As a makeshift army of thousands descended on Washington, D.C. on January 6, 2021 and marched towards Capitol Hill wearing and waving the colors of a defeated candidate for president, many of them were driven by the seemingly quixotic idea that one person could intervene and change the result that they were so furious about.
Except it wasn’t so quixotic.
After all, it has happened a few times in American history. Thanks to various provisions in our Constitution, there have been several Presidential elections where the result was so close and in dispute that they necessitated contingent elections, lawsuits or bipartisan commissions to pick the winner. In those instances, one person, be it a deciding vote on a commission or court or an influential figure capable of swinging an entire House of Congress, has loomed large as a kingmaker — or, in this case, a President maker.
Every vote matters. But some matter more than others…
1800 Presidential Election: The House Where It Happened
The 1800 Presidential Election in which Vice President Thomas Jefferson defeated President John Adams was historical for several reasons.
For the first time, an incumbent President was defeated for reelection. There would 9 other instances of this happening in our history, including the next entry below.
For the first time, there was a rematch featuring candidates that had contested a previous Presidential election. There would be five other such rematches in the years since — and we almost a sixth one in 2024.
For the first time, the sitting Vice President took on the sitting President. That hadn’t happened since.
For the first time, a political party lost power and peacefully transferred power over to the other.
And, for the first time, no one won a majority in the Electoral College, necessitating a contingent election in the U.S. House of Representatives.
Under the original electoral system set up in our Constitution, Presidential electors cast two ballots, with the winner becoming President and the runner-up becoming Vice President.
That system worked fine as long as there was a consensus choice like George Washington on the ballot. Electors could all vote for Washington and then split their second votes among several VP candidates, ensuring that Washington would win.
With the advent of political parties, however, the inadequacies of this system were soon laid bare. In 1796, Alexander Hamilton, Washington’s influential Treasury Secretary (and arguably, the Assistant President) and Adams’ rival for leadership of the Federalist Party, tried to manipulate things so that Adams, the party’s nominee for President, would end up getting fewer votes than the party’s VP nominee. Instead, his plan ended up backfiring, as Democratic-Republican Presidential nominee Jefferson ended up getting the second-most votes and the Vice Presidency.
Four years later, Hamilton was up to his usual tricks. Still hoping to take down Adams and elect a Federalist more to his liking, Hamilton authored a scathing 54-page pamphlet criticizing Adams that was meant to be circulated amongst the Federalist Party to convince them to abandon the incumbent President. Instead, the pamphlet became public, dealing Adams a serious blow while exposing Hamilton’s duplicity and earning him the enmity of a large portion of his own party.
So, in 1800, the Democratic-Republicans were smelling victory. And they had a plan to avoid a situation where a Federalist might sneak into the Vice Presidency. They would have all of their electors cast their first vote for Jefferson. Then, all but one would cast their second ballot for New Yorker Aaron Burr, the party’s nominee for VP.
Only it didn’t happen. Thanks to poor planning, lack of communication and assumptions that ended up not coming true, Democratic-Republican electors cast each of their votes for Jefferson and Burr, resulting in a tie atop the Electoral College.
Now, the party had clearly intended for Jefferson to be President, and it’s been argued that Burr could have simply conceded the race or opted not to contest the contingent election. But the Constitution wasn’t clear about what his options were. What if, by conceding or not contesting the contingent election, Burr forfeited his intended spot as VP, leaving Adams as the #2, something no Democratic-Republican wanted? If he wanted to be VP, he had to be elected, and the only way to do that under the circumstances was through the House.
Burr, for his part, remained silent but historians agree that he either waged a stealth campaign to steal the Presidency form Jefferson or sat back and let things play out, hoping they would go in his favor. In 2011, Thomas Baker discovered a letter from New York lawyer William Van Ness, a close Burr associate (he would be Burr’s second in the Hamilton duel), trying to recruit other Democratic-Republican Representatives to back Burr. In his letter, Van Ness said that the sentiments expressed were “not mine only” — leading Baker to argue that he could have been referring to Burr, himself.
