At an earlier stage of Judge Griffin’s attempt to challenge the election results in the contest for the North Carolina Supreme Court seat, I had written that the state court of appeals decision to call into question over 61,000 ballots violated federal due process. The North Carolina Supreme Court ultimately agreed that those ballots were legitimately cast.

That left two much smaller categories of ballots being fought over, including ballots from military and overseas voters. Judge Griffin challenged the counting of those ballots in 6 counties, out of NC’s 100 counties. On this issue, the NC Supreme Court had agreed with Judge Griffin and held those ballots could not be counted unless those voters took additional steps to validate their ballots.

The federal district court has now rejected the North Carolina Supreme Court’s position. The federal court held that treating these military and overseas ballots differently in 6 counties from the rest of the state would violate Bush v. Gore’s Equal Protection holding. That decision is clearly correct, in my view. The identical ballot cannot be treated as a valid vote in one county but treated as invalid in another county in a statewide election. There is no legitimate reason for doing so. Rich Bernstein made that point earlier on this blog.

I want to highlight the application of Bush v. Gore here because some commentators argue that the case has little precedential value, since it has not often been applied in the lower courts or the Supreme Court. First, that overstates the facts; the lower federal courts have applied it a number of times, and the district court decision here relies on those prior applications. Second, I have seen very few contexts — and none in subsequent cases the Supreme Court has heard — in which the principle of Bush v. Gore is legitimately implicated. To say the case has not been applied often is not to say anything meaningful unless there are a significant number of cases in which the principle of Bush v. Gore is implicated. There haven’t been many such cases.

But this NC judicial election case is one of those unusual cases in which that principle is clearly implicated. As I said above, there is no legitimate state interest that would justify treating the same military and overseas ballots differently in different parts of the state. And with the principle of Bush v. Gore directly implicated, the federal district court rightly held that the North Carolina Supreme Court decision could not be implemented because doing so would violate Bush v. Gore. So this case was a good test (if unfortunate, since the entire litigation has created great turmoil over this seat) of whether Bush v. Gore has teeth in the lower courts.