just cast your ballot for the presidential election. And here's your sticker. Thanks for voting, ladies. You and your friend take a sticker from an eager volunteer. You absentmindedly place it on your shirt as you walk out the door, feeling a little dazed.

Your friend turns to you. I sure hope Gore is able to eke out a win. Now that we've done our part, though, how about grabbing some lunch? I saw a new spot opened up around the corner. Was it just me, or was that ballot a little confusing? I've voted in every election in the past 40 years, and I've never seen a ballot like that before. Your friend nods.

The format was a little strange. I don't know why they felt the need to put the punch holes down the middle with the candidates' names on either side. And the names didn't clearly line up with the holes. I've got to tell you, I'm a little worried I just voted for Pat Buchanan. No, you filled it out correctly. Gore was the second punch hole down just after Bush. No, no, no, Gore was the third punch hole. Buchanan was the second. He was between Bush and Gore, but on the other side of the page. No, no, Gore was definitely the second. Are you sure? If that's true, I did vote for Buchanan. I would never vote for that man. You've cast your ballot for Democrats ever since Jack Kennedy ran against Richard Nixon.

You feel sick at the thought that you might have just thrown away your vote. Your friend hikes her purse up on her shoulder, a determined look on her face. Well, there's got to be something you can do. You should get a do-over. We'll just go back in and ask for a provisional ballot. You shake your head. They don't have those in Florida. I'm going to go back and talk to a poll worker. Maybe they can give us a number for the elections office or something. Your stomach is in knots as you walk back into the polling station. If the ballots were this confusing for you, a veteran voter, what does it mean for everyone else in Palm Beach County? You have a sinking feeling that this election could go horribly wrong.

In Florida, Election Day 2000 was marked by chaos and confusion. In Palm Beach County, a poorly designed ballot known as the Butterfly Ballot led thousands of voters to mistakenly cast their votes for third-party candidate Pat Buchanan. In Duval County, which had a majority black population, some 22,000 ballots were rejected because voters had chosen more than one candidate. And outdated voting machines in several precincts rejected thousands of ballots because of hanging chads, where voters had failed to fully punch out the paper when they made their selections.

Florida was also unique for another reason. Bush's younger brother, Jeb Bush, was the governor of the state. And the person who would certify the results of the voting, making the count official, was Secretary of State Catherine Harris. But in addition to serving as the top elections official in Florida, Harris had also been the state's co-chair of George W. Bush's campaign for president. On election night, Bush watched the returns at the governor's mansion in Austin,

while Gore and his team hunkered down in a suite on the top floor of a Nashville hotel. Gore was leading Bush in the national popular vote. But what mattered was the Electoral College, where the candidates were neck and neck in the race for the 270 electoral votes needed to capture the White House. Both camps anxiously watched the results come in from Florida. Just before 8 o'clock Eastern Time, a few minutes before the Florida polls closed, the major networks called the state for Gore, putting him on track to win the White House. But votes were still being cast in the Florida panhandle, where Bush had a lead, and there were problems in the early tallies from other parts of the state. Just two hours after projecting that Gore would win Florida, the networks declared the state too close to call.

Just after 2 a.m., the networks reversed course yet again and called Florida for Bush. In the early hours of the morning, Gore called his rival to concede defeat and headed to Nashville's War Memorial Auditorium to deliver a concession speech. For hours, supporters had been waiting in the cold, steady rain to hear from the vice president. But just as Gore was about to walk up onto the stage, a campaign official caught up and stopped him. Bush's lead in Florida was rapidly disappearing. Now, just 2,000 votes separated the candidates. Gore campaign officials believe the vice president still had a fighting chance. Gore's running mate, Joe Lieberman, pressed him to hold off, saying, Ow, you can't concede.