Of course, all of this would have been academic had the House, with each state getting one vote, simply voted for Jefferson and while giving Burr enough votes to come in second.
Unfortunately for the Democratic-Republicans, the lame duck House that would be deciding the election was controlled by Federalists — and they were in no mood to help their rivals sort out their mess. In fact, sensing an opportunity, they conspired to vote for Burr, who they thought would be more malleable than his running mate. Plus, they hated Jefferson for starting the Democratic-Republican Party in the first place, and wanted to stick it to him.
However, Federalists did not control enough state delegations to see their plan to come to fruition. So, from February 11–17, 1801, the House held 35 ballots and failed to elect either Jefferson or Burr. If Federalists held out for another three weeks, Secretary of State John Marshall could have become Acting President (although he had already been confirmed as Chief Justice of the Supreme Court, which means he would have to either decline the Presidency or resign the Chief Justiceship — another fascinating “what if?”).
Watching from the sidelines, Hamilton had seen enough. Hamilton disliked Jefferson and disagreed with him on almost every major issue. However, he also had a grudging respect for Jefferson and saw him as a man of principle — he just found those principles in total conflict with his own.
On the other hand, Hamilton despised Burr and saw him as nothing more than a charlatan and empty suit who would do or say anything for power. Taking the “lesser of two evils” approach, Hamilton decided to throw his support to Jefferson, figuring a man with the wrong principles was better than one with none at all. Despite his influence having admittedly waned since the Adams pamphlet incident, Hamilton engaged in a fierce letter writing campaign to make sure Burr did not become President.
“There is no circumstance which has occurred in the course of our political affairs that has given me so much pain as the idea that Mr. Burr might be elevated to the presidency by the means of the Federalists,” Hamilton wrote to Oliver Wolcott in December 1800.
“Burr loves nothing but himself; thinks of nothing but his own aggrandizement; and will be content with nothing short of permanent power in his own hands” Hamilton wrote to Rep. Harrison Gray Otis (F-MA).
“Mr. Burr [is] the most unfit man in the U.S. for the office of president,” Hamilton wrote to Rep. James Bayard — a Federalist and Delaware’s lone representative. “Disgrace abroad, ruin at home are the probable fruits of his elevation.”
According to Ron Chernow’s Hamilton, the former Treasury Secretary spent two months lobbying Bayard to abandon Burr. Bayard, for his part, also disliked Burr, but was under tremendous pressure from his fellow Federalists to hold the line. “Quite possibly influenced by Hamilton’s barrage of letters,” Bayard engaged in back-channel talks with some of Jefferson’s allies and tried to exact promises that Jefferson would “preserve Hamilton’s financial system, maintain the navy, and retain Federalist bureaucrats below cabinet levels.”
Once word got back to Bayard that he need not worry about those things, according to Chernow, the Representative made his move. On the 36th ballot, Bayard abstained, taking Delaware out of Burr’s column. Bayard’s allies in Vermont and Maryland also abstained, flipping those states to Jefferson and giving him a majority. Angry Federalists decried what they saw as a deal between Jefferson and Bayard — not the first time an allegation of a “corrupt bargain” would roil a Presidential election.
“Jefferson probably owed his victory to Hamilton as much as as to any other politician,” Chernow wrote. “Hamilton’s pamphlet had first dealt a blow to Adams, though not a mortal one, and he had then intervened to squelch Burr’s chances for the presidency, paving the way for a Federalist deal with Jefferson.”
The long process took its toll on whatever relationship Burr and Jefferson had. Jefferson never trusted Burr again and kept him on the sidelines in his administration. He even dumped Burr as his running mate in 1804 and later had him tried for treason, accusing his former VP of trying to establish his own country in parts of what is now the southwestern U.S. and Florida. He was ultimately acquitted thanks to Marshall, the presiding judge who construed the definition of treason narrowly, all but guaranteeing the result.
