From New York Times, I'm Michael Barbaro. This is The Daily. Today, both the Trump and Biden campaigns are quietly preparing for the possibility of a contested election next week that could involve recounts, lawsuits and court cases. My colleague Jim Rutenberg on what Democrats and Republicans have learned from the last time that happened. It's Tuesday, October 27th.

Jim, we are a week from the election, and it is an election that for a variety of reasons, the pandemic, the volume of mail in balloting, questions about mail delivery could end up being bogged down in a lot of uncertainty and in legal disputes and could end up being contested.

And the last time that that happened that we had a contested presidential election was in 2000. And just to start, what were you doing back then the night of November 7th, 2000? Oh, God.

It's it's like an acid flashback that we know what that is like. But of course, it was an insane night. I was a real cub reporter covering the networks, covering the election night. Decision 2000, there was so much pomp and circumstance around these election night, did it become its own show?

Good evening and welcome to what promises to be a long and exciting night.

And it really became like this competition for bragging rights among the three broadcast networks.

Back at CBS News election headquarters in New York, the presidential race is crackling like a hickory fire here, ABC, CBS, ABC and with an enormous team of people all over the country tonight, we're going to try to make it fun and exciting. It is inherently exciting already.

And we're sitting around looking up at this big, old fashioned TV, switching the channels with the remote and seeing who is going to call the presidency first.

Now, the polls closed about an hour ago in two states, so we've already made some projections.

Is it going to be Al Gore, the vice president, long suffering under Bill Clinton or is it going to be George W. Bush?

And here's the electoral vote count right at this moment. One twenty one for Bush, 119 for Gore.

And lo and behold, now project an important win for Vice President Al Gore.

NBC News, NBC at 7:00 p.m.. So really early. Wow. NBC Brokaw can tell you that NBC News projects that he wins the twenty five electoral votes in the state of Florida. Al Gore has won the state of Florida.

And this is a big deal. This tells you, oh, Bush is in trouble. That is a very, very, very important state for Al Gore. And now the pressure is on George W. Bush in Pennsylvania and Michigan.

And now there is a problem with this and that's that there's a time difference to the polls are actually closed at this point and most of Florida. But the panhandle, which is very friendly to Bush, is still voting. Right.

But we are now able to make a projection in the state of Florida. The networks follow ABC News projects that Al Gore wins the state of Florida and its 25 electoral votes.

This is the biggest state where the race has been close because when one calls, there's a lot of pressure in these newsrooms that still exists today to match that call.

But, yes, Gore has captured Florida.

So the Associated Press, ABC, CBS, CNN, Fox, they join in, but the night wears on.

Stand by, stand by. And something really strange happens. CNN right now is moving our earlier declaration of Florida back to the too close to call column.

CNN decides shortly before 10:00 of Florida, we really aren't so sure anymore.

Twenty five very big electoral votes are hanging in the balance. This no longer is a victory for Vice President Gore. We're moving it back and then one by one. All right.

First of all, I was going to call it back and say the winner. I believe the state of Florida is too close to call.

The other networks follow. Now we're pulling it back into the undecided column because some bad data came. We now don't know what to make of Florida. The true line that will live in infamy comes from Tom Brokaw with the networks.

Give us the networks taketh away. NBC News is now taking Florida out of Vice President Gore's column and putting it back in the too close to call column.

So now we've got this dangling appendage to the country, Florida up for grabs. We don't know what it's going to be.

Let me tell you, I don't give people advice, but if the kids haven't gone to sleep, get them in the room because people are going to be talking about this presidential race for a long time to come.

And something very, again, very interesting happens as we're getting into the 2:00 a.m. hour. Fox News makes the call.

Fox News now projects George W. Bush the winner in Florida and thus, it appears, the winner of the presidency of the United States.

Let me guess, almost everyone else follows. What do you know, Gary?