And Gore replied, You're damn right, and I'm not conceding. So just an hour after calling Bush to concede, Gore picked up the phone and called the Texas governor once again. This time he retracted his concession, telling his rival, Circumstances have changed dramatically since I first called you. The conversation was short and icy. Bush explained that his little brother had told him he had won the state, and Gore replied, your little brother is not the ultimate authority on this. Preparing for a fight, both campaigns flew in teams of lawyers and

volunteers to Florida. When dawn broke that morning, Bush led Gore by just 1,784 votes. Because his margin was so narrow, state law mandated an automatic machine recount of all votes. In the coming days, the race tightened even further. On November 10th, a machine recount reduced Bush's lead to a mere 327 votes out of nearly 6 million cast across the state. More problems also emerged about the polls, including reports of flawed ballot designs, voting machine malfunctions, and ballots where more than one preference was indicated or none at all. The Palm Beach butterfly ballots made the front page of the New York Times. Meanwhile, Americans across the country waited to learn who their president would be. The race seemed more uncertain than ever, and Gore discussed his options with advisors.

Under state election law, he had the power to demand a full recount in all 67 Florida counties, but Gore opted for a more measured approach. 48 hours after the polls closed, he requested a manual recount in just four contested counties, Broward, Miami-Dade, Palm Beach, and Volusia.

All four counties were heavily Democratic, and all four had been the site of widespread ballot problems. The Gore campaign asked that in each of these counties, volunteers and election officials go back and count every single vote by hand. The recounts would be tedious and time-consuming, made all the more challenging by a fast-approaching deadline. Florida law required that all counties certify their returns to the Florida Secretary of State within seven days of voters going to the polls. This meant the recounts would need to be completed by Tuesday, November 14th. Gore and his team were keenly aware that they were fighting on Bush's turf. Though Bush's brother, Governor Jeb Bush, had officially recused himself, he did supply the Bush campaign with lawyers to fight the recount. And Bush's campaign co-chair,

Secretary of State Katherine Harris, would play a central role in the counting. As the recount got underway, Harris would be responsible for legally certifying the contested balance. She insisted she would follow the letter of the law, but her role as co-chair of Bush's Florida campaign drew skepticism. During the primary, Harris had joined Jeb Bush and more than 100 other Floridians on a January trip to New Hampshire, dubbed the Freezin' for a Reason tour. Harris had been photographed handing out bags of Florida oranges to Bush supporters. Many speculated now that she hoped to be handed an ambassadorship if Bush were elected. In the days following the election, the Bush campaign also deployed a key advisor, Mack Stepanovich, to give strategic advice and counsel to Harris' office. Nicknamed Mack the Knife, Stepanovich was a colorful Republican power broker and a fixture of Florida politics. He was so well-known to local media, the Bush team had to drive him

in secretly to Harris's office to avoid being seen. Stepanovich would use his knowledge of Florida's electoral system to try to shut off the recount at every step. Later, he summed up the Republican strategy on the election, to make it end, to get it over with, to just keep squeezing down the options. Bush's team insisted that the election was over and that Bush had won. In their eyes, recounts were nothing less than changing the rules after the game had been played. They sued to stop the recounts in federal court, but on Monday, November 13th, the court ruled against them, declaring the recount must

proceed. That same day, Katherine Harris announced that she was sticking with the November 14th certification deadline, giving counties just one more day to submit their returns. But only a few days had passed since the Gore team had requested a manual recount in four counties. In that time, only Volusia County had made real progress. Miami-Dade was not even scheduled to start their recount until Tuesday the 14th, the same day that Harris had vowed to certify the results. The Gore campaign spent Monday in court trying to force Harris to extend the deadline. A state judge ruled that the Tuesday deadline would stand, but that additional recounts could be considered later at Harris' discretion. When Tuesday finally came, only Volusia County's recount was complete, giving Bush a 300-vote lead

across the state. The other counties were nowhere near finished. Harris announced that she would review late returns only if the counties explained the delays in writing by 2 p.m. on Wednesday, November 15th. Miami-Dade, Broward, and Palm Beach counties immediately sent Harris explanations, saying they needed more time to sort through ballot discrepancies. Officials in Miami-Dade said they expected the manual recount to reveal significant differences in its original results. Miami-Dade was Florida's most populous county and had the potential to play a pivotal role in the outcome. But Harris rejected their explanations, announcing that none justified an extension. Speaking to reporters on the night of Wednesday, November 15th,

