I have written this draft for a symposium issue of the Florida State University Law Review on 25 Years after Bush v. Gore. Here is the abstract:

The Supreme Court framed its holding in its 2000 case, Bush v. Gore, as fulfilling its “unsought responsibility” to protect voters’ equal protection rights by stopping a potentially outcome-determinative recounting of Florida ballots in the disputed 2000 presidential election. Yet the Court to this day has not relied upon the case’s equal protection holding as precedent, leading some to call it a “one way ticket” to help Bush’s election.  In 2023, a Supreme Court majority finally cited Bush as a worthy precedent to apply in future cases. It turned out the ticket was good for a different train: the conservative Supreme Court majority in Moore v. Harper embraced not Bush’s equal protection holding as contained in its per curiam majority opinion, but instead an Article II-based claim in Chief Justice William Rehnquist’s concurrence. Rehnquist advanced what has come to be known as the “independent state legislature theory” contending that the problem with the recount was judicial usurpation of the power of the Florida legislature to set recount rules for the presidential election. Bush v. Gore’s ironic legacy is that a decision dressed up as one protecting voters’ equal protection rights instead has advanced a bogus legal theory for federal courts to use to subvert popular will. ISLT reserves for the Supreme Court a license to overturn democratically-conducted presidential and congressional elections by second-guessing state court interpretations of state constitutional provisions protecting the right to vote and state statutes governing the electoral process. It empowers legislatures over voters in choosing the President. Unless the Supreme Court overturns or limits Moore, ISLT will hang like a Sword of Damocles over the heads of state courts as they contemplate whether to read their state constitutions in voter-protective ways and to apply voter protective methods of statutory interpretation.

Part I briefly describes how—despite advances in voting technology and increased voting opportunities since 2000—Bush v. Gore’s equal protection holding has mostly been a dead end, and federal courts more generally have retreated from protecting voting rights in the last quarter century. It includes an empirical analysis showing election litigation continuing to grow, triple the rate since before Bush v. Gore and with a 14.3 percent increase in 2024 election season litigation compared to the 2020 season. Part II shows how the resurrection of Rehnquist’s Bush ISLT concurrence in Moore is anti-voter and anti-democratic. It is already deterring state court protection of voting rights, turning the supposed voter-protective holding of Bush on its head. Part III argues that Bush demonstrates that an advanced democracy should not rely upon the whims of the United States Supreme Court or optimistic readings of snippets of constitutional text to protect voters’ rights. What is needed is an affirmative right to vote in the U.S. Constitution, which would be a more fitting legacy to a case that exposed fundamental flaws with American election administration and purported to find in the Constitution protection for voters’ equal rights.