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tv   Bush v. Gore 20 Years Later  CSPAN  December 22, 2020 11:15am-12:47pm EST

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liberty. watch tonight beginning at 8:00 p.m. eastern and enjoy american history tv every weekend on c-span3. in the 2000 presidential election, texas governor george w. bush defeated vice president al gore in one of the most highly contested races in u.s. history. the outcome was not decided until december 12th, five years after voters went to the polls when the u.s. supreme court stopped the florida recount. this ultimately awarded the states electoral votes and presidency to governor bush. next, american history tv looks back 20 years to the 2000 election and the landmark bush v. gore decision with journalist e.j. dionne and bill kristol, co-out-e author of "bush v. gore". >> i say to president-elect bush that what remains a partisan
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rancor must now be put aside and god bless his spew stewardship of this country. neither he nor i anticipated this long and difficult road. certainly neither of us wanted it to happen. yet it came and now it has ended. resolved as it must be resolved through the honored institutions of our democracy. over the library of one of our great law schools is inscribed the motto not under man but under god and law. that's the ruling principle of american freedom, the source of our democratic liberties. i've tried to make it my guide throughout this contest as it has guided america's deliberations of all the complexed issues of the past five weeks. now the u.s. supreme court has spoken. let there be no doubt, while i strongly disagree with the court's decision, i accept it. i accept thefy naturalty of this outcome, which will be ratified next monday in the electoral
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college. tonight for the strength of our unity and strength of our democracy, i offer my concession. this is america. just as we fight hard when the stakes are high, we close ranks and come together when the contest is done. and while there will be time enough to debate our continuing differences, now is the time to recognize that that which unites us is greater than that which divides us. while we yet hold and do not yield our opposing beliefs, there is a higher duty than the one we owe to political party. this is america. and we put country before party. we will stand together behind our new president. >> our country has been through a long and trying period, with the outcome of the presidential election not finalized for longer than any of us could have imagined. vice president gore and i put our hearts and hopes into our
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campaigns. we both gave it our all. we shared similar emotions, so i understand how difficult this moment must be for vice president gore and his family. i was not elected to serve one party. but to serve one nation. the president of the united states is the president of every single american, of every race, of every background. whether you voted for me or not, i will do my best to serve your interests and i will work to earn your respect. i will be guided by president jefferson's sense of purpose to stand for principle, to be reasonable in manner, and above all, to do great good for the cause of freedom and harmony. the presidency is more than an honor. it is more than an office. it is a charge to keep. and i will give it my all.
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>> and now on c-span's washington journal and c-span3's american history tv, we're glad to be joined by journalist e.j. diest dionne and bill kristo, co-authors. william kristol, 20 years since the bush v. gore decision was handed down, the concession speech by al gore, the victory speech by george bush, today do you think the correct person won the election 2000? >> i think so. obviously, it was incredibly close, hinging on one state with, what, 537-vote difference when the counting was stopped. and i think most studies afterwards showed bush, if they kept on counting -- i guess it was the under votes they counted, bush still would have won. it was such a narrow margin and have it hinge on one state is extraordinary. but vice president gore was very gracious and responsible, more importantly than gracious, i
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would say, in conceding. and we went on and, you know, got beyond that pretty quickly in a funny way. bush did compromise with ted kennedy on education legislation a few months into his term and then, of course, there was 9/11. such a different world. listening to bush and gore, such a different world from our politics today. >> e.j., same question. did the correct person win election 2000? >> i think the answer is no. and i think the definitive study which counted every -- recount vote in the state showed al gore winning the state by about 100 votes in the end. more than that, and it wasn't clear how you could rectify this, there were all kinds of other problems i'm sure we'll get into, the butterfly ballot that were cast for pat buchanan that were intended for al gore because the structure of the ballot was bad. to move one step further, what is 100% clear in retrospect is that the u.s. supreme court in a
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very fundamental way, the conservative majority in that court discredited itself with a decision that said, we are going to take the decision about who is president out of the hands of the florida voters and stop the recount abruptly. just as ruth bader ginsburg had a magnificent dissent and so did justice david souter who said there is no justification for denying the state, meaning florida, the opportunity to count all disputed ballots now. i think souter was right then. he is right now. and i think bush v. gore encouraged donald trump to pursue this strategy. this is something bill and i agree on, actually, 20 years later, that what trump has done is both insane and anti-democratic. i think that bush v. gore encouraged trump to pursue this strategy. so, i will go to my grave thinking bush v. gore was a
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catastrophic mistake for juris prudence and for democracy. >> for this segment of "the washington journal" and american history tv c-span3, this is how we split up the phone lines. we want to hear from you, our viewers, republicans, 202-748-8000, democrats 202748-8001, independents, 202-748-8002 and a special line for florida voters from the 2000 election, 202-748-8003. if you're a florida voter, we definitely want to hear your story. you can go ahead and start calling in. it all began on election day 2000. what do you remember from election night? when did this go in your mind from being a close vote in a key state to becoming the florida moment that captured the nation's attention for five weeks? >> i guess i was on tv all
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night. one of the problems of being on set is you learn things a little later. you depend on people talking in your ear piece. it was internet but pre-iphones and twitter and everything else so not as easy to get instant information. i remember florida being called and then kind of uncalled and gore canceling his planned concession speech. i think he had already left to begin to deliver it, and canceling that. it became obviously that, a, everything hinged on florida, and, b, the margin was going to be in the hundreds, let alone the thousands or tens of thousands. it's hard to overstate how extraordinary that was. look at this year's elections that were close in the key states. biden won by 7 million votes. obviously, if he had lost arizona, georgia and wisconsin, trump would have gotten to 269 and i suppose would have won in the house. that would have been something.