As for Hamilton, he and Burr escalated their feud. Hamilton helped cost Burr the New York gubernatorial race in 1804, writing a letter so scathing and critical that Burr felt dishonored and demanded satisfaction. The two then engaged in their infamous duel at Weehawken and, we all know how that turned out.
1824 Presidential Election: The “Corrupt Bargain”
Going into the 1824 election, all was supposed to be well.
The Era of Good Feelings was in full swing. The Democratic-Republicans dominated the political scene and the Federalists were about to become a footnote to history and a trivia question/AP U.S. History topic for future generations. In fact, when President James Monroe ran for reelection in 1820, no major candidate bothered to run against him.
Then it all went to pieces.
There may have only been one major party in D.C. at the time, but that didn’t mean it was unified. The Democratic-Republicans were split into a number of factions, each with different ideologies, beliefs and geographic interests.
Northeasterners and former Federalists who believed in a strong central government flocked to John Quincy Adams, son of John Adams and Monroe’s Secretary of State.
Southerners and states-rights advocates lined up behind William H. Crawford, Monroe’s Treasury Secretary.
Nationalists, protectionists and infrastructure enthusiasts backed Henry Clay, the powerful Speaker of the House.
And looming over them all was General Andrew Jackson, the hero of The Battle of New Orleans. While his politics and ideology were harder to pin down, he was the most popular and appealing candidate in the field — easily surpassing his rivals.
All four decided to run for President in 1824. There was another contender who originally threw his hat into the ring to make it five, Secretary of War John C. Calhoun. The South Carolinian would eventually be closely identified with his state and the South as he advocated for states rights and expansion of slavery. However, at this point in his career, he was still a nationalist in the Clay mould. As such, he lacked support in the South compared to Crawford, and didn’t have a real power base that wasn’t already occupied by Clay. So, he made a political decision and pursued the Vice Presidency instead. In a weird development, he ended up being both Adams’ and Jackson’s running mate.
There had been changes since the 1800 contingent election, most notably the 12th Amendment in which electors would now cast separate ballots for President and Vice-President. Nevertheless, the presence of four strong nominees in the general election, each with their own independent power bases, ensured that no person would win the requisite majority in the Electoral College, making a contingent election inevitable.
Sure enough, that happened. Jackson won a plurality of electoral votes but not enough to win the Presidency. As such, that meant Jackson and the next two finishers, Adams and Crawford, would advance to the contingent election, which would be conducted in the House of Representatives. Essentially, it became a two-horse race between Jackson and Adams since Crawford was in ill health.
Interestingly, that left Clay on the outside, since he had finished fourth. However, as Speaker of the House, he wielded tremendous influence on his fellow Representatives, and he was not about to sit on the sidelines.
For Clay, there was a clear “lesser of two evils” choice before him, and like Hamilton, he decided to use his influence to get that person elected. In fact, according to H.W. Brands’ Heirs of the Founders: The Epic Rivalry of Henry Clay, John Calhoun and Daniel Webster, the Second Generation of American Giants, as the general election returns were still coming in, Clay was already working on ways to stop Jackson, a man he had long thought was unfit to be President. “I cannot believe that killing 2,500 Englishmen at New Orleans qualifies for the various, difficult, and complicated duties of the Chief Magistracy,” Clay once said of Jackson.
Additionally, Clay may have felt politically threatened by Jackson. The Speaker’s power base was in the West, as was Jackson’s. Clay had lost quite a bit of support there to the former general, and both men could reasonably claim that the other had cost them (adding Clay’s 37 electoral votes to Jackson’s 99 would have been enough to win outright).
Clay also feared what Jackson might be capable of. Long worried about his despotic tendencies and the potential damage he could do to America’s institutions, Clay was ready to do almost anything to stop him from ascending to the Presidency. In fact, Jackson’s enemies (many of whom were Clay’s allies) would later refer to him as “King Andrew I” because of the heavy-handed way he vetoed the Bank of the United States’ charter and transferred federal deposits to banks run by his cronies.
“The principal difference between them is that in the election of Mr. Adams we shall not by the example inflict any wound upon the character of our institutions; but I should much fear hereafter, if not during the present generation, that the elevation of the general would give to the military spirit a stimulus and a confidence that might lead to the most pernicious results,” Clay told Francis Blair.