Gary. I apologize. We're going to make a projection now. ABC News is now going to project that Florida goes to Mr. Bush.

NBC News projects that George Walker Bush, the new president of the United States, Florida, goes Bush. The presidency is Bush. That's it.

The networks have giveth again and now they have given it to George W. Bush. So I've also gotten some important details before we hear from Vice President Gore about the details of the call that has occurred between Gore calls Bush a traditional concession.

President elect Bush telling the vice president, quote, You were a formidable opponent. I know this is hard on your family, meaning that Bush had won the presidency.

So, you know, I decided I'm going to trudge through Times Square, get on the subway, go home. What a night. And I come home to my apartment in Brooklyn, turn on the TV because you want to keep fighting, of course. And you know, you want to see the concession, want to see the victory. And lo and behold, I see a bunch of umbrellas outside of where Gore is going to speak in Nashville, pouring rain.

And we haven't seen Vice President Al Gore perhaps are waiting for all the votes to be counted, all the all the eyes of out at all the T's to be crossed.

And he hasn't shown up. Oh, I just got off the phone. It is, in fact, true that the vice president has called to recant his concession.

And what we all learn is that Gore has decided against conceding because we see that the Florida results are still all up in the air. There's still disputes.

Everybody is working the phones, trying to find out the latest on Florida.

But again, the lead that Bush has is only in the hundreds. So Gore apparently has aired and conceding he caused Bush to take it back. And not surprisingly, George W. Bush is displeased, to say the least, with Gore's pronunciation of his own concession, the networks tonight.

I think that it's fair to say we don't just have egg in our face. We've got omelet over our suits at this point.

And and so the networks didn't only taketh away as the networks have put Gore in a really bad position, because having called it for Bush, Gore starts out from this place of he's the sore loser. That's sort of an argument that the Bush people have.

And it's one that's resonant to shows you how important these media costs are.

I'm always reminded of those West Texas saloons where they had a sign says, please don't shoot the piano player. He's doing the best he can. And that's been pretty much the case here tonight with this election.

We do the best we can on these calls, but we have to stand up and take responsibility and be accountable.

Right, because they are creating an on the ground dynamic, emotionally and otherwise for the whole country, the whole gamut. And so that's going to shape the rest of what's going to happen in Florida. So, Jim, what happens next on November 8th, I assume a lot of the action is now in Florida, right?

Let's begin our live team coverage in Tallahassee today where Red is standing by. Right. If you throw a ball up in the air when it falls, it'll probably fall on an attorney today, right? I think so.

And so everybody heads down to Florida and the two campaigns have very different imperatives. Gore needs votes counted. Bush needs no more votes counted.

And we started hearing stories about problems with the ballots in Florida. Anger is rising over a presidential ballot that many say confused and misled them.

I want to find out what's going on because I'm very concerned that my vote should be counted.

This is the stuff that becomes famous. You want complaints. You got them in West Palm Beach and demands for a new election. The butterfly ballot in Palm Beach County, Palm Beach County had a ballot that kind of fanned out. So you had two columns of candidates. And on one side there was a Gore button and you had to push through it with a kind of pin. And to the right, very close by is a circle for Pat Buchanan.

Gore voters there say they got confused and wound up choosing Pat Buchanan by mistake.

And what becomes very apparent pretty quickly is that some 20000 of these butterfly ballots have votes for both. Hmm. Somebody has pushed a pin through both candidates, right.

In a heavily Jewish area where Pat Buchanan is kind of the right of his time. Pat Buchanan got a definite spike in Palm Beach County. Two thousand votes more than his next closest county in the state. Palm Beach County traditionally votes Democratic.

So it seemed to be people trying to, oh, I did the wrong thing. I'm going to do this. So 20 times of what's gone, gone.

We're learning things we never thought we learned, like how you punch through a ballot and it turns out in Miami Dade.

Jackie, how were those votes counted? Do you have an hour? I can explain it. It was pretty complicated.