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those states biden won by 11,000 votes each in arizona and florida and wisconsin and those were close. clear and not disputed in any serious way. this was not 10,000, this was not 1,000. this was 537. e.j. thinks it would have been a hundred votes the other way. it's also true we improved our election system for all the complexity and chaos of them since then so that the whole butterfly ballot stuff -- we didn't have that much of that this year, it doesn't seem. that was, i think, unintended. it was just the way the ballot was structured for some reason in one or two particular counties and people got confused and it looked like they voted for gore and if several voted for buchanan to make a difference. you can't do anything about it once the votes are cast. you don't know who those people are and you don't know if they're voting for who they want to vote for. anyway, yeah, it is -- but i remember, yeah, then we went home, left the set, i don't know, 3:30, 4:00 a.m., i can't
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remember, for what was in our lifetimes, e.j.'s and i, people older than us, the first time an election hadn't been called. i mean, 70 -- what was the closest? i think 1960 but i think that was pretty much resolved by 2:00 a.m. i don't think it's ever been before 2,000 in modern times when you didn't know who was going to win the next day. >> e.j., same question. what do you remember about that night and why was this something that drew you to join william kristol in this book "bush v. gore: the court cases and the commentary"? >> the reason the book is bill and me is because we disagreed so passionately. i wanted to memorialize that argument because i thought it would be very important going forward. i asked bill, and at the time, you know, we've been friends for a long time and disagreed on a lot of things, less so now. and i said, bill, i'll pick all the right-minded cases and
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you'll pick the commentary and you'll pick the wrong-headed stuff and we won't label it that way and we'll go off. so, we did this project and actually debated bush v. gore for a while. i want to say for me, i think there were two beginnings of the florida moment. one was, i was working at npr that night, i was on and off the air. that moment when the latetic russert, the great host of "meet the press" wrote on a little blackboard he had the words, florida, florida, florida. it was clear -- the one thing that was clear very early in the night is that florida was likely the deciding state in the election, although turned out the vote was rather close in some other states. they could have flipped it to gore, notably new hampshire. tim was right, it was florida, florida, florida. and i remember elation on the gore side when florida was called for gore. and then the call was pulled back and bill described the rest
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of the evening adequately. to that, i think -- i think the florida moment began right then. for me personally, it began the next morning and it really underscored the -- you know, how -- this election result penetrated to all kinds of folks in the country. i remember our daughter the next morning, when it was clear we were fighting about florida, but that al gore had actually won the popular vote. my then 6-year-old daughter said, dad, gore got the most votes. why isn't he president? and that's a question, of course, about the electoral college we've been debating about for a long time but debating with particular veracity and urgency since bush v. gore. >> i want to run through the timeline of those five weeks, the florida moment. that's what we're focusing on for the last half of this program today on this the 20th anniversary of the supreme court handing down the bush v. gore decision. election day, of course, november 7th of 200037 it was november 27th the florida election canvassing commission
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certified the results in florida with bush leading by 537 votes. on november 27th the gore campaign that same day contests that certification. december 8th the florida supreme court backed the gore campaign's appeal. december 11th, oral arguments scheduled and held at the u.s. supreme court. and then it was december 12th, as we said, they issued that ruling, reversing the florida supreme court. the next day, december 13th, al gore ends his campaign. december 18th the electoral college meets, votes, bush, 271, gore, 266. and then it was early in 2001, it was january 6th of 2001 that al gore provided over the certification in congress of that electoral college results. we're talking about it. i want to hear your views on it, the your views on the legacy and what you remember. we're going to start with a florida caller. this is linda this morning. lin linda, you're on with e.j.
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dionne and william kristol. >> caller: good morning. thank you for taking my call. >> good morning. >> caller: i remember watching every minute of it on the news at night and during the day sometimes, too, but the most thing i remember is the attorney, david boise, he was so sure the supreme court would never take the case and that stuck in my mind for years, he was so sure. and when they did actually take the case, i was so sad. he was like, well, i know what's going to happen now. that's what i remember. >> william kristol? >> yeah, that's interesting. i don't -- you know, i haven't gone back and reviewed it all. you're a florida voter so maybe you remember some of these zigs and zags of the florida supreme court. i remember the powerful dissent by the chief justice of the
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florida supreme court who i think was a democratic appointee but i don't think boise thought the u.s. supreme court should stay out of it. that would have been possible and then the count would have gone on and florida wouldn't have certified on the safe harbor day and so forth. one thing on e. jmpblts's last comment, i remember gore winning the popular vote. we were all struck by that. it was understood. we had the electoral college. there was talk about maybe we should rethink the electoral college but it's hard to change that without a constitutional amendment. and, you know, sort of a -- it hadn't happened, if i'm not mistaken, in more than a century, right? again, in the political world that e.j. and i grew up in, if you win the popular vote you tend to win the electoral college. it is kind of astonishing we've
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had the two elections, 2000 and 2016 where the popular vote lost. came pretty close in the electoral college in those three states and biden won by 7 million votes, 4.5%. we do seem to have a situation where the republicans have a built-in advantage for at least a while in the electoral college. and i mean, that's also -- i'm not a pure majoritarian, and we have a strong tradition of federalism in the states, but that's another thing in which -- another area in which bush v. gore turned out to be not just a one-off but kind of a precursor of things to come. >> e.j. dionne, on the case itself, remind viewers what the supreme court actually decided in bush v. gore. there were actually two decisions that came here. >> right. well, there was -- there were basically a decision was the way, was there an equal protection problem in the way
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the votes were being recounted because in one polling place, a different standard might be used, for example, on counting. we learned all kinds of crazy terms back then like dimpled chad when someone was punching a punch card and it didn't go all the way through but it was clear someone was trying to punch a hole next to one name and how these disputes were resolved. there was a 7-2 vote saying there should be some kind of standard. the key vote, the one that mattered, was 5-4 where five conservative republican justices said, well, this is unfair. there's no way to resolve it. stop the count. which was an utterly arbitrary decision to stop -- freeze the count right where it was. and was a way in which five justices made george bush president, period. and that was a real -- i mean, that will forever be a problem. four dissenters basically said,
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wait a minute, even if there is an equal protection issue here, and by the way, none of the naive conservatives were sympathetic to equal protection arguments until they were useful at a moment that would make george w. bush president, but they said, give florida a chance to remedy this so we can decide the election by counting the votes, not by having the supreme court decide the case. and if i can just quote justice john paul stevens, he said, 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. and i think that ever since then, confidence in particularly conservative judges on the court, obviously more among liberals than others, but in general our confidence has gone down because that sure looked like a form of judicial
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activism. >> that caller from florida mentioned david boies who argued the case in the supreme court for al gore and for the bush campaign it was ted olsen that led the argument in the supreme court. the supreme court does not allow cameras but they allow audio and this case was the first case they released audio after the case was argued. it was on c-span and other news channels requesting those tapes. let's give viewers a taste of what those arguments were like in the supreme court. this is david boies first followed by ted olsen. >> florida law since 1917, darby against state. the florida -- the florida supreme court has held that where a voter's intent can be discerned, even if they don't do what they're told, that's supposed to be counted. and the thing i want to say about the backstrom case, they used optical ballots.