There wasn’t a lot of love lost between Clay and Adams, either, but they had quite a bit in common. Both favored high tariffs and funding national infrastructure and other internal improvements. Clay had resolved to support Adams as early as December 1824, and the two started talking through intermediaries. At a public function in January 1825, Clay and Adams sat next to each other and Clay whispered to Adams that he wanted to chat. The two then sealed whatever deal they may or may not have made in private.
Adams and Clay would both later say they made no requests or promises, but it didn’t really matter. Rumors immediately popped up that the two had made a deal, including an article in Philadelphia’s Columbian Observer stating that Adams had agreed to make Clay Secretary of State (this was a big deal back then — Secretary of State was widely seen as the heir to the Presidency — the three previous Presidents had run the State Department and Adams was poised to make it four). Clay angrily denied it and almost challenged the source of the story, an obscure Pennsylvania Congressman named George Kremer, to a duel. Had it happened, he would have been the highest ranking federal official to engage in a duel since Burr. Ultimately, Clay opened an investigation into the matter in the House, but used his influence to bury it.
Despite all of that, Jackson still assumed, perhaps naively, that he would win in the House for no other reason than he had won the most electoral votes.
Instead, he got a rude awakening when the House finally met to vote on February 9, 1825. Kentucky, which had voted for Clay in the general election, had passed a nonbinding resolution to have its Congressional delegation choose Jackson. Clay ignored it and delivered his home state, Missouri and Ohio for Adams. The Massachusetts native not only kept all seven of his states in his column but also took Maryland, Illinois and, most gallingly of all for the Hero of New Orleans, Louisiana from Jackson. Shortly after Adams was declared the winner, he made Clay his Secretary of State — leading to shouts of a “corrupt bargain” from Jacksonians.
In fact, Jackson and his followers continued to nurse grievances over the election being stolen from them — Jackson went to his grave believing Henry Clay had screwed him out of the Presidency — and his 1828 campaign began almost from the moment his loss in 1824 was confirmed.
In the end, it didn’t matter whether Clay and Adams made a deal or not. Jackson and his followers either believed it to be true or didn’t care because they realized the “corrupt bargain” could be used as a rallying cry for their base. Jackson soon split from the Democratic-Republicans and formed the Democratic Party, positioning himself as the front-runner for 1828. That year, he handily defeated Adams and then four years later, got revenge on Clay, beating him in a landslide.
“The Judas of the West has closed the contract and will receive the thirty pieces of silver,” Jackson said about Clay after the 1825 contingent election. “His end will be the same.”
With Jackson, who once reputedly said his biggest regrets were he didn’t shoot Clay and he didn’t hang Calhoun, it’s possible he meant it literally and not figuratively. Nevertheless, Clay’s political reputation did take a hit. He would pursue the Presidency four more times, coming up short each time in a combination of bad timing and changing national circumstances.
1876 Presidential Election: The Swing Vote
The Presidency of Ulysses S. Grant was marked with scandal and corruption.
As a result, Republicans and Democrats both looked for Washington outsiders with reputations for honesty. In that vein, Rutherford B. Hayes and Samuel J. Tilden had a lot in common.
Both men were known as reformers. Hayes, as governor of Ohio, helped secure the passage of the 15th Amendment, which gave African-Americans the right to vote. Hayes also brought about reforms in the state penitentiary, welfare, and educational systems.
Meanwhile, Tilden rose to prominence by destroying the corrupt Tweed Ring that controlled New York City. Later, as governor of New York, Tilden cemented his reputation as an enemy to corrupt political machines by breaking up the Canal Ring, a bipartisan group that got rich off fraudulent canal repair bills.
As the contest got underway, Hayes made an interesting campaign promise. He expressed a desire to allow Southern states “local self-government” despite fears that this action would allow states to effectively nullify the Thirteenth, Fourteenth, and Fifteenth Amendments.
