April 21, 2006

Some Additional Thoughts on the Sixth Circuit Opinion in Stewart v. Blackwell, and the Future of Bush v. Gore in Elections

I have now had a chance to take a somewhat closer look at (though not a detailed read of) today's Sixth Circuit opinion holding that the selective use of unreliable punch card machines in some Ohio counties but not others violates the Equal Protection Clause of the First Amendment.

As others have noted, one of my law review articles (written as part of a symposium at Florida State University) plays a major role in the debate between the majority opinion and dissenting opinion over the precedential value of Bush v. Gore. The article is Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 FSU Law Review 377 (2001).

Drawing upon Part II of my article, the dissent argues that Bush v. Gore should not be applied as applied as valid precedent. (See page 38 of the pdf of the Sixth Circuit decision). Here is how I described Part II at the beginning of my article:

    Part II of this Article argues that although some have heralded the opinion as the (perhaps unintended) dawn of a new era in the jurisprudence of equal protection in elections, there are good reasons for doubting that the Supreme Court majority intended anyone to take their equal protection holding seriously. Language in the per curiam opinion limits it to the facts of the case, or, at most, to cases where jurisdiction-wide recounts are ordered. Moreover, the Court's own analysis was superficial. It failed to explain or justify its large extension of precedent, and, most importantly, given the fact that a "fundamental right" was involved, the Court appeared to speak the
    language of strict scrutiny but apply something much less than strict scrutiny. Finally, the kind of equal protection claim favored by the conservative Justices in the Bush v. Gore majority is a strong departure from the usual equal protection jurisprudence they favor. Time will tell whether the Court backs away from its ambitious new equal protection jurisprudence. To the extent that the Court does back away, it further undermines the already-questioned legitimacy of the opinion.

The dissenting judge notes that "Since Professor Hasen's article, the Supreme Court has had ample opportunity to prove him wrong, by explaining, or even citing to its decision in Bush v. Gore [citing Clingman, Veith, McConnell, Georgia v. Ashcroft]. But despite taking a steady load of election-related cases, the Court has not cited Bush v. Gore even once..." The dissent then applies the relatively state-friendly standard of review in Burdick v. Takushi to decide the case, and under that standard it holds there is no equal protection problem with the selective use of punch card votes.

The Sixth Circuit majority's view is that the Supreme Court's precedent in Bush v. Gore is binding on that court whether it is good precedent or not. (See the opinion's footnote 8: "Murky, transparent, illegitimate, right, wrong, big, tall, short or small; regardless of the adjective one might use to describe the decision, the proper noun that precedes it -- 'Supreme Court' carries more weight with us. Whatever else Bush v. Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.") The majority then proceeds to read Bush v. Gore as requiring application of strict scrutiny to the question before it, finding that because of the much higher chance that a vote cast on a punch card machine won't be accurately counted, the Equal Protection Clause is violated. (The court says it would reach the same conclusion under a rational basis test.) To support its analysis, the court relies heavily on other aspects of my article, including my argument that if we took Bush v. Gore seriously, courts should apply strict scrutiny and strike down the selective use of punch card voting machines in only part of a state. The majority writes (pdf 26-27):

    Moreover, the dissent bases its analysis entirely upon Professor Hasen's suggestion that Bush v. Gore is not serious, but fails to acknowledge the second half of Hasen's article where he concludes that: "In sum, if Bush v. Gore indeed has precedential value, it clearly should apply to prevent the use of these different voting systems in the same election." Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 395; see also id. at 379 (stating that his article "concludes that, if the case were taken seriously, Bush v. Gore should have great precedential value in changing a host of voting procedures and mechanisms, particularly when those procedures and mechanisms are challenged prospectively"). Thus, the dissent's argument is easily deconstructed. It is premised solely on Professor Hasen's article suggesting that Bush v. Gore should not be given precedential value.

    Because the dissent concludes that the decision should not be given precedential value (because the Court did not take the case seriously and an apparent inconsistency with other precedent) it does not mention the fact that Professor Hasen goes on to conclude that if Bush v. Gore were followed, it would dictate the result we reach here. Unfortunately for the dissent, inferior courts do not have the luxury of suggesting that a Supreme Court decision simply should not be followed without some tenable legal basis. Thus, because the dissent has not endeavored to provide any legitimate basis or principled manner of distinguishing Bush v. Gore --and presumably has not adopted Hasen's argument that "[e]mbarrassment provides the only hope that the case will have precedential value," Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 391 --his argument that we simply should not follow the case does not give us any pause.

    In the end, the dissent's reasoning ultimately flounders. The dissent concludes that our decision is "persuasive only to the extent that Bush v. Gore is controlling. Neither [our decision or Shelley I], in my view, successfully refutes the compelling reasons supplied by Professor Hasen for refusing to "'take Bush v. Gore's equal protection holding seriously.'" Dis. Op. at 40 (citing Hasen, 29 Fla. St. U. L. Rev. at 380). The dissent, however, fails to mention Professor Hasen's ultimate conclusion that "if Bush v. Gore indeed has precedential value, it clearly should apply to prevent the use of these different voting systems in the same election." Hasen, Bush v. Gore, 29 Fla. St. U. L. Rev. at 395. Without the luxury or the power to decide which Supreme Court decisions we want to follow, we find Professor Hasen's ultimate conclusion, that the reasoning of Bush v. Gore applies here, to be sound.


What to make of all of this? My first reaction (besides being flattered that both the majority and the dissent found something useful in my article) is that the dissent has expressed its point inartfully. When I wrote my article, I did not imagine that lower courts would say flatly that Bush v. Gore is not valid precedent. Instead, I expected that lower courts would read the opinion "Rashomonically" (a term I used in a later article and book), and that some lower courts would read Bush v. Gore as essentially confined to its facts: the use of nonuniform standards in a uniform jurisdiction-wide recount. Others would read it more broadly, and ultimately the Supreme Court would issue a holding limiting the case to its facts. If the dissent had reached the same result by stating that Bush v. Gore should be limited to its facts (or that it mandates rational basis review, as the district court did in the California recall case---citing my own article against me on this point), I think there would have been much less of these fireworks.

On the question of whether Bush v. Gore has overruled Burdick v. Takushi in a number of areas, I think the answer to that is probably yes. I've written about that in After the Storm: The Uses, Normative Implications, and Unintended Consequences of Voting Reform Research in Post-Bush v. Gore Equal Protection Challenges, in Rethinking the Vote (Oxford University Press, Ann Crigler, Marion Just, and Edward McCaffery eds., 2004) and in The California Recall Punch Card Litigation: Why Bush v. Gore Does Not "Suck," in Clicker Politics: Essays on the California Recall 170-81 ( Shaun Bowler and Bruce E. Cain, eds. 2006). I also continue to believe the Supreme Court will ultimately limit Bush v. Gore to its facts. (See the last part of this forthcoming article).

Finally, on the Supreme Court's failure to cite Bush v. Gore: yes, that's true. But none of the cases cited by the dissent involved equal protection issues remotely close to this case. So we can't make too much from that silence. The one case where I had expected the Justices to cite the case was in the dissent from the denial of cert. in the Colorado redistricting case. (See here, note 76). But it will take the Stewart case---or perhaps a case on these onerous new voter identification laws---to make it to the Supreme Court before we learn if Bush v. Gore has any precedential value outside the narrow facts of the Florida 2000 case.

Posted by Rick Hasen at April 21, 2006 02:59 PM