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voters were told, fill it in with a number 2 pencil. several thousand didn't. they used g else but not a number 2 pencil and so the machine wouldn't read it. it was voter error. the supreme court in 1998, well before this election, said, you've got to count those votes. >> our point is with respect to the punch card ballots is that there are different standards for evaluating those ballots from county to county and there have -- it is a documented history in this case that there have been different standards between november 7th and the present with respect to how those punch cards ballots are evaluated. palm springs is the best example. they started with a clear rule which had been articulated and sprained to the voters, by the way, as of 1990. then they got into the process of evaluating these ballots and changed the standard from moment to moment during the first day and, again, they evolve from the standard that the chad had to be
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punched through to the so-called dimple ballot, indentations on the ballot. there was a reason why that was done. because they weren't producing enough additional votes so that there's pressure on to change the standards. >> david boies and theodore olsen from their arguments in bush v. gore. i should note if you want to watch those arguments or listen to them in their entirety, you can do so this morning. it's on the home page of c-span's american history tv, you can go ahead and listen to it and several other of the key news events from bush v. gore on the 20th anniversary of the supreme court handing down that decision. we're taking your calls as we're joined by journalist e.j. die onand william kristol. this is beverly. >> caller: good morning. i have several points. considering the hanging chad,
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dan rather had a report after the election that the printing company that had printed the ballots had used a paper that the workers, the employees would not sign off on because it was a new paper that they knew would shrink in florida's humidity. so, the employees did not sign off on it. so, it didn't line up exactly correctly. dan rather also then said that many of the chad trays that catch the chad were not emptied so that it was impossible to punch through. so, there were -- and bush in texas had a standard of dimples, were allowing voters' intent to be known whereas in florida that
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wasn't helping his case. and so he switched wanting them not to count. and so many voters lost their votes deliberately. now, considering katherine harris' purge of 90,000 voters, most of whom who were legitimate, that varying -- and most of whom were democratic, that very technique is used to this day and has been challenged in georgia because in georgia 200,000, almost 200,000 legal voters have been purged. the kinds of mistakes that are made intentionally to scrub democrats off the voter rolls have got to come to an end. >> that's beverly in texas. william kristol, do you want to respond to that one? >> the voter registration is a complicated issue and a certain
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amount of voter suppression in some states. you have to know a lot of details about the pros and cons of some of these changes that were made before the election. we have a pretty strong tradition that when the state board of elections, whatever it's called, different things in different states, certifies the results, that's pretty well taken as definitive, unless there's really demonstrable fraud or purposeful just little miscounting of ballots or some massive error. it wasn't that certainly in florida. just the way when michigan certified a week or two ago. you know, other states, georgia, we all covered, the media covered it in 2020. you could go back and say, maybe the rules should have been axed, maybe they should have been stricter on mail-in voting. maybe they should have not required or not waived the requirement for signatures. whatever. once you got the rules in place and the votes are cost, there should be -- i mean, again, unless there's a flat out fraud, you should have deference to the board. this is why many people
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throughout the florida supreme court was behaving as an imperial judiciary ledgitimatin recounts that were originally launched in districts that would help gore. i think that was the mistake of the gore team. in any case, the u.s. supreme court didn't just stop the counting at some moment. they restored the actual certified results by the florida election board just the way we've seen the results of the georgia board after the recount and certified and michigan and so forth. so, yeah, but look, i think there's a genuine -- well, i think we did improve things after 2000 to some degree. i don't quarrel in georgia the republicans had a very aggressive attempt to prune voters who may or may not have been there and been alive and been legitimate off the ballots. i myself have come to the view that that was more widespread among republicans in some states at least than i realized, i
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guess. and that's a bad thing. to be fair -- to the credit of stacey abrams and many other people in georgia, they fought hard to get all those people registered and tell people to make sure they were registered and they were registered. and there was a massive turnout. >> e. jmpkts, you have susan out of california on the republican line. susan, go ahead. >> caller: yes, i'm kind of upset because i was told what i couldn't talk about when i talked with you. comparatively speaking, these two elections are different. i do remember the 2000 election and all i did was pray that george bush would win. also this election is completely different. what we're talking about is how corrupt this last election was. we're not just talking about a few votes, but 75 million people
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believe that this election was corrupt. i have seen you, chris williams, on christiane amanpour and company and i disagree with everything you say. >> susan in california. e.j. dionne, do you want to start? >> yeah. well, obviously thanks to both callers. and we disagree. i would note that the caller who just was on maybe claim the election was corrupt, but i didn't hear any particular fact connected to that claim, which i think, unfortunately, is pretty much what the trump claim has been in this election, so with great respect for the caller, i just fundamentally disagree. and i think the notion of calling this election corrupt is dangerous. but to stay on our topic, if i could go back to what the earlier caller did, to points she made i think are very important. one, i hadn't remembered all those details about the paper and the chads and the trays.
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bush v. gore really underscored for us how important basic decisions of election administration are. and i don't think we have still paid enough attention to those. there were some improvements made after 2000, but it's one of the easy things to cut in local budgets, is election administration, because people are going to holler a lot more about the schools or the parks or the libraries or a lot of other things. and so i'm glad she just pointed out those basics. secondly, disenfranchisement is an enormous problem. voter purges is an enormous problem. and we see them to this day. and they are a habit in republican states. that's just a factual matter. we've unfortunately reached a point. and here i think today bill would agree with me that republicans seem to be at the point where they'd rather cut turnout than try to make a case to a broader electorate in a
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large turnout elections. i think it's ufrts that the trump folks are focusing on alleged corruption that doesn't exist and not looking at the fact that, hey, with better rules that made it easier for people to vote this year, the president got 11 million more votes than he did four years ago so that both sides in politics took advantage of rules that made it easier for people to vote. and i think that's a good thing for democracy. >> we've got about an hour left this morning with e.j. dionne and william kristol, co-editors of the book "bush v. gore" taking your calls throughout this morning. phone lines for democrats, republicans and independents and that special line for florida voters. 202-748-8003 is that number. florida voters from the 2000 election, i should say, want to hear your stories, your memories from that day here on the "washington journal" on c-span and american history tv's
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c-span3. william kristol, want to come back to the comment you made about the moment the voting -- the vote counting was stopped. before the supreme court argument, when they decided to take up the case, the injunction came down to halt the vote counting, the recounts that were happening in the state of florida as the case was being argued. it was long-time supreme court reporter david savidge in a recent interview for our q&a program that he argued gore lost the election then and there, lost the recount effort then and there. i want to play a clip from q&a and come back and get your thoughts. >> everybody understood there was a time that had to be done by december 12th. this was saturday afternoon. tuesday the time was going to run out when the supreme court stepped in, stopped the vote, you only -- you would only issue an injunction like that if you were the justice you've got your mind made up and five of them had their mind made up.
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they were not going to allow that recount to continue. >> just for you, tounder score, that 5-4 injunction vote presaged for you what was going to ultimately happen with the bush v. gore outcome in the oral argument? >> yes. i remember telling my editors that afternoon, this is a temporary measure to -- temporary order to keep things on hold until tuesday. i said, yes, that's one way to put it. but the truth is, this is the end of the -- this is the main decision. you would not stop the vote counting for the full weekend until early next week, and -- unless you had decided that the vote count was going to end. i think from sunday and monday on, it was only a question of the court's conservatives had to think up a reason for deciding what they had already decided.
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>> david savage in our q&a program. william kristol, do you agree? do you think the justices had their minds made up before they heard the arguments? >> i think that's an unfair way to put it. they might have had their minds made up, in that they considered the legal case. it wasn't actually news that it was coming to the supreme court and decided they were going to uphold the original november 27th decision of the florida board, and that, yes, if you are inclined to do that already, you're more likely to give an injunction. but it's not like -- it's a mistake to say there's something illegitimate about it. that's the way courts often work. you don't give an injunction if you think there's not a strong case. you do give a temporary order or injunction if there's the likelihood, in this case, the plaintiff prevailing. i agree very much it was an indicator of what was to come. i think it doesn't prove anything about that -- one side's reasoning is any better than the other's.