Grant was already starting to withdraw federal troops from the South, but Reconstruction was still, technically, in effect. Nevertheless, Democrats had seized back control of enough states in the South so that they knew they had a legitimate shot at winning the White House in 1876 — something they hadn’t done since before the Civil War. That, plus Grant’s widespread unpopularity, put Tilden on the precipice of finally breaking that losing streak.
On Election Day, Tilden won the popular vote and had amassed 184 electoral votes, one short of the majority, to Hayes’ 166, with Louisiana, South Carolina, and Florida still undecided. There was also one contested electoral vote in Oregon. Considering Tilden had won most of the South and Louisiana had gone Democratic as recently as 1868, it seemed a matter of time before he clinched the White House. Even Hayes privately conceded that the election was lost.
But then everything changed, setting off a bizarre set of circumstances that threw the country into its most serious Constitutional crisis since the Civil War.
Republican official William Chandler of New Hampshire and New York Times managing editor John Reid figured out that if Hayes took all of the disputed states, then he would have 185 electoral votes, giving him the Presidency by a single electoral vote. Thus, the two men telegrammed Zachariah Chandler, asking the National Republican Party chairman to get local Republican government officials in South Carolina, Louisiana, and Florida to hold their states for Hayes.
Because Republicans were still in power in those three states, Chandler hoped that party officials could “canvass” the returns and recount the votes in a way to allow Hayes to triumph, thus giving him the requisite 185 electoral votes. Democrats counter-attacked, declaring victory in state elections, setting up their own governments, and scrutinizing the Republican canvasses. As a result, both parties certified their own set of election results, leaving the winner of the election in doubt.
Unsure of how to proceed — the Constitution addressed what happened if neither candidate got a majority, but was silent in cases where certified electoral results were in doubt — Congress established a special bipartisan commission to investigate the disputed returns, whose findings would be binding unless both houses of Congress voted to reject them.
The Commission consisted of five Senators, five Congressman, and five Supreme Court Justices, seven of whom were Democrats and seven of whom were Republicans. The fifteenth member was supposed to be Associate Justice David Davis, an independent. However, Davis was elected to serve in the Senate by the Democrat-controlled Illinois state legislature, and in his place, Justice Joseph Bradley, a Republican, served on the Commission instead.
Bradley was picked because he was seen as the most independent-minded Justice after Davis. Nevertheless, Republicans were hopeful once they saw that they had the balance of power on the commission. Indeed, Hayes’ son, Webb, told his father that “the bets are five to one that the next president will be Hayes.” Hayes himself was cautiously optimistic, and he began considering cabinet members while formulating a policy for Southern relations.
Sure enough, Bradley sided with the other 7 Republicans, giving them an 8-7 majority. Hayes won all of the disputed returns and was awarded the Electoral College by a single vote. Adopting, almost verbatim, the arguments put forth by the Republicans before the Commission, Bradley held that each state had a “just right to have the entire and exclusive control of its own vote for the Chief Magistrate and head of the republic, without any interference on the part of any other State, acting either separately or in Congress with others.”
Bradley also held that Congress could not look into the State’s appointment of electors. Such an action would “tak[e] it out of the hands of the State, to which it properly belongs. Of course, this did not mean that Congress had to simply sit back and accept efforts to defraud the electoral process. However, Bradley held that it was the business of the State to prevent fraud, not Congress. The canvass board had the power to review the electoral process for fraud, but after that, the discretion of Congress was confined to counting the votes, not inquiring as to their validity.
That wasn’t the end, though. Democrats planned on filibustering the vote to adopt the report. If they managed to delay things until March 4, the Electoral Commission’s mandate would expire and, under then-existing laws, the House could call for new elections.
To try and avert this, Republicans and Southern Democrats met at the Wormley Hotel in Washington D.C. on the evening of February 26, 1877. Republicans wanted the Southern Democrats to help break the promised filibuster, thereby ensuring the election of Hayes based upon the findings of the Commission. Southern Democrats, however, wanted certain concessions, including aid for internal improvements, a seat in the cabinet, a subsidy for the Texas and Pacific Railway which would connect the South with the West, and a voice in the distribution of federal patronage in the South.