You punched through something called a chat. First, you have to know that the punch hole is called a chad. It is attached to the ballot by four threads.

So let's say I vote for Gore and I take a little stylus, I pop into the ballot, I poke that paper out and that little piece of paper falls down to the machine into a little receptacle. Well, what we learn is that these machines are far from perfect and that little receptacle will fill up over the course of the day. Right. And toward the end of the day, it fills up so much that some people are poking their stylus in.

But there's a ton of chads and they're pressed up against the very top of the receptacle. So you can't get through the chad is being blocked by other chads. Well, so you're left with these indents you don't poke through, especially like if a voter is not really paying a lot of attention in the morning.

The commissioners have decided that if it had been detached by only one thread, it would not be counted as a vote to detachments. Maybe three definitely counted as a vote at some point in the process that was changed.

So you end up having for that and other reasons, thousands of ballots that now don't have holes in them, just little indents they're pregnant becomes defrays and the machines can't count them. And that's some 10000 votes. That does not count it by by votes.

So, Jim, how does this all start to get resolved in Florida? Well, because the vote is so close, it's now eight hundred votes separating Bush from Gore, Bush in the lead. There's an automatic recount where the ballots go into the counting machines. Tick, tick, tick, tick, tick. They sort through them.

So hopefully that should resolve things. Well, it doesn't, because what happens is that that eight hundred vote lead for Bush becomes three hundred and twenty seven vote lead for Bush. Now it's razor thin.

So this is the time to respect every voter and every vote.

The law allows Gore to pick the counties where he wants to challenge results for manual recount.

This is a time to honor the true will of the people. And he just opts for for Miami Dade, Broward, Volusia, Palm Beach.

Machines can sometimes misread or fail to detect the way ballots were cast.

And obviously, these are counties where you could look at it one way. This is where he thinks he's going to pick up the most votes. To be fair, you could also say this is where his campaign believes voters have been disenfranchised and those voters happen to be overwhelmingly probably his voters.

And when there are serious doubts, checking the machine count with a careful hand count is accepted far and wide as the best way to know the true intentions of the voters.

And they think this because these ballots show intentionality. If you have a pregnant chad, then that's clearly a voter who was trying to vote for someone. In most of these cases, it was Gore. So he wants those recounted by hand.

So the Gore campaign in seeking this manual recount in four counties says what we're up to here is we're trying to remain faithful to the will, to the intention of the voters.

But he's also picking pretty reliably Democratic counties in which to do that.

Yeah, it's a political marriage of convenience.

And the Bush people are very quick to note that his communications director continued her PR offensive, painting Al Gore as a sore loser, more concerned with himself.

This is no longer the ticket. A Gore Lieberman for his vice president, Joe Lieberman, it's the ticket, a sore loser, Mitt.

And they have a legal argument. And the legal argument is, is this even fair that select counties are going to get recounts?

The Gore campaign strategy, I think, is crystal clear. Keep conducting selective recounts until the results change.

Is every voter being treated equally and then they even have a question about intentionality. One electoral board may decide to count votes that are not fully punched, another may not.

How do you know what the intention was? Maybe the person who dimpled the chad changed his or her mind in the middle of voting and left the presidential ticket blank.

If this new selective recounting process proceeds, the votes in some counties will be counted in a completely different and standardless manner.

To the Bush campaign's case is rules are rules. You can't divine a voter's intentionality based on an indentation of a ballot. And if we don't play by the rules, then this whole thing's going to descend into chaos.

Yes, and it's an argument that really resonates throughout parts of Florida.

So is Al Gore granted his request for manual recounts in these four counties? Al Gore is indeed granted his request. But there's one moment that stands out above all others. And it is now known to history as the Brooks Brothers riot.