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i want to come back to the previous caller, though, just on the fraud question. i mean, a, there's no evidence of it. you know, an awful lot of people have to be involved in this conspiracy to be flipping voting machines and having massive miscounting of mail-in ballots and so forth. do you think you'd find some instances of it. that has been litigated in states courts before judges who were -- and federal courts before republican and democratic judges. some of these state courts have quite conservative, actually. wisconsin and michigan. and they have simply not found any systematic fraud on any scale. even systematic errors, actually, on any scale, one. two, it's -- again, if you saw -- if an election is being stolen, you'd see evidence. you'd see, this state looks like it has unusual results that are out of kilter with what's happening down-ballot or happening in other similar states or what happened four years ago. this was actually, if you just
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begin with the national result and -- which is consistent with all the polling, trump did better than he did in the polling, but still biden was going to outperform clinton by some -- ended up being two-plus percentage points and then you see the key states, that was usually in that ballpark. obviously some states more, some states less, a couple states trump did better. and you ended up with perfectly reasonable results, if i can put it that way. if you ended up with georgia, biden winning by eight points, you know, and losing florida by three, you'd say, that seems pretty unlikely. maybe something needs to be looked at. there's something unlikely about the results. there's no evidence of anything going wrong. two of these states in arizona and georgia are republican -- states with republican governors and republican -- pretty much republican down the line, actually. and they carefully recounted everything and ended up where they are. wisconsin and michigan, as i say, have majority republican and quite conservative state
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supreme courts that upheld the decisions of the electoral commissions in those states. so, there's just no evidence of this fraud. i mean, what's amazing, therefore, about trump -- with gore/bush you can you can argue about the ballots and the butterfly ballots and which counties' recounts, what they're going to do in each county and so forth. there is nothing like that this year. there is no evidence of fraud. biden won by 71 million votes, he won in three states. it's amazing that trump has been able to convince so many people with really no evidence of all of conspiracy theories. that's worse for the country, and i'm sorry people are convinced about it. i blame more the convincers than the convinced, that they know better, and i blame a lot the republicans who have signed on and tried to give this some legitimacy. i hope the supreme court
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decision yesterday really convinces people. of course, a majority republican with three appointees on it will say that is not correct but they're really not correct. >> i did want to get your thoughts on whether the arguments back in 2000 mattered or whether you thought the supreme court had their mind made up, and what should viewers know about the william rehnquist court that heard these arguments. >> let me just say, bill and i argued passionately in 2000 about bush v. gore. i agree very much with what he said about the election we just had. it's profoundly troubling that people are trying to set aside the results of a free election. but i agree with david savage entirely, but actually, probably what matters more is not just what i think but what justice's
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stevens sutter and bryan thought at the time, they made a very strong argument that there was no reason to stop a recount because it would cause irreparable harm to bush, which was the claim. if anything, and they were right about this, there was a danger, and i quote them, that a stay may cause irreparable harm to the respondents, and more importantly, the republicans at large, because the stay would be tantamount on the decision of the merits in favor of the applicants. they were quoting there from a 1977 decision. and there was something very nervy about the rehnquist court, and you look at the five, you asked about the nature of the court, all five were appointed by republican presidents. all five were seen as
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conservative, although justice sandra day o'conner who later said she regretted her decision in this case or at least expressed some regret about her decision in this case was the more moderate of them. but it was a very nervy thing they did, because they stayed the recount which lost three critical days, and then they said later, well, we have to stop this altogether because there is no time to repair the problem. but, of course, by using the stay, they created the difficulty in repairing the problem, so david is absolutely right. once they shut down the recount on the saturday, the cake was baked, and it was very clear that the same people who wanted to keep the recount going dissented and the same people who ruled for bush pushed that stay -- put that stay into
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place. so i think history validates that. >> plenty of callers for you two gentlemen this morning, the 20th anniversary of handing down the bush/gore decision. an independent is on the phone. go ahead. >> caller: good morning, guys. sandra day oh k'conner was goino resign, and they convince herd -- convinced her to stay there, so that decision was made way early before the vote. and to stop the republicans later, we had a crazy thing happen where the senate changed control. jim jeffords and arlen specter changed from their party. they said the republicans have gone nuts. they changed and gave control of
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the senate back to the democrats to stop the craziness that the republicans were doing. th they knew they couldn't remove clinton. anyway, that's my comment. >> do you want to weigh in? >> a lot happened in 2001. jeffords quit parties and the senate switched majority control to the democrats, and then the main thing that happened was 9/11, and e.j. and i have talked about this before. the book is really e.j.'s brainchild and produced very well by brookings where e.j. was, and i think is a senior fellow. i was happy to be a collaborator and to have selected the pieces on the right side of the argument and make sure they were read by all the liberals, by brookings books.
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it seems like near era. anyway, the book stands up in the sense that a lot of it is beyond the details -- a lot of it is on the details, of course, with the cases and the voting, but a lot more is democratic theo theory, elections, the rules of the courts, and a lot of cases on both sides, i would say, stand up as a pretty sophisticated debate. i remember doing a paper with a panel, some professor types, discussing it, and people were going to assign the book in their classes, i think smome of them did, and this would be a huge topic and story for the next months going forward, and i think the american association, a week later was 9/11, so it was a bush v. gore -- it was such a big deal but was certainly overtaken pretty quickly. actually, the democrats and
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republicans worked together reasonably well on a lot of issues, so the bitterness may have lingered beneath the surface, certainly, but didn't burst out quite as much as people expected. i do think vice president gore, we should say a word about that, really deserves credit for his concession and the statesmanship he showed on december 13. >> another florida voter from 2000 down to miami, this is mark. good morning. >> caller: good morning. >> go ahead, mark. >> caller: so a couple things struck me from this conversation. one is that back in bush v. gore, the democrats were looking to gain votes by looking at dimple chalds and hanging chads and now they're looking to pull apart these ballots and take the signatures away so they can't be verified anymore or just stop
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verifying them altogether. so they're trying to jump on both sides of the ball here, and where they wanted to just count everything on both kinds, back then they didn't have any mail-in ballots like they did in this massive amount of them. in florida you had to request a ballot, not just get it mailed out to you. so it looks like -- i know some criticism has come here against the republicans for purchasing the voter rolls and things like that, but this just smacks of fraud and it really undermines our democracy in a huge way, and it's undermined, basically, the ability to vote in the united states for me myself, personally. i'm very dissatisfied with how many states are doing this, especially pennsylvania. when you look at florida, thank goodness our governor came in, rick scott, and removed the canvassing board heads for broward and dade county and brought back -- and now we've
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had little to no problems with this election, thank goodness. i remember being the laughingstock of the united states at that time, very embarrassed at how our elections went. >> a couple things. i don't know what consistency -- th thanks to the caller, by the way -- and basically florida was not controversial because trump carried it by a sizeable margin, i think three or four hundred thousand votes. a reasonably sized margin covers up all problems lying underneath. i'm not saying they aren't there, we just won't ever bother with them if there are. i don't understand the inconsistency he's talking about. this is a strange argument that -- i know he came in, i guess, on the democratic line, but that sounds like the type of argument trump is making about these signatures. in terms of letting these
