US Election 2020: Are we to have another Bush v. Gore?

"US Elections 2020

- Tight Battles in key states"

Tight battle in key states

• BIDEN,DEMOCRAT,224
• TRUMP,REPUBLICAN,213
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Source: Images and captions culled from BBC News.

Personal Commentary: A recap of Bush v. Gore

In Bush v. Gore, the issue for determination was whether the standard-less manual recount procedures-approved by the Florida Supreme Court- violates the Equal Protection and Due Process Clauses of the United States Constitution. The facts of the case merit some review.

Consequent upon the Presidential Election of Nov. 8, 2000, in Florida and the declaration of Gov. Bush (Candidate of the Republican Party) as the winner, Vice President Al Gore (Candidate of the Democratic Party) applied for a manual recount of cast votes to be done in four counties, pursuant to Florida’s election protest provisions.[1] Eventually, the Florida Election Canvassing Commission certified the post-machine recount results, without undertaking the manual recounts sought by Gore.  Gore then filed a complaint at the Leon County Circuit Court, contesting the capacity of the machine recount in detecting the “intent of voters” and seeking for manual recounts of the ballots.

The Circuit court denied all the reliefs sought and Gore appealed to the District Court, which itself certified the matter to the Florida Supreme Court.  The Florida Supreme Court ordered the manual recounts as sought by Gore and Bush appealed the decision to the U.S. Supreme Court. In the now-famous - but controversial- per Curiam opinion, the US Supreme Court majority by a 7-2 consensus reversed the Florida Supreme Court order, finding therein a violation of the Equal Protection Clause. It held that:

"The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise… It must be remembered that ‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’… The recount mechanisms…do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right… The search for intent can be confined by specific rules designed to ensure uniform treatment… The want of those rules here has led to unequal evaluation of ballots in various respects".[2]

One of the lasting significances of Bush’s decision to the body of American electoral and constitutional jurisprudence relates to its holdings that a “uniform treatment” is required in evaluating citizens’ vote. In essence, the majority held that, in the case of a recount, an adequate state-wide standard - as opposed to the discretionary standard favoured by the dissent[3] - must be used in evaluating electoral ballots. The Court, however, admitted that “…the problem of equal protection in election processes generally presents many complexities…” and urge subsequent courts to apply its holdings with caution.

Questions for the 2020 Elections

Given the allegation of electoral fraud being raised by President Donald Trump and his commitment to challenge any declared results up to the US Supreme Court, will the USA witness another Bush v. Gore impasse? The next couple of days will tell.

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[1]    Fla. Stat. Ann., § 102.166

[2]    Bush v. Gore, 121 S.Ct. 525 (2000), 530 (citations omitted) (emphasis added).

[3]    ibid, 541 (“Admittedly, the use of differing sub-standards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated…by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process…the machinery of government would not work if it were not allowed a little play in its joints.’) (Justice Stevens).

Felix Omosele

(c) 4th November 2020