Back in 2001, I discussed in a law review article the possibility that Bush v. Gore would in fact have no precedential value. That discussion formed the basis for a very heated debate on the Sixth Circuit in a case involving a challenge to Ohio’s use of punch card voting machines in only some Ohio jurisdictions. The question of Bush v. Gore‘s precedential value continues to be debated; see for example, this excellent piece by Chad Flanders.
So it is notable that the Coleman-Franken opinion flirts with the idea that Bush v. Gore has no precedential value at all:
- Contestants allege the adoption of different procedures by local election officials violates the Equal Protection Clauses of the United States and Minnesota Constitutions. Contestants rely exclusively on Bush v. Gore in support of their equal protection argument.
The United States Supreme Court expressly limited the potential precedential reach of its opinion in Bush. See Bush (“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”) See also Austin v. Wilkinson, 502 F.Supp.2d 660, 671 n.6 (N.D. Ohio 2006) (characterizing Bush as a “notable execption” to the general rule that “when the Supreme Court rules, it intends that its words will guide the future actions of those before and not before the court. That is, it will create precedent[.].”); Spears v. Stewart, 283 F.3d 992, 997 (9th Cir. 2002) (comparing majority opinion to the Bush decision thusly: “good for this case and this case only[.]”).
The Coleman-Franken court then drops the idea, and goes on to treat Bush v. Gore as valid precedent. It is interesting that the court saw fit to include this discussion in any event.