“Bush v. Gore as Precedent in Ohio and Beyond”

I have written this post for the ACS Blog:

Almost from the moment in December 2000 that the Supreme Court decided its controversial opinion in Bush v. Gore ending the recount in Florida, there has been great debate about whether the case had any precedential value and, assuming it did, what precisely its equal protection principle stood for. Was it a one-day-only ticket? Is it a case about equality of procedures in the conduct of a jurisdiction-wide recount? Or does it require broader equal treatment of voters, so as to fulfill Bush v. Gore’s admonition against the government, by “arbitrary and disparate treatment, valu[ing] one person’s vote over that of another”? We may finally find out the case’s precedential value as soon as the 2016 elections.

At the Supreme Court, Bush v. Gore has been a legal Voldemort, a case whose name a Court majority has dare not spoken since 2000. Only Justice Clarence Thomas has cited the case, in a dissenting opinion, and not speaking on its equal protection principles.

Lower courts have been initially divided over whether Bush v. Gore could be used to force jurisdictions to require greater equality in the conduct of elections. Is it an equal protection violation, for example, to use much less reliable voting technology in some parts of a state but not in others? Some courts initially ruled such disparities created constitutional problems. By 2007, however, federal appellate courts seemed to reject these muscular readings of the case, and I declared the precedent all but dead in a 2007 Stanford Law Review article.

But since the time I wrote that article, a key federal circuit has resurrected Bush v. Gore as precedent: the Sixth Circuit. In a number of cases out of Ohio, the perennial battleground state in presidential elections, the Sixth Circuit has found lack of uniform rules in the state to raise Bush v. Gore problems. It has held that the disparate treatment of provisional ballots in a recount violate Bush v. Gore equal protection principles, that the disproportionate distribution of voting machinery leading to long lines in more populated areas can violate the principle, and that giving only certain military and overseas voters but no other voters the chance to cast a ballot in early voting the weekend before an election violates Bush v. Gore.

Most recently, in 2014, a federal district court held that Ohio’s cutback in the number of days of early voting violated Bush v. Gore. The Sixth Circuit rejected a request to stay that order but the Supreme Court, without opinion reversed, allowing Ohio’s early voting cutback to go through. The vote was 5-4 at the Supreme Court, suggesting deep division on the Court (although the ruling might have been more about the timing of the relief than about the merits).

Those deep divisions shown by the Court and the question of the meaning of Bush v. Goreitself could make its way back to the Court in time for the 2016 election. There is a new challenge to Ohio voting cutbacks currently pending in federal district court, and it would not be surprising to see the Court asked to weigh in on the meaning of Bush v. Gore yet again.

If past performance is any guide, the Court will do what it can to avoid uttering the words Bush v. Gore and reflecting on the case’s merits.

With a lot potentially riding on the results in Ohio in 2016, however, the temptation to decide the question of Bush v. Gore as valid precedent may finally prove irresistible.

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