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ballots be available, it strikes me that people would say there is something terribly wrong with mail-in balloting when president trump himself has voted by mail in election after election. the notion that you would make it easier to get an absentee ballot or to get a mail ballot in the time of a pandemic when you don't want crowded polling places, that does not strike me as anything political, that strikes me as a very intelligent public health measure to try to protect voters. that is what happened in this election. and while it is true that democrats seemed, in most states, to be more likely to take advantage of mail voting because president trump decided to attack mail voting, when you look at these vote counts, an awful lot of voters for president trump also chose to vote by mail, because they didn't want to go to a crowded polling place. so i respectfully, again, just
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deeply disagree with that caller. i don't think there is inconsistency. by the way, if there is consistency, the democrats in 2000 wanted to recount all of florida's ballots. the bottom line to me about what went wrong in florida is if that had been a state treasurer's race, if it had been a race for attorney general and it was a 500-vote margin, you would simply recount the votes in the whole state. that's what we would do. in georgia, the normal democratic thing -- the normal recount response would be booirbiden is ahead, biden would object to the recount. biden didn't object to the recount. they did the whole recount in georgia and biden held up. again, bill and i agree on this election, we didn't agree on that one, the georgia vote, for
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example, was relatively close, 10,000 votes, not like florida. they recounted the votes, the lead held up. i really don't get what the caller was trying to get at t b -- get at, but i respect him for his strong views. >> in this election in florida, donald trump won the state by 371,000 votes. that's in comparison to the year 2000 when george w. bush was certified the winner by 537 votes. jim is next out of silver spring, maryland, democrat. good morning. >> caller: john, good morning, and e.j. and william, it's a real privilege to be able to speak with you guys. i've met each of you several times on it the streets of d.c. very quick background briefly. i grew up in a democratic household. i'm a conservative republican
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main line in philadelphia. my uncle was a wonderful journalist, had a great career. he had just been diagnosed with esophogeal cancer, and it was just such a difficult time. i was at the time on staff at the national trust for historic preservation, and i was commuting in to work that day. i'll never forget this, this was such an amazing experience for me. i thought i would just stop by the steps of the supreme court and voice my opinion. and it was remarkable. there were several ragtag groups of citizens, you know, milling about. and there was a very conservative group and a gentleman with a bullhorn was yelling "bush got more." and i have a very loud voice, and i just started calling out, count the votes in florida! count the votes in florida!
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and all these loose democratic ragtag groups started rallying around me. suddenly there was a stand-off and a debate that took place on the spot impromptu on the plaza of the supreme court. i had a wonderful time talking to a gentleman who came there, driving through the night for that decision. my argument was state law in florida dictated a vote that less than half a percent would have to automatically be recounted. i was sticking to that. that was my point. count the votes in florida. so i ended up leaving the scene after being interviewed by the press and so on, and the next day, i was just amazed. i was above the fold on the w h "washington times" arguing my case. i later found out i was on
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websites and i had relatives calling me saying, what are you doing? get to work. it was an amazing experience and a very sad one, because i really loved al gore. i thought he would have been a great president. he had the background and experience for the job. then we went into such a difficult time, so it's quite a day today, and i'm so happy about joe biden's election. this for me as a philadelphia yphiladelphian or a philadelawarean, as we like to call ourselves. i'm very optimistic, but it's ane credibly difficult time for us right now. thank you for your time. >> jim, thanks for the call. thanks for sharing your
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experience. if you want to go back, rowland evans goes back on c-span if you want to check out his story. >> i didn't know him that well, he's one generation ahead of me, at least, but a very impressive man, long career. i grew up reading evans and novak. i think it was four times a week, five times a week at one point. i think we got onto the "herald tribune" when i was growing up in new york and i got into politics with that baseball column they wrote. it's great to hear from the caller. >> mr. dion, i thought you might want to weigh in as well. >> same. the "herald tribune" is one that passed away back in the 1960s. they kept writing, it appeared in the "washington post" for
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many years. i think he hit on two points that are central. first of all, thanks for the personal recollection. second, count every vote was the slogan. i still have up in my office a poster from the nclu at the time saying, this is america, count every vote. that was the one and only principle. i appreciated his under lining the idea that in any other race, we would have just recounted all the ballots, why not in florida in 2000? my last column on this, i wrote about this all the way through the controversy about florida, and the last column ran under the headline "so much for states' rights." because it was astounding to me at the time, still is, that a conservative majority on the supreme court would step in and say, we are going to override the ability of the florida supreme court to make a ruling
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on how a state election should be carried out, how an election in a state should be carried out under state law. and they preempted the decision of a florida court. obviously their argument is somehow they had the right to intervene because it's a federal election. fine, except that's not an argument conservatives typically made, so they contradicted their core position. i think that is underscored by what the caller said about what florida law said. so thanks for that great call. >> so much for states' rights in the "washington post," december 14, 2000 reprinted in the book bush v. gore. the court case and the commentary. co-editors of that book joining us for the next 40 minutes here on c-span and american history tv c-span3 as we look back 20 years on the bush v. gore case. this is basil waiting in
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olmstead, ohio, a republican. basil, good morning. >> caller: good morning. the boom has been in the '30s in this country because we've gotten into the legal system that runs the country now. the voters have said there are all kinds of criminality, so attorneys have stepped in to sue and bring charges, and the supreme court refuses to recognize thall attorneys, of course. the american population is no longer run by farmers and factory workers as it was originally intended to be in this country. we are so overlawed not with morality but with laws that people throw at us wearing masks, mandating what we must do as the american public. who in the hell do you people think you're kidding? we are americans. we are no longer free as americans. we are overrun bylaws that are hindering in our love afor each other.
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>> that's basil in ohio. do you want to respond? >> whether it's the state level, federal level, local level uniformly said we're not going to resolve this election. we're not going to pretend we can sit here and do some detailed investigation of every vote. we're going to trust, unless there's evidence oethe other wa the local election officials. those people who mostly volunteer to run elections -- i don't know if the caller has voted, i assume he has, in those elections. they're not mostly lawyers, they're not interested in persecuting their fellow voters, they couldn't change the outcome in a particular state. mail-in voting, that's a legitimate debate. in a pandemic i think it's fair to have that option.
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some states want same-day voting, make it harder to vote absentee and don't have a standard mail-in vote. other states have gone all the way to mail-in voting. it is the states' rights. the system remains very state-focused and that's decided by the legislatures of each state and by the governor to some degree and by people the governor appoints, but those are all democratically acted people, that's not the conspiracy of lawyers. incidentally, florida, which trump won much more easily than i expected, has a much higher percentage of mail-in votes than all the states biden won. it's always been a pretty heavily laden state. it's true that trump's voters tended to vote in person and not by mail, mostly because trump was so hostile to mail-in voting even though he did it himself, but that just meant they chose to vote on december 3rd instead of voting earlier. it didn't change anything. but there is no correlation.