In addition to receiving help in breaking the filibuster, the Republicans also extracted promises from the Southerners to endorse James Garfield, an Ohio Republican and Hayes ally, for Speaker of the House, and to guarantee political equality and civil rights for blacks upon the imminent withdrawal of the remaining federal troops in the South. It was this last promise that eventually gave the conference its legendary status as the point in time in which Reconstruction finally ended.
According to several historians, however, such a viewpoint is misguided and overstates the importance of this conference. Nevertheless, the myth of the Wormley Bargain lives on. As Roy Morris, Jr. wrote in Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, “a popular legend has developed of a shadowy cabal of white politicians cynically selling out the futures of four million black southerners in return for Rutherford B. Hayes’s ascension to the White House.”
Regardless of the impact of the Wormley Bargain, Republicans did keep their end of the bargain and withdrew the remaining troops from the South and appointed Carl Schurz, a Southerner, as Secretary of the Interior. Democrats, however, broke their part of the bargain by refusing to support Garfield for Speaker of the House, and by promptly setting up Jim Crow laws designed to keep blacks in a position of political and social inferiority.
Rutherford B. Hayes was finally declared the winner of the 1876 Presidential Election two days before he was to be sworn in. He may have been President, but his ability to govern had been compromised, as lingering bad feelings over his election caused his opponents to call him “His Fraudulency,” “Rutherfraud,” and “Returning Board Hayes,” foreclosing any possibility of a second term. He was succeeded by Garfield in 1881.
Meanwhile an embittered and physically deteriorating Samuel Tilden, the man who won the popular vote but lost out on the Presidency, declined the opportunity to run again in 1880 and died in 1886.
2000 Presidential Election: 5-4
In 2000, Texas Governor George W. Bush and Vice President Al Gore competed in one of the closest Presidential elections in American history.
The race came down to one state, Florida, where the count was so close that the winner wasn’t known for weeks. As election workers counted and recounted the ballots, examining hanging chads and butterfly ballots in an effort to try and discern a voter’s intent, they were scrutinized by lawyers from both campaigns and millions following the proceedings from afar. The stakes couldn’t be higher. After all, these workers were, essentially, picking the next President.
Until the U.S. Supreme Court intervened.
Gore had been behind in Florida, but cut into the Bush’s lead after the state-mandated machine recounts. Under state law at the time, Gore could request hand recounts and did so, challenging the results in four Democratic counties.
The Bush campaign sued, arguing its 14th Amendment equal protection rights were being violated because only a small number of counties were being recounted and there were no uniform standards for accepting or rejecting ballots throughout the state.
The Florida Supreme Court turned down a demand from the Bush campaign to halt hand recounts, causing the Texas Governor to appeal to the U.S. Supreme Court.
At first glance, that seemed like a good thing for Gore. The conservative majority on the Rehnquist Court typically deferred to states and tried not to interfere with state court proceedings.
However, it was also a good sign for Bush that the Court was willing to take on the case — and not just because there was a conservative majority (in fact, there were 7 Republicans on the bench, but two of them, John Paul Stevens and David Souter, tended to vote with the two Democratic appointees, Stephen Breyer and Ruth Bader Ginsburg). Courts are not supposed to hear matters relating to political questions, and plenty of legal scholars have argued that Bush v. Gore was such a controversy (although others have argued that it was not). So, the fact that the Supreme Court was willing to hear the case at all probably meant that it was going to rule in Bush’s favor, right?
Indeed, that’s what happened. In a 5-4 decision, the Court’s three arch-conservatives (William Rehnquist, Antonin Scalia and Clarence Thomas) and two right-leaners (Anthony Kennedy and Sandra Day O’Connor) decided to step in and stop the recounts, overturning the Florida high court’s decision. The dissenting Justices were stunned by the departure from the norm, so much so that Ginsburg called them out in her dissent, stating: “Rarely has this Court rejected outright an interpretation of state law by a state high court.”