Harris said, I've decided it is my duty under Florida law to exercise my discretion in denying these requested amendments. No further votes from the hand recounts would be accepted. Harris declared that the final certified Florida vote count would be announced on Saturday, November 18th,

once the overseas absentee balance came in for each county. Nowhere in the Constitution is there a time limit on counting votes in a presidential election. But by citing her power of discretion, Harris had instituted one nonetheless. If Gore wanted the recount to proceed, he was going to have to push back in the courts. He would have to get a state judge to force an extension. But time was running out, and all

eyes turned to Tallahassee, where the Florida Supreme Court would decide the next battle of the 2000 election crisis. Now streaming. Welcome to Buy It Now, the show where aspiring entrepreneurs get the opportunity of a lifetime. I wouldn't be chasing it if I didn't believe that the world needs this product. In each episode, the entrepreneurs get 90 seconds to pitch to an audience of potential customers. This is match point, baby. If the audience liked the product, they'd pitch them in front of our panel of experts, Gwyneth Paltrow, Anthony Anderson, Tabitha Brown, Tony Hawk, Christian Siriano. These panelists are looking for entrepreneurs

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science, and religion, and how even today we remain enthralled to his strange creatures of the night. You can binge all episodes of The Real History of Dracula exclusively with Wondery Plus. Join Wondery Plus and The Wondery app, Apple Podcasts, or Spotify. As the fight to recount the ballot made its way to court, Al Gore's legal team tried to sharpen its strategy. The team was led by David Boyes,

a New York attorney who dressed in cheap suits and black sneakers. But Boyes was skilled at explaining complex legal concepts, and he became the public face of Gore's court battle. On Thursday, November 16th, Boyes filed an emergency motion in the Leon County Circuit Court for an injunction against Katherine Harris, hoping to force her to let the three outstanding counties finish their recounts. The next day, the two campaigns anxiously awaited a decision. All knew that the ruling could determine the outcome of the election. Harris had promised to certify the results in just 24 hours. The state was nearly done counting overseas absentee ballots, which would boost Bush's lead to 930 votes.

In a devastating blow to Gore's battle to prolong the recount, on Friday, November 17, the Leon County Circuit Court rejected Gore's motion. Bush's team celebrated their victory, but not for long. Late that afternoon, the Florida Supreme Court stepped in. Six of the seven justices on the bench were registered Democrats. The court had a reputation for going to battle with a Republican-controlled legislature, having recently overturned lawmakers' efforts to restrict abortion and limit death penalty appeals. Without being asked, the Florida Supreme Court stayed the lower court's decision, thus blocking Harris from certifying the election. In capital letters, the court declared,

it is not the intention of this order to stop the counting. The recounts would continue then, opening the potential for the recounted ballots to cancel out Bush's lead in the overseas vote. Then, on Tuesday, November 21st, exactly two weeks after Election Day, the state Supreme Court ruled that Secretary Harris must include the results of the manual recounts in the state's final tally. And it handed down a new deadline, that Sunday, November 26th, giving the counties five more days to complete their work. The judges condemned Catherine Harris's decisions, branding them unreasonable, arbitrary, and contrary to law. Outrage spread through the Bush camp. James Baker, possibly the most seasoned political operative in America, was

leading the team. Baker had served as White House Chief of Staff to Ronald Reagan, as well as Bush's father, George Herbert Walker Bush. In a public statement, Baker attacked the court for changing the rules in the middle of the game and inventing a new system for counting the election results. He had his team file an appeal with the U.S. Supreme Court. In the meantime, Gore's allies were thrilled. It seemed that as long as Broward, Palm Beach, and Miami-Dade counties kept counting votes, victory was within reach. With recounts underway, Gore had gained 166 votes in the three counties, helping him make a dent in Bush's 930-vote lead.