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utah is entirely a mail-in state. more people voted this time than ever before. there is less evidence of fraud, i would say, than ever before or systematic error than ever before. the notion that voting on the same day in actual election booths is so wonderful and fraud free, which is sort of another kind of weird trump talking point, really, tell the people in chicago there is no fraud when there is only same-day voting and you have to show up to vote. the famous cases of fraud actually have to do with same-day voting, not mail-in voting. a final point on this just because it's amazing how much traction it's gotten. i voted in virginia by mail. i didn't trust the post office. i dropped it off at the local government center. but you request the ballot, or in some states -- well, you're often mailed a chance to request a ballot, but then you have to request a ballot. you get it. you sign the envelope. you don't sign the ballot.
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trump literally doesn't know how the system works. you don't sign the ballot because we have secret elections here, secret voting in the u.s. you sign the envelope. it comes in in virginia, and this was true in most states that did mail-in voting. you see that it's arrived, and then it's taken out and counted separately, because you don't want people knowing how bill kristol voted or jim jones or whoever. there is a lot of big turn drs odrs -- turnout, a lot of people voted by mail. you don't want too much early voting, people don't get the benefit of anything they might have learned in the last week or two or three, and that's a fair point, but the system was set up in different states by the elected officials of those states. in a few cases the courts made a couple of tweaks and made it a little easier sometimes to vote
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by mail, but very limited. and people voted. arizona is a huge vote by mail state, republican state, and they voted. we had big turnout. so the notion that the lawyers are running america and we can't do free and fair elections, this was a free and fair election with huge turnout. >> about half an hour later with e.j.dion and william kristol this morning. you've got ron on the line for democrats. ron, good morning. >> caller: good morning. i voted by mail, and i had to request the mail. i had to call the courthouse and they sent me the proper information. also i'd like to know what kathy harris' role was in the election. i haven't heard her name mentioned. the other thing, too, trump's
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favorable rating is not that high here. he grew big crowds, but it didn't seem to -- it just seemed to be the same people over and over again. i don't think that had anything to do with it. i just think he was not a very popular president, and the voting for biden proved it. thank you. >> that's ron in pennsylvania. mr. dion, on katherine harris, and bring it back to bush v. gore. >> i just want to say thanks for that call. i, too, voted by mail, requested the ballot. i put it in a drop box at the high school my kids went to named after walt whitman, the great poet of american democracy, and it was a good system and a good way to make it easier for people to vote. i just want to underscore what the caller and bill said about that. yes, our elections are run by citizens on the ground. thousands and thousands of people all over the country. my sister is watching today.
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she's head of the board of canvassers in her town in rhode island. these were folks who worked really hard to make it easier to vote in a very difficult time. katherine harris was the secretary of state in florida. it was -- she was appointed by jeb bush who happened to be the brother of the presidential candidate, and obviously there's been controversy to this day about how decisions were made. suffice it to say that all close sdi decisions that came to katherine harris were made in favor of bush, not in favor of gore. there were a lot of arguments about some of those decisions, and it should also be said that, nonetheless, under state law there is -- in florida, there is a lot of leeway given to local officials to count votes, and where recounts happened, there were -- you know, they were very
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open recounts with republican judges and democratic -- not court judges, just people sitting in the polling place watching the ballots recounted. republicans could challenge a decision made or democrats could challenge a decision made. a recount is a very small democratic thing to do, and it's a transparent process, and, you know, as i said, to this day i wish we could have just recounted all those votes. the one area where i will agree with bill on in 2000 is i think gore should have started with a demand for a statewide recount, but there is a reason he didn't do it. all kinds of people were beating up on al gore for just not accepting the result on election night when the margin was this close, and so the gore people were trying to say, we're not asking for much, we're only asking for recounts in these three counties. i think in the long run, they
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would have been better off just to make the basic argument, let's recount the votes in the state, and however that works out, we'll have a result and it will be over. >> you talk about where al gore started. i want to show viewers where it ended for al gore. this is the moment on the house floor january 6 of 2001, presiding as president of the senate over the congressional certification of the electoral college vote. here's about two minutes from that day on the floor. >> the vote for president of the united states as delivered by the president of the senate is as follows. the vote for president of the united states is 548 of which the majority is 270. george w. bush of the state of texas has received for president of the united states 271 votes. al gore of the state of tennessee has received 266 votes.
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the state of the vote for vice president of the united states as delivered to the president of the senate is as follows. the whole number of the electors appointed to vote for vice president of the united states is 538, of which a majority of 270. dick cheney of the state of wyoming has received for vice president of the united states 271 votes. joe lieberman of the state of connecticut has received 266 votes. this announcement of the state of the vote by the president of the senate shall be deemed a sufficient declaration of the person's elected president and vice president of the united states, each for the term beginning on the 20th day of january 2001 and shall be entered, together with a list of the votes, on the journals of the senate and the house of representatives. may god bless our new president and our new vice president, and
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may god bless the united states of america. [ applause ] >> al gore on january 6, 2001. bill kristol, your thoughts on that moment. >> it's such an american moment, a democratic moment. other democracies have their own way of doing the transitions, but we have an unusually long transition, two and a half months, between election day and inauguration day, so there's more of a process, and this, of course, is the culmination of the process. i was the vice president's chief of staff in the first bush white house, and i remember dan quayle presiding in 1993 and announcing the election of the ticket that defeated us and quale. al gore presided over his own defeat, so to speak. dick cheney did the same thing in 2009 -- he hadn't run, of course, but announcing the victory of barack obama, and joe
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biden in january of 2017 announced the victory of donald trump and mike pence. it's very important -- not very important, it's important as a symbolic matter and, you know, just a kind of reaffirmation of how proud we are that we have a peaceful and orderly transfer of power in this country, from one legitimate administration to the next. i very much hope -- i expect vice president pence to do the same thing vice president gore did. there will maybe be some troublemaking attempts among republican house members, maybe senators. they have the right to make certain objections, they might delay things a couple of hours. i think very important that vice president pence, whatever donald trump thinks, sit there and behave in the same appropriate and dignified way as vice president gore did 20 years ago. >> mr. dionne? >> yeah, and bill has already und underscored how gracious gore was in all this, and i think that's very, very important to
