However, the newly released documents—part of a trove of former Justice John Paul Stevens' papers—include a four-page memo O'Connor sent to her colleagueson December 10, 2000, even before they heard arguments in Bush v. Gore. Her memo laid the groundwork for the controversial 5-4 ruling that stopped Florida's court-ordered recount in a too-close-to-call contest between Bush and then-Vice President Al Gore and gave the presidency to the Republican Texas governor.
In her memo, O'Connor attacked the unanimous November 21, 2000 Florida Supreme Court decision that the results of manual ballot recounts in Miami-Dade, Broward, and Palm Beach counties must be included in the final state tally, while giving the three counties five days to certify their results.
"Before there was 2020 there was 2000."
During that period, Bush's legal team appealed to the U.S. Supreme Court while self-described "dirty trickster" Matt Schlapp and future seven-count felon Roger Stone led an effort to fly hundreds of paid operatives to Florida to harass and intimidate Miami-Dade officials—the so-called "Brooks Brothers Riot"—in a bid to thwart their court-ordered work.
"I am concerned that the Florida Supreme Court transgressed the lines of authority drawn by Article II of the federal Constitution in substantially changing the state Legislature's statutory scheme for the appointment of presidential electors," O'Connor wrote.
"The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes," she noted, a reference to instances when voting machines could not read ballots.
"Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated," O'Connor asserted. "More importantly, the court failed to provide any standard more specific than the 'intent of the voter' standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards."
O'Connor noted that the Florida Legislature "has created a detailed, if not perfectly crafted statutory scheme that provides for the appointment of presidential electors by direct election," and that "the Legislature has designated the secretary of state as the 'chief election officer.'"
Florida's secretary of state at the time, Katherine Harris, was not only a Republican, she also co-chaired Bush's campaign in the state. On November 26, 2000 Harris declared Bush the winner in Florida by 537 votes, even though there were counties still tallying ballots.
Ignoring this obvious conflict of interest, O'Connor said the Florida Supreme Court "disregarded the secretary of state's delegated duty to exercise her discretion to determine whether to accept the state's late returns" and whether a manual recount requested by Gore was warranted.
Gore had asked for recounts in four heavily Democratic counties amid drama over dimpled, pregnant, and hanging chads; butterfly and caterpillar ballots; write-in votes; overcounts; undercounts; and a bewildering barrage of strange new terms. Some political commentators have argued that Gore's failure to request a statewide manual recount may have been a fatal miscalculation.
The day after O'Connor circulated her memo, Justice Anthony Kennedy, another Reagan appointee and frequent swing vote, wrote to right-wing Chief Justice William Rehnquist endorsing her "very sound approach."
Rehnquist—who was appointed by Republican former President Richard Nixon—was a proponent of what is now called the independent state legislature theory (ISLT), the fringe right-wing notion that state lawmakers alone can regulate federal elections. Hard-right Justices Antonin Scalia and Clarence Thomas, two of the five votes for Bush, also embraced the dubious theory.
Prominent purveyors of former President Donald Trump's "Big Lie" that the 2020 presidential election was "stolen" have cited ISLT when pushing state lawmakers to help overturn President Joe Biden's Electoral College victory. Thomas' wife Ginni Thomas—who in 2000 solicited resumes for positions in the presumptive Bush administration before her husband cast his decisive vote in Bush v. Gore—unsuccessfully pressed Arizona state lawmakers to invoke ISLT in service of Trump's ill-fated effort to reverse his 2020 loss.
Notably, Bush's legal team in Bush v. Gore included current right-wing U.S. Supreme Court Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett. Moore v. Harper, a North Carolina voting rights case currently before the court, could decide the legal validity of ISLT.
On December 12, 2000 the justices ruled in a 7-2 per curiam opinion that Florida's court-ordered recount must be stopped on equal protection grounds, and 5-4 that there was no other way to recount all of the contested votes in a timely manner. Rehnquist, Kennedy, O'Connor, Scalia, and Thomas voted in favor of Bush, while Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Stevens dissented.
In his stirring dissent, Stevens presciently noted that "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 judges as an impartial guardian of the rule of law."
Four out of the five justices who sided with Bush were accused of conflicts of interest: Rehnquist and O'Connor were septuagenarians who had stated their desire to retire during a Republican presidency—the latter reportedly exclaimed "this is terrible" in response to a TV news report showing Gore leading on election night; Thomas' wife was headhunting personnel for a potential Bush administration; and two of Scalia's sons worked for law firms representing Bush. None of the four justices recused themselves from Bush v. Gore. Bush later nominated Eugene Scalia for U.S. labor solicitor.
O'Connor—who is now 93 years old—would come to have regrets, which she expressed years after her 2006 retirement. In 2013, she told the Chicago Tribune editorial board that Bush v. Gore "stirred up the public" and "gave the court a less-than-perfect reputation."
"It took the case and decided it at a time when it was still a big election issue," she said. "Maybe the court should have said, 'We're not going to take it, goodbye.'"
There were other reasons why some commentators refer to the 2000 presidential election as "stolen." Chiefly, massive voter disenfranchisement resulting from racist policies of Republican Florida Gov. Jeb Bush—the GOP candidate's brother—played what one federal civil rights official called an "outcome-determinative" role in the state's, and therefore the nation's, results.
Scalia infamously dismissed his friend Bader Ginsburg's concerns over Black disenfranchisement as the "Al Sharpton Footnote," and habitually advised Americans disturbed by Bush v. Gore to "get over it."
However, it was ultimately the Supreme Court's cessation of the unfinished Florida recounts, and Gore's subsequent meek acquiescence "for the sake of our unity as a people and the strength of our democracy," that handed victory to Bush.