The recount would decide the election once and for all, and in their minds, Al Gore was going to win. But passionate Bush supporters were preparing to strike back, doing whatever they could to stop the recount. Imagine it's Wednesday, November 22, 2000. You're in an office building in downtown Miami, ground zero of the Miami-Dade County recount. You're in an office building in downtown Miami, ground zero of the Miami-Dade County recount. You're a recount specialist, helping with the laborious process of examining thousands of ballots by hand. As you examine another ballot, the volunteer next to you, a woman in her 50s,

turns to you. You got any plans for Thanksgiving tomorrow? No, I wish. My wife and kids are going to have to go on without me. Otherwise, we'll never finish this by Sunday. So you just have a piece of turkey for me. You hold up a ballot toward the light, squinting at the hanging paper chads in confusion. What is it with all these ballots punched on the seventh hole? Bush's votes correspond to the fourth hole, Gore's to the sixth, but there's no candidate for the seventh. The other volunteer furrows her brow. Why would that be the case? Maybe it's a problem with the machine. Let me try something.

I'm going to go ask a clerk for a sample ballot. The clerk hands you a ballot with the words Official Democratic Party Training Ballot written across the front page in large capital letters. You thank her and walk across to the punch card machine. Suddenly, there's a furious thumping. He took a ballot. He's stealing a ballot. Look, he's a thief. A middle-aged man is banging on the glass wall

that separates you and the tabulation room from dozens of people crowded into the vestibule outside. He's stealing a ballot. The yelling stops you in your tracks. How did all these people get here? You walk out into the vestibule to find out what's going on. You approach the man, hoping to diffuse the tension and suspicion. No, no, no. No one's stealing any ballots.

See, this is a sample ballot. It's blank. Look, nothing. But the man ignores you and turns back to the crowd. He stole sample ballot. It's blank. Look, nothing. But the man ignores you and turns back to the crowd. He stole a ballot. It's a sham. They're stealing the election. He's stealing the election. I'm not stealing. There's no cheating. I promise you, we are trying to do our job. Stop the count. Stop the fraud. The crowd is just getting angrier. They start closing in on you, reaching out to grab the ballot from your hands. You fight your way to the elevator, desperately pushing the button. Stop the count! You manage to slip inside the elevator just ahead of the mob.

You stare down at the ballot still in your hands, stunned. Now you're not just worried about the recount. You're worried about your own safety. On November 22nd, nearly 100 Republican protesters descended on a vote counting room in Miami-Dade County with the hopes of shutting down the recount.

The Wall Street Journal described the crowd as 50-year-old white lawyers with cell phones and Hermes ties. Many were Republican campaign staffers and congressional aides. The protest, which became known as the Brooks Brothers Riot, quickly grew chaotic. The protesters harassed, punched, and kicked recount volunteers until sheriff's deputies finally broke up the mob. Two hours later, the Miami-Dade canvassing board stopped the recount. County election supervisor told the New York Times that the protests had influenced their decision,

citing concerns about public perceptions that the recount was not open or fair. Gore's team tried to get a court order to restart the Miami-Dade recount, but his motion was denied. Miami-Dade's 650,000 ballots would not be re-examined. Now, only Broward and Palm Beach counties were still counting ballots. With Miami-Dade out, things were looking up for the Bush campaign. Over Thanksgiving, the Texas governor added another 123 votes. The new votes came from re-examined overseas ballots that had originally been tossed out due to missing postmarks or witness signatures.

Several Republican-dominated county canvassing boards voted to include the ballots, drawing criticism for a, quote, Thanksgiving stuffing. Then on Friday, November 24, the Bush campaign won another victory. The U.S. Supreme Court announced it would hear Bush's appeal of the Florida Supreme Court decision mandating the inclusion of the recounted ballots. But that wasn't all. The court announced it would fast-track the hearing. Oral arguments would begin in exactly one week on Friday, December 1st. Lawyers on both sides scrambled to get ready. Back in Florida, with Republicans successfully narrowing down the counties allowed

to check for flawed ballots, the Gore campaign tried to focus on winning every last vote of the manual recounts. When November 26th finally arrived, the deadline mandated by Florida's Supreme Court, Gore's chances at the presidency seemed to be slipping away. Only Broward County finished its recount on time. Miami-Dade had stopped altogether, and Palm Beach County delivered its results two hours late. That evening, Secretary Harris officially certified the Florida election for George W. Bush by a margin of 537 votes. Neither the Miami-Dade nor Palm Beach recounts were included in the results. The next day, Gore sued Harris and the Leon County Circuit Court in Tallahassee to contest the certified results, arguing that they were