The majority backed Bush’s Equal Protection Clause argument and held that no recount could be completed in time before a federally mandated deadline for states to select its Presidential electors. “When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront,” the majority per curiam opinion stated.
The existence of an unsigned per curiam opinion, which is usually reserved for noncontroversial cases that don’t involve complicated or controversial constitutional or factual issues, was a strange development. After all, Bush v. Gore was a lot of things, but it was definitely not straightforward or simple. The majority even said so in its per curiam opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” the majority said in its opinion.
That line, in particular, was heavily criticized and held up as an indication the Court was not acting in good faith. By essentially stating that Bush v. Gore should not be seen as binding precedent for future cases, the Court opened up itself to attacks and criticism for acting in an overtly partisan way. “This observation is the very antithesis of the rule of law,” Professor Clyde Spillenger wrote in UCLA Today. “The Court’s authority to decide such momentous questions rests on its ability to demonstrate that its reasoning is not just made for the occasion, but expresses a more universal norm. That is why, despite the fact that the Court could have made its conclusions persuasive, its actions instead constitute one of the sorriest chapters in its history.”
It could also leave the door open for future Courts to rule differently if a majority of Justices determine that getting to a particular political result is more important than judicial consistency. Time will tell if this becomes relevant after the 2024 Presidential election.
So, who was the decisive vote? It’s hard to say. O’Connor and Kennedy were typically viewed as the swing votes on this iteration of the Rehnquist Court, and the media, at the time, focused on O’Connor. In particular, it was widely reported that she got angry when the media initially called Florida for Gore because she wanted to retire under a GOP administration. Newly released memos from Justice Stevens show that she was influential early on in establishing a framework for the eventual opinion, circulating a memo prior to oral arguments that ended up shaping the decision.
Of course, recent scholarship has also shown that it was primarily Kennedy who wrote the opinion. Indeed, the line about “our unsought responsibility” tracks with his grandiose writing style which, to his critics, often came across as self-important and even arrogant.
Additionally, according to Joan Biskupic’s recent biography of O’Connor, she and Kennedy were pretty solidly in favor of Bush from the beginning — just as much, if not more than Rehnquist, Scalia and Thomas. So maybe, in this case, it was actually two people who helped swing the 2000 election. Or maybe even five.
Despite the Supreme Court’s decision, Gore still had some legal options at his disposal. The case was remanded to the Florida Supreme Court, and he could have tried to get them to restart the count in a manner consistent with the majority opinion. But with time running out and the understanding that Bush could simply appeal to the Supreme Court again and have them step in, Gore bowed to the seemingly inevitable and conceded the race. As with Richard Nixon in 1961, Gore presided over the electoral certification of his own loss and handled the situation with grace and humor.
Nevertheless, the scars from the 2000 election continue to haunt this country and have only deepened divisions and partisan resentment in the ensuing quarter century. This all culminated in January 6, 2021, when Trump supporters stormed the Capitol to try and halt the electoral certification of Joe Biden’s 2020 victory.
They were aided and encouraged by politicians and lawyers who tried several of the tactics used in the previously-listed entries. Senator Josh Hawley of Missouri announced he would object to the certification of the returns from several battleground states. Senator Ted Cruz tried to create an 1876-style electoral commission. Rudy Giuliani, Sidney Powell, Lin Wood and others filed lawsuits hoping to get in front of a Supreme Court with an even more dominant conservative majority than the one that ruled for Bush in 2000. Supporters in several states tried to dispute the official election returns by creating alternate slates of electors. Trump even floated a novel theory by claiming his then-Vice President, Mike Pence, could unilaterally reject the returns — something no other Vice President in the history of this country, be it a defeated candidate like Gore, Nixon or John Breckinridge, or an unscrupulous schemer like Burr ever dared to do.
It remains to be seen if we will see a repeat in 2024. In his Bush v. Gore dissent, John Paul Stevens hoped that “time will one day heal the wound to that confidence that will be inflicted by today’s decision.” It looks like that day is still very, very far away.
