Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Washington – An army of “lawyers with matches,” in the words of one legal scholar, may well be the clearest legal legacy of the Supreme Court’s divided and divisive Bush v. Gore ruling four years ago. Less clear, despite numerous election challenges this year, is whether the ruling is the one-day-only-ticket that the justices in the majority hoped it would be. Election law scholars Richard Hasen of Loyola Law School, Los Angeles and Daniel Tokaji of Ohio State University Moritz College of Law marvel at the explosive evolution of election law as political strategy in the wake of Bush v. Gore, 531 U.S. 98 (2000). The two men – whose election Web logs or ‘blogs’ are a must-read for anyone trying to keep pace with the thicket of 2004 election lawsuits – and colleagues throughout the country crafted a number of scenarios based on those lawsuits that could prompt the Supreme Court once again to enter a disputed presidential election. But always, they cautioned, it would depend on the circumstances. “Except for perhaps those clerking on the court at the time, no one really knows for sure whether what happened four years ago affects what the Supreme Court does now,” said Tokaji. “That said, I would expect the Supreme Court to be very reluctant to decide yet another election. In the eyes of many observers, Bush v. Gore itself was an illegitimate intrusion into politics. The perception the court is acting in a partisan political manner would be overwhelming were the court to intrude again, at least if it did so on the side of George W. Bush.” But other election law scholars, like Roy Schotland of Georgetown University Law Center, see little future reluctance, particularly by the current court. “There were an awful lot of us saying we could not conceive of the court taking the case they did in 2000,” he recalled. “But now that they did, how do they not this time, if a case presents itself?” Constitutional law scholar Thomas Baker of Florida International University College of Law agrees, saying, “You don’t have to read [an October article about Bush v. Gore in] Vanity Fair to realize there are at least four votes to grant cert in these cases. I do think a Bush v. Gore sequel is possible in the exercise of the court’s discretion. This Supreme Court will come to the rescue whether the election wants to be rescued or not.” Remembering the chad Bush v. Gore arose out of a limited manual recount of Florida votes because of the close margin of votes between the two presidential candidates. County canvassing boards disagreed on whether and how to count hanging or dimpled chads – a piece of the perforated ballot card in a punch-card voting system. The result was different evaluation of ballots not only from county to county, but also within a county from one recount team to another. The high court found an equal protection violation, saying that “the problem inheres in the absence of specific standards to ensure its equal application.” Without such standards, equal weight was not given to each vote, according to the court. The majority also said, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” “The legacy of Bush v. Gore has been extremely limited within the court itself,” said Jamie Raskin of American University Washington College of Law, noting the absence of any subsequent high court decisions relying upon it. “There have been some lower court opinions citing it, but many of them ironically. Some have questioned the logic of saying you can have a legal decision that doesn’t have any precedential value.” Five lawsuits But some lower courts also have applied it. After the ruling, the American Civil Liberties Union (ACLU) filed five lawsuits in five states challenging substandard voting machines. Four of the lawsuits settled, said Ohio State’s Tokaji, adding that the Ohio suit is scheduled for trial after Nov. 2. “The principal type of cases in which we’ve seen [ Bush v. Gore] used is in cases challenging unreliable voting equipment,” he explained. “ Bush v. Gore has had an impact. It certainly led to the settlements of those four cases.” The high court decision also reared its head in the controversial California gubernatorial recall in 2003. The ACLU filed a suit in federal court arguing that the selective use of punch card voting machines in only some California counties violated the equal protection clause and Section 2 of the Voting Rights Act. The district court rejected the equal protection claim, noting, among other points, that “There are many reasons to believe that the Bush Court’s analysis was limited to its unique context.” But a three-judge panel of the 9th U.S. Circuit Court of Appeals reversed – only to be reversed subsequently by the en banc court – after finding that the ACLU’s equal protection claim was “almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause.” Bush v. Gore has made a reappearance in the current pre-election litigation, noted Loyola’s Hasen. For example, a federal district court in Florida last week looked to that decision in rejecting an equal protection claim in a suit challenging the touch-screen paperless