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remember because he fought like heck to get the votes recounted in florida. he had a right to do that. it was a very divisive time, as we can see from some of the conversation. today it still divides americans. but once it was resolved, it was extraordinary how much grace he brought to this both when he finally conceded after the supreme court decision that he disagreed with, and then how he presided over the counting of these ballots. if you believe in democracy -- and now we have our election in 2020, which was not close. it was close in a number of states, but in all of those states, the closeness went in favor of joe biden. four years ago we had even closer votes in some of the same states that went to donald trump. hillary clinton did not object. hillary clinton did not say there is fraud, she did not
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pretend that things happened that didn't happen the way president trump is, and so we should take a lesson from the gore that you just showed and also the other examples bill cited earlier. if you believe in democracy, you have to accept defeat as well as victory. >> back to the phone lines on this, the 20th anniversary of the supreme court handing down the bush v. gore decision. this is evelyn out of shrewsbury, pennsylvania, republican. good morning. >> caller: good morning. i would like you to explain the electoral college and the election was rigged. there should be the whole united states, one system, no mail-in. >> william kristol, do you want to talk about the electoral college? >> it was a compromise at the constitutional convention. it was originally intended to be
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a real college, if you like, a group of electors who would select a president. it was less democratic with a small d time, less sense that the president is awfully important. you can't have just a referendum among the people who vote know who these candidates are. it's a different day and age, obviously, in terms of communication. that ended pretty quickly. we had a party system. the electoral college became actually somewhat similar to what it's remained for 200 years, which is basically the way the votes get collected state by state and then ratified. the notion that electors would exercise discretion or make a selection ended pretty quickly and other things were changed in terms of the vice president and the president, and there was, in 1877, after the 1866 election, the most contentious, i suppose, until 2000 by a federal law which did regular lalt tte the f
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the electors counting the votes state by state, then congress acted on january 6. what we've been talking about was mostly driven by that federal legislation in 1877. there always was federal legislation, constitutional provisions that govern the presidential election, in particular. but yeah, we don't have a national system. other countries do. we could. we could move to it. but if we went to a national system, it would be a national popular vote system, i should say. it's not going to be a national state-by-state system. if people don't like the electoral college and they think it's rigged, they could end up with a national system which would have helped biden more, not less. i don't know -- most republicans, in fact, have rallied to the electoral college in kind of a kneejerk way. it's here and i'm not sure there's much point to debating. there are ways to tweak it,
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maybe, to make it more responsive to the national popular vote. i don't think it's going to fundamentally change, so campaigns organized, obviously, around fighting the key states and so forth. if we were starting it all over again, i think we probably would end up with quite a different system. but it's worked pretty well most of the time. i'm worried, though, if we end up with election after election where the electoral college differs from the national popular vote, i think we ever somethi -- we have something of a problem with legitimacy. this is where trump does to much damage. he throws around charges that it's fraudulent and rigged. there are more votes than ever before. a very consistent pattern of votes. it's not as if you look up in philadelphia, which is a hugely democratic area, suddenly voting republican or rural areas of pennsylvania are suddenly voting democratic after they've been trending republican for 20 or 30 years, it was a consistent vote. there was a swing away from trump by a few percentage points compared to 2016.
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that was consistent with the polling, consistent with his approval rating. we had a successful democratic election in a pandemic. trump outperformed the polls but was rejected by the voters. republicans did well down ballot, incidentally, so some percentage of the voters were willing to say, not a second term for trump, but i kind of prefer a member of congress or senator or state legislator. all totally consistent, reasonable. we can argue about what results might have looked a little bett better, but well run by citizens across the country and then responsibly i would say handled in almost every case, really, by the governors, by the election of commissioners, by the secretaries of state, and by the state courts. the state court just kind of ratified that, really. it didn't change anything yesterday. it was a success. and it's terrible that the
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president of the united states is saying that we have a rigged and undemocratic election system. >> just about 15 minutes left this morning here on the wa "washington journal" here on c-span3. this is west palm beach. good morning. >> caller: good morning. i wanted to comment on the 2000 election. one of the things that i remember is that when we received our ballot in the mail, it was really the sample ballot. and i commented to my wife that the ballot looks strange because it was difficult to be able to tell exactly who you were voting for. and when that happened, one of the things that we resulted with was the -- well, it was called the butterfly ballot, and
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actually there were some people who thought they were voting for gore and ended up voting for buchanan. that was one of the things that was really strange, and it's my story that i always remember about the 2000 election. but the other thing i wanted to comment on is if the guest saw the article that was in "the atlantic" the last couple of days in which the whole question was raised about whether or not there are some people who are contesting the current election and saying that there was a lot of fraud. but, really, they don't believe that the people who voted for biden are real americans. that, in fact, the people who supported trump are the real americans, and that when they say there's fraud, and when they say that there's no legitimacy to all of those votes out of the
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large cities in the north or in atlanta that, in fact, they're saying these people are not real americans. we are the real americans because we support trump. these people are immigrants, they're people of color and, therefore, they have no legitimacy. >> got your point, walter. walter brings up several issues there. e.j.dionne, where do you want to start? >> first, bless you for the call. thank you so much, sir. two points. boy, are you right about that butterfly ballot that you wish in retrospect that some democratic official early on or a campaigner had looked at that ballot, gone back to the board of elections and said, my god, look how confusing this ballot is. again, there were -- buchanan's vote was way higher in that jurisdiction in a place that was very, very, very democratic so there was no way he should have
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gotten that vote. most of those votes were intended for gore. there was no easy way to fix that after the election. and by the way, there was a law passed earlier that no one had any idea how it would affect the 2000 election that made it easier for third-party candidates to get on the ballot, which helped create these complicated ballots in the election of 2000. it's the ultimate in unintended consequences. to his point, he's so right to cite the idea that often what is called fraud on the other side of this election is objection to who is casting ballots. i read that texas lawsuit that the supreme court threw out last night. the outrageous, comical texas lawsuit trying to set aside this election. but it was comical, but it was also kind of scary in the way it went. and i made a count of how often democratic cities with large
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black populations were mentioned, and if i remember right, wayne county, which is where detroit is, was mentioned 11 times. milwaukee was mentioned 7 times, philadelphia was mentioned 6 times, and they noted that the vote in wayne county where detroit is was -- biden's margin was double his statewide margin as if it was a crime, almost -- they didn't say it, but as if it was something terrible about the fact that wayne county where detroit is helped decide the state of michigan. so, yes, there is something deeply disconcerting about the way in which -- not all of them, but sure, a lot of the president's supporters in his propaganda started talking about fraud, because i think "the call" in the lantatlanta piece a lot of good points. >> this is charles.
