Cass R. Sunstein, Columnist

Don’t Invoke Bush v. Gore to Challenge 2020 Voting

Lawyers are already in court protesting election procedures, but the Supreme Court’s 2000 case only set standards for recounts.

November 3, 2020 at 5:29 PM UTC

By Cass R. Sunstein

Cass R. Sunstein is a former Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

It’s not about these guys now.
Photographer: Tannen Maury/AFP via Getty Images

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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.”