Don’t miss Ned Foley’s analysis of the Sixth Circuit decision filed yesterday in the provisional ballots/wrong precinct case. Here’s a taste:

The link, then, between Bush v. Gore and conventional Equal Protection analysis is the unacceptability of “arbitrary” distinctions among voters that results in the disenfranchisement of some but not others in the context of the same election. This linkage manifests itself in two ways. First, there is the special need to be wary of such arbitrary distinctions in the particular context of ballot-by-ballot determinations. Second, there is the increased risk that these ballot-by-ballot determinations will, in fact, be arbitrary if they are not guided by legislative policy established before the ballots were cast. The Sixth Circuit majority opinion put these two related points together in reaching its specific conclusion that in this case Hamilton County had not offered a persuasive justification for its differentiation of the two groups of provisional ballots: “the Board exercised discretion, without a uniform standard to apply, in determining whether to count miscast ballots due to poll-worker that otherwise would have been invalid under state law.” (Page 27.) This key sentence, in the midst of the explanation why Hamilton County did not satisfy traditional Equal Protection scrutiny, incorporates the operative terminology of Bush v. Gore (“discretion, without a uniform standard”). In this way, the majority opinion treats Bush v. Gore, not as an outlier, but as an integral part of Equal Protection analysis for this kind of ballot-counting case.

As Ned notes, it is possible that this precedent is reviewed further by the en banc Sixth Circuit (as happened to what was then the most important post Bush v. Gore case, Stewart v. Blackwell), or through U.S. Supreme Court review.