I’ve been seeing a lot of posts out there drawing comparisons about how this is “Bush v. Gore” all over again. Rest assured this is far from Bush v. Gore (“BVG”) Let’s take a brief trip back in history to remind us all of that very wild year.

Background.

On 11/8/2000, a day after the Presidential election, the result was that Bush had received 2,909,135 votes, and Gore received 2,907,351 votes. The margin was 1,784 votes.  As a result of the small margin of victory (less than .5%) Gore demanded an automatic recount as provided by state law, and this triggered a manual recount process.  In the end, it seems that the recount still favored Bush, but by an even smaller margin.

Gore, continuing to appeal the outcome, advising that the recount wasn’t complete, received a ruling on 12/8/2000. On 12/8/2000, the Supreme Court of Florida (“SCFL”) ordered that (a) the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County, (b) the electorate should also include in the certified votes, totals of 215 votes identified in Palm Beach County and (c) 168 votes identified in Miami-Dade County (which were for Gore).

Bush, frustrated at both the count, as well as the process, noted that the net gain should have only been 176 in total and filed an emergency application for intervention, citing to voting issues.

While there were a lot of nuances going back and forth during this time, one of the major issues concerned how the SCFL was essentially changing the process as it went along. They waived certain deadlines with no precedent (See Fla Stat. 102.111, 102.112), set new deadlines, ignored certain votes, slightly modified the definition of a “legal vote” (already defined by the US Supreme Court previously), and even ruled that about 9,000 ballots were no good and should be disregarded as the machines were failing.

Issues.

BVG asked 2 questions: (1) whether the SCFL was permitted to establish new standards for resolving presidential elections (which they were determined to not have the right); and (2) whether the use of a “standardless manual recount” violates the Equal Protection and Due Process Clause (which it did here).

So to just make this crystal clear.

Question 1.  Was the SCFL was permitted to establish new standards for resolving presidential elections?

Yes, but it needed to comply with existing rules, which this did not.

Florida ran into an issue because they violated 3 U.S.C. §5, which protects the right of the “electorate” (i.e. the electors, known as the electoral college). The Court pointed out that 3 U.S.C. §5 requires that any controversy or contest that is designed to lead to a conclusive selection of electors for President of the US be completed by 12/12, and FL was unable to comply with the appropriate number of days available and ran beyond that mark.

Moreover, the issue of having a standardless recount…

Question 2. Whether or not the use of standardless manual recounts violates the Equal Protection & Due Process Clause?

Yes. It is a violation.

The Court concluded that the lower court’s decision violated the equal protection clause of the 14th Amendment, because the lower court failed to identify and require standards for accepting or rejecting contested ballots. Acts such as (a) making decisions based on partial totals, (b) overlooking the “intent of the voter” by casting and permitting “legal votes,” (c) ignoring equal protection guarantees and focusing on speed, and (d) not having recount procedures in place, under the judgment of the state’s highest court, will be found to be unconstitutional.

Takeaways for us.

  • Not having a recount plan in place prior to the actual recount will be a problem. Such plan will be found to be unconstitutional.
  • Permitting votes that are not true “legal votes” is not permitted.
  • A “legal vote,” as determined by the Supreme Court, is “one in which there is a “clear indication of the intent of the voter.”
  • Using “partial totals” without assurances, is inconsistent with the minimum procedures necessary.

While I am sure the above is not the entire story, nor is it the entire focus, and men and women who are much smarter and craftier than I will always find something to push their case, it seems like the questions I would begin asking would be:

  • Did each of these states have a contingency plan in place that would take effect if (a) the machines were having issues, (b) the USPS or other carrier service failed in delivering the mail, or (c) the submissions would run late?
  • Of the votes counted, or dismissed, can you still tell the true and clear intent of the voter?
  • When the decision was made to make a change in how the state is handling the counting process, were all changes and directives discussed and in effect at least 6 days prior? (safe harbor?)

Finally—can a state permit new and additional ballots delivered AFTER the election?

The answer should be NO based on 2 principles:

The Purell Principle, by changing state election rules too close to an election you all but destroy the administration of the election process; and

If it comes from an executive order, or something other than the state legislature, it is unconstitutional, even in light of the “pandemic”

Only time will tell the outcome. I admittedly do not know all the nuances and underlying facts, but I certainly am comfortable with the above and whoever’s facts fall within the above rules, will rule the day.

Vinny