It’s Election Day, and there are already lawsuits challenging votes and voting procedures. Some of them are invoking the Supreme Court’s 2000 decision in Bush v. Gore, which effectively handed that year’s presidential election to George W. Bush. We should expect a lot more to come.
Bush v. Gore is widely misunderstood. It rested on exceedingly narrow grounds. As the court put it, the key issue was “whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.”
The Florida Supreme Court had ordered a recount that would require votes to be counted in accordance with the “intent” of the voter. There’s nothing wrong with that. The problem was that Florida’s high court failed to lay down specific standards to ensure “equal application” of that principle. And indeed, the standards for accepting or rejecting ballots ended up varying widely, not only from one county to another, but even from one recount team to another.
Back in 2000, many Florida voters used punch cards, and many of their votes produced only partly punched ballots, leaving those famous “hanging chads.” Should those ballots have counted? Different recount teams used different standards. That meant that whether a person’s vote would count depended on a kind of lottery -- the specific recount team that was doing the counting. In the US Supreme Court’s view, this was unequal treatment, and it violated the equal protection clause.
At the same time, the court was careful to say that its ruling was limited to very rare and specific circumstances. “The recount process,” it said, “is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.”
To amplify the point, the court added a crucial qualification: “Local entities, in the exercise of their expertise, may develop different systems for implementing elections.” The problem in Bush v. Gore was that “a state court with the power to assure uniformity has ordered a statewide recount” that did not ensure that “the rudimentary requirements of equal treatment and fundamental fairness are satisfied.”
We cannot rule out the possibility that the ruling in Bush v. Gore might turn out to be relevant to the current presidential contest. We might have a Trump v. Biden, testing the question of whether a recount satisfies those “rudimentary requirements.”
But that’s not imminent.
What is starting to happen, even on Election Day, is that Bush v. Gore is being invoked wrongly -- not in the context of a statewide recount lacking the necessary uniformity, but as a challenge to local entities, making different decisions for implementing elections. A note to Republicans and Democrats alike: Bush v. Gore does not draw into legal doubt the right of local authorities to decide how to conduct their elections.
On Tuesday morning, for example, Republicans invoked Bush v. Gore in Montgomery County in Pennsylvania, challenging a county’s process for dealing with certain absentee ballots. Apparently some of those mail-in ballots were defective, and officials decided to notify voters in order to allow them to change their ballots. The Republicans who are objecting contend, among other things, that some counties in Pennsylvania are not doing what Montgomery County is doing, thus treating voters differently and so violating Bush v. Gore.
That’s not a good argument. Recall that in Bush v. Gore, the court was keenly aware that “local entities, in the exercise of their expertise, may develop different systems for implementing elections.” Some of those differences stem from resources: long lines in some places, short lines in others. Some of them stem from different policy calls about the best technology, about how to handle the risk of error, or about social distancing and COVID-19. In the years since Bush v. Gore, the lower courts have been cautious and respectful of the prerogatives of “local entities,” and of their ability to make different choices.
To be sure, there are limits. It would hardly be permissible to accept the votes of Democrats while rejecting the votes of Republicans, or to count votes in accordance with principles that are so broad, and so abstract, that similarly situated voters would not be treated similarly. Standardless vote counts, no less than standardless recounts, would not satisfy “the rudimentary requirements of equal treatment and fundamental fairness.”
Still, Bush v. Gore was a response to the specific problem of standardless recounts in Florida, and it was written with care to ensure that it would not be taken to strike down “different systems for implementing elections” within states. On that point, at least, Republicans and Democrats should be prepared to agree.
Cass R. Sunstein
Cass R. Sunstein is a Bloomberg Opinion columnist. -- Ed.