So Miami-Dade is going forward with its counting. The Bush campaign has challenged these recounts in court and the Florida courts are ruling with Gore, but they're not giving them free reign for this count to go forever. There are deadlines. They've got to get some of this counting done. So the Miami-Dade canvassing board has six hundred and eighty thousand ballots to count. It's a lot about it's a lot of ballots. And there's a three member panel that's in charge of this.

They're working in this sort of monolith in downtown Miami. Maybe you've seen it when you've been there. It's like a Soviet style building off of the ninety five extension there. And what they decide is that they can't do six hundred and eighty thousand ballots, so they decide they're going to count 10000 plus that didn't make it into the machines, these dimpled hanging chads. So those are the ones we're going to focus on now as they do that Republican operatives, Bush campaign has decided that they are going to make this one of their last stands, if not the last stand, and they muster everything they have.

We are paralyzed now with the prospect of Al Gore and his legal machinations. There's talk radio people. He will stop at nothing in order to try to steal this election from George W. Bush.

It's really they're fired up. Activists be more brazen attempt by the Gore people and the Democrat machine and the thugs in that building to hijack the American presidency and their bare knuckled operatives, including a gentleman named Brad Blakeman and a name many are familiar with, Roger Stone.

They are going to stop it. They call people to come and protest this theft, loud protest is theft at the Miami Dade Municipal Building.

These protesters went up in the elevators and they're storming this office.

And it is a sea of their very preppy.

They are in khakis and buttoned down shirts and it's just shouting and vests and they're banging down the doors.

Thus the Brooks Brothers. Right. Don't let me forget the Blazers, but the thing that they're chanting is voter fraud and stop the fraud. So now what they are saying is that this canvassing board is committing fraud. This is voter fraud.

And there's no evidence of this whatsoever.

This is all being overseen by courts at this point. And there's no evidence whatsoever that there's any fraud going on. But that's the chant. And basically the canvassing board facing a deadline, still having thousands of ballots to count and suddenly being swarmed by preppy Republican operatives, angry preppy Republican operatives. They fold their tent and they decide they are not going to count. They don't finish counting. They do not finish counting. So this protest, this invocation without justification of voter fraud, it sounds like, perversely, it was effective and in a county and at a moment when the recounting by hand was starting to look pretty good for Al Gore until it was stopped, its super effective.

It stops the counts in a major county where Gore is poised to pick up hundreds of votes in an election that is at this point the winner separated from the loser by just a few hundred votes.

So after the hand recount deadlines are reached and the counting ends, what happens? So Gore tries to get a court order to tell this county board, you have to count, keep counting. He doesn't get it. And the secretary of state, Katherine Harris.

Good evening. Who's closely allied with the Bush campaign?

The certified result in the presidential race in Florida is as follows certifies the state in accordance with the laws of the state of Florida.

I hereby declare Governor George W. Bush the winner of Florida's 25 electoral votes for the president of the United States and therefore the presidency for George W. Bush.

Pandemonium ensues, and Gore sues, loses, his first case wins on appeal. It's like a tennis match now in the courts. We're all trying to figure out the last ruling before the next one comes. And then finally, Bush appeals it up to the US Supreme Court and the Supreme Court goes on December 12th and a five four ruling split along ideological lines that this is the end of the road. The counting must stop and George W. Bush is now officially the president.

I have a lot to be thankful for tonight. I'm thankful for America and thankful that we were able to resolve our electoral differences in a peaceful way.

Gore he decides that he is going to fold his tent and concede.

Just moments ago, I spoke with George W. Bush and congratulated him on becoming the 43rd president of the United States. And I promised him that I wouldn't call him back this time.

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Max. So, Jim, in retrospect, what were the lessons that both parties learned from this acid test ordeal that you have just recounted? And let's start with the Democrats. What did they learn from this?

OK, there's so many. But I'll start with from big to huge and big is perception matters, everything that's going to come afterwards based on what you do right after Election Day and of course, case, he concedes. And he didn't quite have to yet. So you're looking like you're losing a state, but it's like a teeny tiny number of votes and they're not all in yet. Like, guess what, don't do that, that Al is going to be on your forehead the whole time.