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good morning. >> caller: good morning. people who voted for trump are the real americans, so i don't think calling propaganda and calling it words like that are not very helpful. i'm a reasonable person. all i want to know is, is the person who cast the ballot, are they eligible to vote? are they not dead? are they not one of the -- what gail and m.i.t. estimate 2200 aliens in the country or daca, , are they not voting. and losethere are so many democc machines in metropolitan areas like detroit, chicago, philadelphia. it was done so loosely where you're throwing ballots out the door and you don't even verify whether the signatures match up with the person who voted. i think reasonable people like me, first of all, and other things, from the '16 vote, you had social media blocking any
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conservative voice or comments on twitter and facebook, then you had this hunter biden story come out where the media that's normally so curious about russian hoax and all these other things totally ignored the story. all reasonable people want is a fair, flat -- you know, they just want it to be fair and they want to know that the people who are voting are eligible to vote, and we just want to verify who is voting. >> got your point. that's charles in south carolina. william kristol, to that comment from the viewer, and how much were these concerns about potentially illegal people voting, how much were they evident in 2000, or was this more about undervotes and overvotes and whether people accurately filled out their ballot back in 2000? >> yeah, 2000 was fundamentally different because it was a very detailed, you might say, precise
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dispute about how to count certain ballots and how to recount certain ballots and even whether to recount certain ballots. everyone understood the swing would be hundreds, maybe even a thousand or two. trump claims that, as the caller said, somehow voters -- >> 22 million, i think he said. >> yeah, i'm sorry, i misspoke. again, the states in which this happened are states who have or have had republican governors. governor walker tightened voting registration it all types of ways. georgia purged all kind of people under the rolls in a democratic state. now biden safely w now trump won georgia in 2016
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and now suddenly there's massive fraud? i was in charlotte, north carolina when there was genuine election fraud, so much so that they did redo the election, which you can't do it for a presidential election, but they did it for congress. it was done fair, which was the same result, so it didn't actually -- he won a fair election after winning a fraudulent election. but it was done fairly. the democrats didn't scream and yell after he won, even though the state -- you know, most of the local officials were probably republican. again, i think the notion that trump is really -- this has been happening for a while, but the degree to which trump has convinced people that there are these systemic frauds, there was a republican governor in michigan in 2018, there was a republican governor in wisconsin until 2018. they kind of care about winning
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and they're republican congressmen and so forth. they decided each state had its own system with a mix of mail-in votes and different hours which you can vote, different -- different ways of verifying in terms of voter id, but no one has shown any evidence beyond tiny, tiny instances. literally fingers on one hand kind of instances of people voting who shouldn't have voted. people haven't been able to show if there's massive illegal voting you should have a big disparity between the voting rolls and the citizenship rolls. there's no such thing. i think it's unfortunate that people have bought this. they do tend to think it's the other side that's doing the dirty stuff and people who aren't like them who are cheating, and that's unfortunate. you do get to a position where you're sort of there somehow, they're both -- they're not treated as fellow americans, i
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take it in good faith that we're all americans, but when you then start to say that only certain parts of the country perhaps had this problem, and again, without evidence in this case at all. and with republican governors in arizona and georgia -- in georgia republican election officials going over and recounting it, recounting it twice by hand and saying, yeah, that was the vote. so what's the claim? what's the claim? >> mr. dionne, before we get too close to the end of our time with you gentlemen today, i wanted to ask about when it came to bush v. gore, its legacy and the legacy of the justices who are involved in that case. i point to april of 2008, a "60 minutes" interview, justice antonin scalia saying in that interview saying, get over it. it's nonsense to say the decision was politically motivated, and then justice sandra day o'conner. it was in 2013 in an interview
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with the chicago tribune. looking back she said she wasn't sure the high court should have taken up the case. they took the case and it was decided at a time when it was a big election issue. maybe the court should have said, we're not going to take it, goodbye. your view on how it was decided. >> i wish justice coe co'connerd have made that decision back in 2000. given how close it was, i think the best count showed gore winning by 100 votes. maybe by the time the litigation was over, it would have been for bush by a similar margin and we really would have known who won, and that would have been better. i actually had a great opportunity in an event on a completely different subject at the university of chicago to ask justice scalia, whom i disagreed
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with passionately, about bush v. gore. i am one of those who has not gotten over it, obviously, never will really get over it. and what really struck me in my conversation with him, and since he's not here and can't refute me, i don't want to quote him in any way. i just was as unpersuaded at the end, and i expected to be -- he was a brilliant man, obviously. i expected maybe there was something i missed here. but as far as i could tell, there was nothing i missed there and that the decision was as partisan as it looked at the time. they used an equal protection doctrine that many of them usually rejected. they intervened in a state. these were justices who usually had a very high bar of protection for states' rights as w was pointed out earlier, they stopped the recount and said there is no time to resolve
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this. that seemed like cooking the books a bit. i know bill and i disagree on that. so i think the net effect of this has been after years and years of talking about liberal judicial activism, i think we have moved to an era -- and there are a number of conservatives who will acknowledge this -- that we move to an era of conservative judicial activism, and bush v. gore really fundamentally altered my view in some ways of what conservative judges actually did, and i was always aware that we were tilting toward judicial conservative activism, but i think we're seeing an awful lot of it now. a notable and happy exception i have to under line was the supreme court yesterday saying at least they weren't going to let this extraordinarily partisan case brought by texas, in effect, on behalf of president trump, i'm very grateful that at least in this
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case they said no, this makes no sense. >> mr. kristol, the last two columns of the book you two gentlemen worked on together, it is a headline of what we'll remember about bush v. gore. you've got harvey mansfield, a column from at the time. what do you think today about that question? what will we remember in 2050 about bush v. gore? >> you know, i think it's -- what's the joke about the chinese revolution, you know, come back in a thousand years and we'll tell you what the meaning of it was or something like that. i mean, i sort of feel like we're in the middle of a huge debate in the country about elections, about the courts, about the nature of the republican party, the nature of the democratic party, and we won't know if bush v. gore is
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some sort of harbinger about something, was it a better world where we were having disputes about one election not calling the whole system into question, certainly not with the president doing so and certainly not calling his successor illegitimate? i guess i don't know, you know. i tend to think of it as being an earlier era and a different kind of fight from the current fights, but maybe not. >> e.j. dionne, 2050. what will we remember? >> i sort of take bill's point here where i think bush v. gore may be the beginning of a long argument about how we should conduct presidential elections. i think the electoral college will continue to misfire relative to the popular vote, simply because of the way we have relocated as americans. the electoral college overrepresents thinly populated
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states and the proportion of the country moving to metro areas, at least until the pandemic, means that it will be more and more out of whack with the popular vote. somehow i think we have to move toward the popular vote. it will also be part of a continuing debate about how we organize our elections. i think it's interesting that we're having this bush v. gore discussion after the pandemic election where we learn that there are ways of organizing elections to increase participation. there was certain reforms after bush v. gore that had a mixed effect, but there was a push to encourage greater participation. and so i think we will look back at bush v. gore as part of a broad trajectory of change in how we conduct elections, and i just hope that the change is in a direction that involves broader participation and
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clearer rules so that we avoid, as often as possible, the kinds of fights we had around bush v. gore. >> bush v. gore, the court cases and the commentary, william kristol and e.j. dionne, co-editors of that book. i want to thank you both. e.j. dionne, column nils ist at "washington post," and william kristol, thank you for taking us back 20 years in history. weeknights this month we're featuring american history tv programs as a preview of what's available every weekend on c-span3. tonight the 400th anniversary of the mayflower which traveled from plymouth, england to america in 1620. to mark the 400th anniversary, the heritage foundation hosted a discussion about the mayflower
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compact, the document signed by the mayflower passengers upon their arrival in north america. scholars discuss its role as a political agreement and as an inspiration for later documents and arguments for religious liberty. watch tonight beginning at 8:00 p.m. eastern and enjoy american history tv every weekend on c-span3. you're watching american history tv. every weekend on c-span3, explore our nation's past. american history tv on c-span3 created by america's cable television companies and today were brought to you by these television companies who provide american history tv to viewers as a public service. and now university of virginia professor michael holt discusses his book "by one vote:


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