illegitimate because the recount was unfinished. Gore's lawyer, David Boyes, asked for an immediate hand recount of 14,000 disputed ballots from Miami-Dade and Palm Beach counties, telling the judge, here, the witnesses are primarily the ballots. But the judge delayed the recount. Gore's team would have to wait to find out the fate of those ballots. The focus now turned to the nine men and women behind the bench of the U.S. Supreme Court, who for the first time in its history was about to weigh in on a case that could decide a presidential election. In 2000, the Supreme Court was led by Chief Justice William Rehnquist, who had been appointed by Richard Nixon. Early on, Rehnquist was seen as far more conservative than his fellow justices.

He was one of just two dissents in the landmark 1973 case Roe v. Wade. But over the years, new Republican appointments had shifted the court to the right. It ruled in cases upholding the death penalty and allowed new restrictions on abortion. One of the conservative bloc's principles was the prominence of states' rights, and the Rehnquist Court had developed a reputation for letting state law take precedent. If they stuck to that legal philosophy, it seemed likely they would defer to Florida's state Supreme Court in this case as well, which would allow the recount to continue. But the court was in a tight spot.

Regardless of the legal issues involved, the practical outcome of their ruling was unavoidable. Every indication so far was that the longer the recount went on, the more likely it was that Gore would be the winner. Likewise, if the recount were halted, Bush's lead would be preserved, and Harris's certification of the results would stand. On Friday, December 1st, the court heard Bush's appeal, arguing that the Florida Supreme Court was wrong to force Katherine Harris to extend the certification deadline and allow the recount. The following Monday, in an unusual move, the court vacated the Florida Supreme Court's decision and ordered it to clarify its ruling. The justices noted there was considerable uncertainty as to the precise grounds for the state court's ruling.

To many observers, it was a warning shot at the Florida Supreme Court and a sign that the two courts were at odds. And the Florida Supreme Court would take another week to respond, irking the Supreme Court further. Meanwhile, Gore's team was still arguing a separate case in the lower courts in Florida, Gore v. Harris. Gore's lawyers had just spent two days in Leon County Circuit Court in Tallahassee challenging Harris' certified results

and asking that 14,000 ballots from Miami-Dade and Palm Beach be re-examined. The same day that the U.S. Supreme Court ordered Bush's appeal back to the Florida Supreme Court, the Leon County Circuit Court rejected Gore's request for an immediate hand recount in Gore v. Harris. Gore appealed that decision to the state Supreme Court, setting up the decisive clash that would determine the outcome of the election. A month had passed since Election Day, and with Harris's certification in hand, Bush tried to send a message that he was the rightful winner.

He began holding meetings at his Texas ranch, putting a transition team in place for the White House. Meanwhile, without a full recount, Gore was running out of paths to victory. His hopes rested on his appeal in the Florida Supreme Court. So far, the state's highest court had sided with him, and Gore believed he still had a good shot. His allies, though, were less confident. But on December 8, in a 4-3 decision, the Florida Supreme Court ruled in Gore v. Harris, ordering an immediate hand recount in all

counties where the machines did not register votes because of ballot defects. Gore's lawyers had only asked for manual recounts in two counties, Palm Beach and Miami-Dade. They had intentionally avoided pushing for a more sweeping statewide recount, focusing their limited time and resources on counties with widely reported problems. The Bush team accused Gore of cherry-picking Democratic-leaning counties. But now, the Florida Supreme Court was ordering 60,000 ballots to be recounted across the state.