voting systems used in 15 Florida counties that lack a manual recount procedure. A recount procedure is available in the remaining 52 counties using an optical scan voting system. Wexler v. LePore, No. 04-80216. “Could it play a role in post-election litigation?” asked Hasen. “It certainly could, but even if there is post-election litigation, it depends on the nature of the issue.” If the claim is one of voter fraud or some kind of statutory dispute, he said, it is not at all clear that Bush v. Gore would play a role in the resolution of the claim. The new ‘chad’ In the post-2004 election world, Tokaji said he can foresee the possibility of cases being filed that would attract the Supreme Court’s attention. The voting equipment cases, he said, are obvious ones because, for example, there is clear statistical evidence that the use of punch-card ballots results in the denial of votes and has a disproportionate impact on minority votes. “In a lot of ways, there might be other cases that are a more natural fit for Bush v. Gore,” he added. “That decision is about the absence of clear rules for adjudicating election disputes, which gives rise to an equal protection claim. We may see lawsuits where substantial discretion is accorded election officials at the county level to implement the requirements of the Help America Vote Act,” Tokaji said. For example, he said, if a state fails to give clear guidance on the counting of provisional ballots authorized by that act, known as HAVA. Congress enacted HAVA two years ago to improve the administration of elections. Among other requirements, HAVA mandates that states allow voters who believe they are eligible to vote but whose names are not on the voter rolls to cast a “provisional ballot.” Election officials would determine later whether the ballots should be counted. But HAVA is not clear on whether a voter who cases a vote in the wrong precinct – but the right county – is entitled to have the vote counted. Courts in at least five states have been handling suits related to the provisional ballot requirement. And, since those ballots may number in the hundreds of thousands, they could make the difference in a close vote in a battleground state. A post-election lawsuit could delay the outcome of the 2004 election, according to election law experts, and draw the Supreme Court into the dispute. “There is potential for circuit splits on provisional balloting but I don’t see one yet,” said Tokaji. Courts have found that HAVA guarantees the right to cast a provisional ballot, but has no requirement that it be counted, he said. “In effect, Congress has created a right to cast a dummy ballot,” he said. “I can’t say that’s inconsistent with the text of the statute. It’s arguably consistent, but it doesn’t make a lot of sense.” The second most likely dispute to land at the Supreme Court’s door would be a challenge to Colorado’s Amendment 36, if it is adopted by voters on Nov. 2. Amendment 36 mandates proportional allocation, instead of winner takes all – of presidential electors. The candidate who wins the popular vote majority but feels cheated out of his winner-take-all share of the electoral votes will undoubtedly go to court, predicted American’s Raskin. “They will likely make three arguments: first, under Article II of the Constitution, only the state legislature can change the mode of allocating presidential electors,” said Raskin. “This will take us right back to Bush v. Gore.” Article II adoption The Article II argument was adopted by the high court’s three most conservative members in Bush v. Gore. Chief Justice William H. Rehnquist and justices Antonin Scalia and Clarence Thomas said the Florida Supreme Court’s recount rules made new law and usurped the right of the state legislature to set rules for choosing electors. The amendment states that it is effective for the current election. Raskin said that this provision raises “sticky issues” of constitutionality of federal and state statutes. And, he added, there also may be “some free-floating equal protection or due process” claim involving the change in the mode of selecting electors in an actual election. “That’s a line of argumentation that the Bush v. Gore majority would have a hard time not entertaining,” he said. “Everyone is concerned about his or her legacy, so I imagine they don’t fancy another court fight, but the conservatives would probably do it again.” But constitutional law scholar Douglas Kmiec of Pepperdine University School of Law said that there is nothing in the precise holding of Bush v. Gore that should invite post-election litigation. The decision, he said, dealt with the “narrow and extraordinary” context of the Florida recount. Federal and state courts should stay out of election disputes absent unconstitutional intentional discrimination or a disregard of federal or state election law, he added. Judicial decisions can play a constitutional role in making clear what the rules are, said Tokaji, but he added, “It’s far better to clarify rules ahead of time than to clean up the mess afterward.” Coyle’s e-mail address is [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.