Then perception matters as you approach your litigation. So Gore picks these four counties where he's almost guaranteed to come out on top while making these high minded declarations that he's just trying to make sure every vote counts. And this is about democracy. So he undercuts his own message. And, you know, that was kind of a mistake on the legal team's part.

So you need better lawyers and you need more lawyers, more lawyers, because there's an arms race that starts here.

But then most importantly, judges, you need judges who are going to decide these cases the way you want them decided. And the courts are going to be the last refuge to get judges in place. And the Republicans had outmaneuvered the Democrats in this respect. And the Democrats know they need more judges. But over the years, they continue to struggle to get more judges, in part because of some blocking on the Republican side at the Senate level by Mitch McConnell, the Senate leader.

But judges matter right on the Supreme Court.

Justices appointed by Republican presidents ultimately handed the election to a Republican nominee and no Democrat lost sight of that fact.

OK, so what about the Republicans, Jim?

What are the lessons in two thousand for them?

OK, so same structure, big to TUJ in this case. They've learned that lawyers matter as well. They kind of already have the sense that they do this, but OK, good, keep doing that. Judges can be decisive. Excellent. More judges. Let's keep doing that. But judges, judges, judges. But the next lesson revolves around this emerging concept of voter fraud. And the reason I'm so fascinated by the Brooks Brothers riot is that this crowd is chanting voter fraud, voter fraud when voter fraud is not occurring.

But with that charge, they stop votes from being counted. It gives them cover to forward their strategy to limit certain voters and certain votes from counting. And that carries forward in a major way into Bush's presidency. Instead of fighting for voters rights, the Bush Justice Department becomes defending against voter fraud. They're going to really forward this concept that bad things are happening, that advantage Democrats for voter fraud. And this carries out to the states where these red states, these Republican governors and this pictures through the Obama administration, even more voter fraud is real and we need to stop it.

And the moves they make to stop it, voter I.D. trying to limit things like early voting, these things that end up disadvantaging black voters, Hispanics, poorer voters who happen to vote Democrat and President Trump has learned the lessons of Florida times a thousand.

This is going to be a fraud like you've never seen. You want to vote by mail voter fraud.

But this mail in voting with mail indiscriminately, millions and millions of ballots to people. You're never going to know who won the election. You can't have that.

You want to put the mail in the Dropbox, let's call them fraud boxes.

As far as the ballots are concerned, it's a disaster. You want more curbside voting. That's voter fraud.

And I'm not going to say which party does it, but thousands of votes are gathered and they come in and they're dumped in a location. And then all of a sudden you lose elections if you think you're going to win.

And this perception of voter fraud, which again, never substantiated, usually abjectly false, it colors everything as he heads into what he's planning to have as a litigation strategy.

Last night, the Trump campaign sued the state of Nevada over its plan to send absentee ballots to all active voters, which is challenge any effort the Democrats make a civil rights groups make to have more people vote in a pandemic under the guise under the rubric with the cloud of voter fraud.

President Trump's re-election campaign took the battle over mail in ballots to New Jersey and Iowa judge rejected fifty thousand absentee ballots.

So this litigation is really formed again in the name of voter fraud. But also it goes back to this notion in Florida of what should really carry the day, the way the voters followed the rules or what was their clear intent when they were trying to vote. And the Republicans are really pushing on this idea of sticking to these rules.

And the Trump campaign is suing Montana's Democratic governor to try to stop expanded mail in voting in the state, suing to block North Carolina's mail in voting changes.

Election law experts have counted over two hundred lawsuits filed in the lead up to the start of early voting.

So this emphasis on voter fraud, which we think of, is synonymous with Donald Trump as a candidate that very much originates in this two thousand fight between Bush v. Gore. It's son of Florida, son of Chad.