Gore's team was stunned, but their joy was dampened by the fear that the decision would invite scrutiny by the U.S. Supreme Court. And they were right. Bush immediately fired back and appealed the decision. He and his allies had no interest in an even more expansive recount. Katherine Harris had already certified the election results in Bush's favor. At best, opening up more scrutiny of flawed ballots would preserve Bush's lead. At worst, another recount would tip the results against him. And indeed, with the new recount, Gore began to steadily gain votes. His team once again dared to hope that their candidate might actually win. But on Saturday, December 9th,

the Supreme Court stepped in to stop the recount once again. In a 5-4 ruling, it issued a stay, penning a hearing that would take place two days later. All vote counting would stop until the court could come to a decision. Never before had the Supreme Court intervened in electoral vote counting. When his chief lawyer told him the bad news, Gore finally lost the optimism that had buoyed him over the past month, simply replying, I see. In two days, the highest court of the land would finally decide the fate of the 2000 election in a case that would now simply be known as Bush v. Gore. After a maelstrom of lawsuits, challenges, and recounts, the presidency would ultimately come down to the nine justices of the Supreme Court. But with the court divided, the final outcome was anything but certain.

I'm Tristan Redmond, and as a journalist, I've never believed in ghosts. But when I discovered that my wife's great-grandmother was murdered in the house next door to where I grew up, I started wondering about the inexplicable things that happened in my childhood bedroom. When I tried to find out more, I discovered that someone who slept in my room after me, someone I'd never met, was visited by the ghost of a faceless woman. So I started digging into the murder in my wife's family, and I unearthed family secrets nobody could have imagined. Ghost Story won Best Documentary Podcast at the 2024 Ambees and is a Best True Crime nominee at the British Podcast Awards 2024. Ghost Story is now the first

ever Apple Podcast Series Essential. Each month, Apple Podcast editors spotlight one series that has captivated listeners with masterful storytelling, creative excellence, and a unique creative voice and vision. To recognize Ghost Story being chosen as the first series essential, Wondery has made it ad-free for a limited time only on Apple Podcasts. If you haven't listened yet, head over to Apple Podcasts to hear for yourself. In the Pacific Ocean, halfway between Peru and New Zealand, lies a tiny volcanic island. It's a little-known British territory called Pitcairn,

and it harboured a deep, dark scandal. There wouldn't be a girl on Pitcairn once they reach the age of 10 that would still have heard it. It just happens to all of us. I'm journalist Luke Jones, and for almost two years, I've been investigating a shocking story that has left deep scars on generations of women and girls from Pitcairn. When there's nobody watching, nobody going to report it, people will get away with what they can get away with.

In the Pitcairn Trials, I'll be uncovering a story of abuse and the fight for justice that has brought a unique, lonely Pacific island to the brink of extinction. Listen to the Pitcairn Trials exclusively on Wondery Plus. Join Wondery Plus in the Wondery app, Apple Podcasts or Spotify. As the Supreme Court prepared to hear oral arguments for Bush v Gore, many knew the decision might come down to Justice Sandra Day O'Connor. O'Connor became the first woman to serve on the Supreme Court after Ronald Reagan appointed her in 1981. O'Connor was a registered Republican, but in her two decades on the bench, she had broken ranks in a number of high-profile cases, including rulings upholding the constitutionality of abortion and affirmative action in higher education. The Gore camp hoped that they could count on those

instances of independence. They also hoped that O'Connor's background as a state judge and legislator would lead her to side with the Florida Supreme Court in allowing the recount to continue. But O'Connor's personal views hinted at a complicated picture. On election night, she attended a party to watch the returns with friends. When the networks initially called the race for Gore, she'd expressed sharp disappointment. This is terrible, she told the guests, and walked away from the television. O'Connor was at the center of a divided court. There were three reliable conservatives, Rehnquist, Antonin Scalia, and Clarence Thomas, who were often joined in their rulings by O'Connor

and her fellow moderate conservative, Anthony Kennedy. On the other side were four liberals, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. On December 11th, the mood in the court was somber as oral arguments began for Bush v. Gore. Representing Gore, David Boies argued that the U.S. Supreme Court had no reason to intervene in a state matter.

