The U.S.¡¯s Election Day has come and gone, 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.
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