September 23, 2005

More of Judge Roberts' Views on Bush v. Gore and Voting Rights

Judge Roberts has provided written answers to Senate Judiciary Committee questions, which Howard Bashman has generously posted to his blog. Most interesting from the perspective of election law is Judge Roberts' answers to two questions related to Bush v. Gore (on pages 16 and 23 of this document). Most significantly, Judge Roberts views the case as having some precedential value:

    While it is true that the precise facts presented in Bush v. Gore are not likely to come before the Court again, it is not at all improbable that other election disputes will. While the Court in Bush v. Gore stated that its "consideration is limited to the present circumstances," I believe that statement was not meant to deprive the decision of all precedential weight but, rather, to make clear that the precise facts of the case were unique. And while it is undoubtedly true that "the problem of equal protection in election processes generally presents many complexities," the equal protection principles at issue in Bush v. Gore may be implicated in future cases.

See also page 22 of this document, noting Judge Roberts' view that Baker v. Carr was correctly decided; page 38 of this document, in which Judge Roberts responds to written questions from Sen. Kennedy on the right to vote; and page 8 of this document with a brief answer related to the Voting Rights Act. There are also statements throughout about Rice v. Cayetano, a case Judge Roberts' lost as a litigant defending Hawaii's voting rules that allowed only Native Hawaiians to vote in some circumstances.

Posted by Rick Hasen at September 23, 2005 08:41 AM