The recount should continue in order to ensure that every vote was registered correctly. Representing Bush, conservative Washington lawyer Ted Olson argued that the Florida Supreme Court had overstepped by ordering the manual recount of tens of thousands of ballots. Olson claimed that under Article II of the Constitution, state legislators make the rules for elections, not state courts. Judge Anthony Kennedy critiqued this argument, noting that state courts often interpret the actions of state legislatures. Olson conceded, it may not be the most powerful argument. Next, his focus turned to the Equal Protection Clause of the 14th

Amendment. Olson argued that the manual recount violated the principle of one person, one vote because the problematic ballots were counted in some counties and disregarded in others. Boies took the opposite stance. He rejected the idea that different standards in different counties violated the Equal Protection Clause. He was aided by Justice Ruth Bader Ginsburg, who noted that different ballot designs were commonplace and that no court had ever mandated that a state evaluate all ballots by a single standard. After an intense 90 minutes, the hearing was over and it seemed that neither performance had changed any minds. The next day, on December 12th, the court reached a decision. It declared the Florida court's order to keep counting the ballots a violation of the Constitution's Equal Protection Clause because different standards for counting were being used in different counties.

It was a 7-2 ruling, with Justices John Paul Stevens and Ruth Bader Ginsburg dissenting. But the fate of the recount and the entire 2000 election would come down to the next decision. In a 5-4 ruling, the court said that there was no way to do a proper recount given the time constraints. Under federal election law, Florida was scheduled to submit its electors the following week. The ruling closed off any chance of completing a recount. But by citing the election timeline as a reason not to do the recount, the court broke the clear majority and invited strong dissents. Justices David Souter and Stephen Breyer, who had joined the majority in the first decision, now joined Stevens and

Ginsburg in the minority. Souter argued that a new recount, one that was in line with the Constitution, would still be possible and should be pursued. And since constitutional rights were at stake, the election timeline should be a secondary consideration. But a full recount would never come. Moderate conservatives O'Connor and Kennedy voted as they had when they ordered the stay three days earlier, joining the three most conservative justices on the bench in the majority. This pair hastily wrote the majority opinion. They were careful to note that their ruling was a single-use decision, declaring,

Our consideration is limited to the present circumstances, making sure that this decision would not be used to serve as precedent for future cases. After a contentious 36-day standoff, the Supreme Court's decision effectively made George W. Bush the 43rd President of the United States. The same day that Bush v. Gore was decided, Florida was required to submit its electors' votes for president. The electors voted for Bush. The following morning, Al Gore called Bush to concede again. At long last, the 2000 election was over, and Bush the victor. Never before had the Supreme Court told a state how to count its ballots. The five Republican appointees who made up the majority had a reputation for deferring to state

court decisions, but in Bush v. Gore, they ruled against the Florida court. To many legal observers, the ruling set a dangerous example. In January 2001, more than 500 law professors published a joint statement in the New York Times accusing the Supreme Court of using its power to act as political partisans. But the most memorable criticism came from the court itself. In his dissent, Justice John Paul Stevens condemned the use of the Equal Protection Clause as the basis of the court's decision. Rather than ensuring equal protection, he argued, the court's ruling had deprived thousands of Floridians of their right to have their votes counted. He pointed out that the ruling effectively left those voters without a voice.

Stevens also criticized the partisan nature of the decision, concluding, Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law. Defenders of the ruling affirmed that the decision was necessary to end the national crisis,

but still many acknowledged the court's flawed reasoning. Bush had won Florida by 537 votes out of 6 million cast in the state, giving him a narrow victory in the electoral college. He lost the national popular vote by a half million votes. It was the first time in over a century that a candidate had won the White House while losing the popular vote. Americans largely accepted the ruling in Bush v. Gore, but the razor-thin margins would cast a shadow over Bush's presidency. Imagine it's a spring day in 2001, and you're in a government building in Jacksonville, Florida.

You're a researcher with the Florida Ballots Project, part of the team reviewing nearly 180,000 ballots across Florida. You're trying to with the Florida Ballots Project, part of the team reviewing nearly 180,000 ballots across Florida. You're trying to figure out what would have happened if there had been a full statewide recount. All right, here's the first box. All right, well, thanks. Better get started. You look past the county worker to the closet behind him, daunted by the large stack of boxes filled with ballots you need to sort through. The county worker opens the box and glances at you with suspicion. So I need to remind you that you are not authorized to touch the ballots.