So, Jim, what about the Democrats, how are they applying these lessons of defeat from 2000 now?

Well, they know that they are not looking at a very favorable Supreme Court. So their strategy has become to keep the margins easier said than done, keep the margins high enough in those vital states that are going to decide the Electoral College, that they can withstand any litigation that's going to throw out disenfranchise large numbers of their voters.

The Democrats also have learned about the communications war, about the information war around voting, and they're not going to make the same mistake as they made in Florida. They're going to fight back.

And what they've done in terms of fighting back is there is no no evidence of all the studies done of widespread voter fraud really press the notion that there is not evidence for voter fraud.

And the truth of the matter is that all the talk about voter fraud, did the president find any of it, that what Trump says about voter fraud just simply isn't true?

There's not evidence for it, just not true. So they're very much communicating that.

And there's another phenomenon at play in their favor here is that when there's a lot of noise around and a lot of attention to suppressive tactics, to the appearance and or reality that Republicans are trying to suppress votes, that Democratic voters respond by coming out and force that you are not going to take my vote. It makes them mad. It motivates them. We're seeing it even now that they're getting these super long lines, these giant early voting numbers. So this might be backfiring to some extent on the Republicans.

So the lessons of 2000 are all about what happens when an election is contested. And of course, the Democrats are working very hard to avoid that.

But let's assume that it does happen. This is a contested election in a week or so.

It sounds from everything you've said that what we should expect is nobody is going to concede. There's going to be great lawyers picking recounts very carefully. There's going to be a lot of claims of voter fraud and then counterclaims of voter suppression could be waves of litigation and a tremendous amount of division. And therefore, I have to say, I don't think you've painted a very hopeful picture for us.

Michael, you know, I hate to let you down. And there's nothing nothing I would love to give you more than a sunshiny picture about American democracy at this moment. But the truth is, from the reporting I've done from studying what happened in 2000, from living through what happened in 2000 in the case of a contested election, I just can't do that. If this is a contested election, we have to look at 2000. I hate to say it as our model.

The courts will most likely have to step in and decide in that case if it gets that far.

Well, Jim, thank you very much. Thanks for having me. We'll be right back. Support for this podcast and the following message come from Comcast business today. Businesses are starting to bounce back, but what if you could do better than that? What if you could adapt and find new ways to succeed with new customers while Comcast business wants to help you do just that? They want to help businesses not just bounce back, but bounce forward to learn more.

Call one 800 five zero one six thousand or go to Comcast business dotcom. Here's what else you need to know today on this vote, the ayes are 52, the nays are 48. The nomination of Amy Barrett of Indiana to be an associate justice of the Supreme Court of the United States is confirmed in a bitter party line vote.

The Senate confirmed Amy CONI Barrett to the Supreme Court on Monday night, cementing the court's conservative majority, infuriating Democrats and deepening the partisan divide over judicial nominations.

My colleagues, there is no escaping this glaring hypocrisy. During a series of speeches from the Senate floor, Democrats called the confirmation an act of brazen hypocrisy since Republicans had blocked a similar election year nomination under President Obama, calling it improper.

As I said before, no tit for tat convoluted, distorted version of history will wipe away the stain that will exist forever with this Republican majority and with this Republican leader.

Republicans ignoring that critique, focused instead on what they said were CONI Barret's sterling credentials or intellectual brilliance, is unquestioned.

Her command of the law is remarkable. Her integrity is above reproach.

Shortly after the vote, CONI Barrett was sworn in by a fellow conservative Justice Clarence Thomas, during a brief ceremony at the White House.

And that I will well and faithfully discharge and that I will well and faithfully discharge the duties of the office on which I'm about to enter the duties of the office on which I am about to enter. So help me God. So help me God. That's it for The Daily, I'm Michael Barbaro. See you tomorrow. As we plan for the future, city provides you with the financial expertise and agility you need to help you bank like your best days are ahead.

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