This is a terrific new paper from Michael Morley (forthcoming, George Mason Law Review), though there are aspects I disagree with. Here is the abstract:
The U.S. Supreme Court cautioned in Bush v. Gore that its “consideration is limited to the present circumstances.” Pointing to this admonition, many commentators predicted that, despite the case’s immediate impact in resolving the 2000 presidential election, Bush v. Gore would have little lasting effect on constitutional law. Two decades later, these predictions have proven incorrect.
Bush v. Gore extended Equal Protection principles to the nuts-and-bolts aspects of election administration. The case established a Uniformity Principle that prohibits states from applying “arbitrary and disparate treatment” to different voters participating in the same election. This Article explores the Uniformity Principle’s subsequent development over the ensuing two decades based on a personal examination of all 471 federal and state cases that cited Bush through June 30, 2020.
Courts have applied Bush’s Uniformity Principle in three main contexts. First, they have generally invalidated laws that expressly require or allow materially different treatment of different groups of voters participating in the same election. Second, courts have been almost as skeptical of laws that expressly delegate authority to county or municipal election officials to set substantial voting-related policies. In particular, they have been generally unwilling to allow different jurisdictions within a state to adopt different voting systems with substantially different error rates. Finally, courts have been skeptical of laws that establish vague standards that are subject to a range of conflicting interpretations by local officials in different municipalities or counties. This is especially true in challenges to the constitutional adequacy of states’ ballot-counting standards.
In contrast, courts have been most resistant to applying the Uniformity Principle to selective restrictions on absentee and early voting, administrative “matching” requirements (including laws requiring election officials to determine whether a voter’s information matches official records), and challenges involving the restoration of felons’ voting rights. Citing a conflicting line of Supreme Court precedent from the Civil Rights Era, several courts have held that states are generally free to reduce barriers to voting and expand opportunities to vote, even if they do so selectively, only for particular groups of voters. In the years to come, a compelling need will likely arise for the Court to resolve the apparent conflict between these historic cases and the Bush Uniformity Principle.