Only I'm allowed. That's noted. The worker takes the first ballot out of the box and holds it up for you to review. You take a look, but nothing seems amiss. Okay, all clear. I don't know why you people are bothering with this. The election was over months ago. Bush won. It's time you accept it. We just want to determine what would have happened if every vote had been thoroughly examined. But I don't get it. These votes have been examined. The worker holds up another ballot. Hold up. Turn that one to the side for me.

The worker rotates his hand to give you a clearer look. Notice how there are more markings than there should be? Some of these first-time voters were marking a choice and then crossing it out and marking something else. We can't count those. You shake your head in frustration. I'm thinking in this case, the poll workers gave bad advice. But anyways, the point is we're trying to apply a consistent, uniform standard across all 67 counties.

Now, from what I hear, this is an effort to change the outcome of an election. I assure you it's not. Nothing is going to change the outcome now. The Supreme Court's decision is final. No one is trying to unseat President Bush. But we want to figure out what the real vote was. I just think we need to move on already. You move on to the next ballot. Clearly, you're not changing any minds today. And even if the nation has moved on, you know you

can't rest until you get to the bottom of this race and figure out what would have happened if the election had really been decided by the people of Florida, rather than nine justices on the Supreme Court. Even after George W. Bush was inaugurated in 2001, questions lingered about the results in Florida. Several media organizations joined forces in conducting their own recounts, hoping to discover what would have happened if the Supreme Court had not intervened. They concluded that if the limited recount Gore sought was permitted, Bush still would have won. But they also determined that if there had been a full statewide recount of all Florida ballots, Gore would have won. Gore's decision not to pursue a full statewide recount would have come back to haunt him. Additional investigations cast out on the

integrity of the entire recount process. The New York Times reported that under pressure from Republican operatives, the state accepted hundreds of oversee absentee ballots that failed to comply with state laws but were likely to lean toward Bush. Reporters also discovered that majority black precincts had more than three times as many ballots tossed out as white precincts. Black precincts were more likely to have older, glitching voting machines and poorly trained poll workers. They were also more likely to vote Democratic. Over time, the turmoil of the 2000 election and the Bush v. Gore decision would contribute to declining public trust in the legitimacy of election results in general. It would also shape public perceptions about the Supreme Court as a partisan actor. Over the next two decades, the Supreme

Court would draw criticism for its increasingly activist approach in striking down state and local laws on issues ranging from gun control to affirmative action, and in 2010, radically changing campaign finance law with a decision known as Citizens United. The decision of nine justices in Bush v. Gore sent a man to the White House, but it also left a more lasting legacy of judicial activism, and with it, growing uncertainty over the Supreme Court's status as a branch of government, independent and impartial. From Wondery, this is Episode 6 of Supreme Court Landmarks for American History Tellers.

On the next episode, in 1970, a 22-year-old Texas woman goes to court to fight for her right to end her pregnancy. As the case makes its way to Washington, the Supreme Court grapples with the question over the origin of life itself, religion, and individual rights, reaching a ruling that would divide the nation for decades. If you like American History Tellers, you can binge all episodes early and ad-free right now by joining Wondery Plus in the Wondery app or on Apple Podcasts. Prime members can listen ad-free on Amazon Music. And before you go, tell us about yourself by filling out a short survey at wondery.com slash survey. This episode is written by Ellie Stanton, edited by Doreen Marina. Our executive producers are Jenny Lauer Beckman and Marshall Louis. Created by Hernán López for Wondery. How did Birkenstocks go from a German cobbler's passion project 250 years ago to the barbie movie today who created that bottle of red sriracha with a green top that's permanently living in your fridge did you know that the air

jordans were initially banned by the nba we'll explore all that and more in the best idea yet a brand new podcast from wondery and t-boy this is nick this is jack and we've covered over a thousand episodes of pop business news stories on our daily podcast. We've identified the most viral products of all time and their wild origin stories that you had no idea about. From the Levi's 501 jeans to Legos. Come for the products you're obsessed with. Stay for the business insights that are going to blow up your group chat. Jack, Nintendo, Super Mario Brothers, best-selling video game of all time. How'd they do it? Nintendo never fires anyone. Ever. Follow The Best Idea Yet on the Wondery app or wherever you get your podcasts.

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