Then-Texas Gov. George W. Bush's 1,784 vote lead over Vice President Al Gore in Florida was so narrow — less than 0.5% of the votes cast — that state law required a recount. Determining the contours of the recount sparked a debate over county and state guidelines and the very nature of judicial review.
So began 36 days of court battles, with lawyers from around the country flocking to Florida, as well as two trips to the U.S. Supreme Court.
Are we in for the same fate this year? With a close election and legal questions swirling around mail-in ballots, early voting and long lines, we could be headed that way.
Over 400 lawsuits across 44 states have already been filed, according to the Stanford-MIT Healthy Elections Project.
And President Donald Trump himself has hinted that his third appointment to the high court, Justice Amy Coney Barrett, could play a key role in deciding this election, telling reporters in September, "I think this will end up before the Supreme Court."
Law360 checked in with Ted Olson, a partner at Gibson Dunn & Crutcher LLP who argued before the U.S. Supreme Court for President George W. Bush's campaign in 2000, and three other attorneys who represented both sides in the 2000 litigation, asking which lessons Trump and Vice President Joe Biden's campaigns should take from Bush v. Gore
— and what makes today's election different.'A Hard-Fought Contest'
Olson, one of the key figures in the Bush v. Gore fight, said that although some similarities exist, 2020 is easily distinguished from 20 years ago.
"The uncertainty that will exist after the election is somewhat comparable to 2000," he said. "What is vastly different is that we were focused then on one state and the outcome of one state's electoral college votes … Here, there are many, many battleground states that collectively could determine the outcome of the election."
Listen below to Olson's recollection of some of the most tumultuous days working on the 2000 election litigation and what they mean for the current election's litigation climate.
Photo courtesy of Gibson Dunn
Are We Headed Back to the High Court?
One of Olson's opponents in the 2000 presidential litigation was Kendall Coffey, who worked on Gore's legal team. A founding member of Coffey Burlington, Coffey shared concerns that "things are lining up so that the U.S. Supreme Court could be visited once again."
In the clip below, Coffey recalls the phone ringing with news that the Supreme Court ordered a halt in the recounting of votes — effectively handing the presidency to his opposing counsel's client.
Photo courtesy of Kendall Coffey
Not everyone agrees that the Supreme Court is likely to decide the election. Barry Richard, a former Bush attorney, expressed doubt that the ongoing litigation will reach the high court.
"We have to keep in mind that we've had four presidential elections since 2000, and we haven't had a problem," said Richard, who is currently a shareholder at Greenberg Traurig LLP. "2000 was a rare situation because it was a national election that came down to a relatively small number of votes … That is not likely to recur again in the foreseeable future."
In recollecting the atmosphere surrounding the election, Richard describes a level of after-hours bipartisanship during the recount that is unimaginable today.
Photo courtesy of Greenberg Traurig
Be Ready for Anything
Stephen Zack, a partner at Boies Schiller Flexner LLP and former Gore team attorney, said the most important lesson for the 2020 campaigns to take from 2000 is to be ready for anything.
Zack recalls getting a phone call from his future law firm partner David Boies, who argued for Vice President Al Gore's campaign before the Supreme Court, asking Zack to try the case with him.
Zack had just convinced the canvassing committee to agree to a recount, reversing a prior decision.
Photo by Beth Keiser/AFP via Getty Images
With myriad ways the election could play out, the two campaigns have hired so many lawyers, it surprises even the Bush v. Gore veterans.
"I can't imagine that there's ever been an election where there were so many lawyers involved," said Olson.
--Editing by Amber McKinney and Pamela Wilkinson.
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