Lenhart: Trump v. Biden and Lessons from Bush v. Gore

By Ben Lenhart

The 2000 election between George Bush and Al Gore, and the wild vote recount that followed, hold important lessons for the 2020 presidential election between Donald Trump and Joe Biden, lessons grounded in the Constitution.  

The 2000 election was very close and came down to a single state: whoever won Florida would win the election. The initial Florida vote results showed Bush leading Gore by less than one tenth of one percent. The ensuing Florida recount quickly turned messy, with intense arguments from both sides over which votes to count and which to reject. Even weeks after election day, without an official result in Florida, America did not know the name of its next president. The dispute rapidly landed in the Supreme Court, in a famous case called Bush v. Gore. Here are key lessons from that tumultous chapter in American politics for our 2020 election.

Bush v. Gore – Supreme Court 

With the Florida vote results—and therefore the entire 2000 presidential election—still up in the air more than a month after Election Day, the Supreme Court heard arguments in the case of Bush v. Gore on Dec.11. Days earlier the Florida Supreme Court had ordered a partial recount in Florida, after state and local officials were unable to agree on the correct recount process. In a nutshell, Bush argued that that the recount should stop because it was being conducted improperly, and that the vote totals already declared by Florida election officials—where Bush led Gore by a thin margin—should be declared final. Gore argued the opposite: he wanted the recount to continue in hopes that it would show he had more votes. 

Bush won a split decision. Seven of the nine justices agreed that the Florida recount was proceeding in such an uneven fashion—with some Florida counties accepting certain questionable votes (such as those with “hanging chads”), and other counties rejecting the same type of vote—that the recount violated the Equal Protection clause of the Constitution, and the core principle that each vote must be given equal weight and dignity. However, the court sharply split, five to four, over the remedy—what to do about the Constitutional violation? The majority ordered a halt to the recount, which quickly led to Gore conceding, and Bush winning the presidency by a razor thin margin (less than 600 votes out of total of 6 million total Florida votes). But four justices wrote a stinging dissent, saying that the case should have been sent back to Florida to allow for a more uniform recount (time permitting) that complied with the Equal Projection requirement.  

Local Power

Even though a presidential election is for federal office, the Constitution (Article 2, Section 1) provides that each state gets to set the “rules of the road” for the election, including the form of the ballot, mail-in voting rules, poll hours and places, etc. All these rules vary from state to state, even though they are all voting in the same election for the same office. Why is this? Why allow the 50 states to set up a patchwork of differing rules for the presidential election? More broadly, why do gun laws, minimum wage laws, speed limits, divorce laws, drug laws—and thousands of other laws—vary greatly from state to state?  

The answer lies at the core of America. We are not a nation where the central government controls all facets of life (a feature of dictatorships). Quite the opposite, America is a shared system of power, where the federal government holds only those powers given to it by the Constitution; all other powers remain with the states (a point confirmed by the 10th Amendment). The courts will not hesitate to strike down federal laws—even wise ones—that exceed the powers given Congress by the Constitution. 

Despite its inefficiencies, this “power sharing” model was no accident—this design was woven into the Constitution by the Founding Fathers. First, when the Constitution was drafted in 1787, powerful voices demanded a small and limited central government. Having just cast off England as a distant and centralized power, we did not want to give birth to a “second England” where citizens’ lives were dictated by a central government that did not understand their local circumstances. Second, and most important, America is, at its best, a government “of, by and for the people.” Shared power captures this idea, and allows many important decisions to made locally. Local power gives more people the chance to be active citizens and have a say in their local affairs (a quality deemed essential by the founders) and it allows for “laboratories of democracy” as states and localities try out new ideas. Finally, the vertical separation of power, by serving as a check and balance on governments at all levels, seeks to reduce the odds of government tyranny and increase the odds that “we the people” retain the fundamental liberties guaranteed by the Constitution.

No Discrimination Among Votes

The second lesson of Bush v. Gore is equality—all votes must be treated equally. First and foremost, this means that any law would be struck down if it denied the right to vote, for example, based on race (violating the 15 Amendment) or gender (violating the 19 Amendment). But at a more subtle level, the Constitution prohibits unequal treament of votes by different counties or localities (or even within a county). It may violate the Constitution if one county rejects votes where the ballot contains minor errors (for example, someone marks a circle on a ballot but fails to color in the entire circle) while another county accepts similar ballots and counts those votes. This is an example of equal votes being treated unequally. 

The problem intensifies if a Democrat-leaning county uses one approach, and a Republican-leaning county uses another—in a close election, such a disparity may not only violate the Constitution, it could also change the very outcome of the election. The Bush v. Gore majority found that this sort of unconstitutional disparity was occurring in Florida: different counties were approaching the recount in such different ways that Florida votes were not receiving “equal weight and equal dignity.” In the end, it will be question of degree: some variation among voting procedures is inevitable from place to place, and is permissible, but when those variations are big enough to cause similar votes to be counted differently, the Constitution steps in and demands a different and more equal approach.

Finality for the Nation

A final lesson from Bush v. Gore is that the nation needs finality after a presidential election. The nation urgently and quickly needs to know who won. This is not idle curiosity. The identity of the next president impacts planning by businesses, governments, families and others. Enemy countries may see weakness and opportunity for mischief if America has no clear leader. Fortunately, the Constitution and federal law set out clear deadlines for determining the next president. Federal law provides that (a) the presidential election is on the Tuesday following the first Monday in November; (b) the electors making up the Electoral College vote for president and vice president on the Monday after the second Wednesday in December; and (c) the electoral votes are counted in Congress on Jan. 6. The Constitution itself (20th Amendment) provides that the new President takes office on Jan. 20.

This tight timeline was a key driver in Bush v. Gore, which heard oral argument on Dec. 11.  The electors where scheduled to vote nationwide on Dec. 18 and Florida needed to officially declare its electors by Dec. 12 to ensure, according to the court, that Florida could fully participate in the electoral vote on the 18th. These short deadlines weighed heavily on the Bush v. Gore outcome, and they would be just as important in any Trump v. Biden recount. 

Conclusion. If the Trump v. Biden election is close, with disputed votes and recounts, Bush v. Gore provides a roadmap. Each state (not the federal government) largely gets to control its own recount process, but the Supreme Court stands ready to jump if the recount procedures are unequal or unfair, or if the recount is taking too long and causing unacceptable delays in the determination of the new American president.

Ben Lenhart

[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]

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