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Four years ago, the conservative majority on the U.S. Supreme Court tried to make its Bush v. Gore ruling a one-ride-only ticket. But now the high court’s hugely controversial decision handing the 2000 presidential election to George W. Bush has returned to haunt Florida election law. Ruling in Friedman v. Snipes on Nov. 10, U.S. District Judge Alan Gold invoked the Supreme Court decision in denying a request by the ACLU of Florida for Miami-Dade and Broward counties to count domestic absentee ballots postmarked by Election Day but received after the 7 p.m. deadline. The Friedman decision shows that the justices’ wish to make their hastily crafted opinion just as quickly vanish has not come to pass. It’s the latest in a line of cases around the country that are deepening the application of Bush v. Gore‘s equal-protection analysis to election law and other legal areas. Given the disparate rules and procedures within states and even within counties, this type of 14th Amendment analysis could pose a growing challenge for elections officials in Florida and nationally. Gold “ignored the Supreme Court’s command that its decision was a one-off and used it to demand the sort of statewide uniformity that previously had never been required,” said Robert Jarvis, a constitutional law professor at Nova Southeastern University law school who edited a book on the 2000 presidential election legal battles. Thomas Spencer, a Coral Gables, Fla., lawyer who is special counsel to the Republican Party of Florida, agreed that Gold’s ruling shows Bush v. Gore isn’t going away as a key election law case. But, Spencer argued, Gold recognized that the Legislature and the state “have the right to approach election systems in ways that are most convenient for counties and subdivisions of the state, and that doesn’t necessarily rise to an equal protection problem.” The ACLU argued in the suit that a group of domestic absentee voters should have the same longer counting deadline enjoyed by overseas absentee voters. But Judge Gold cited Bush v. Gore in holding that to count late-received domestic absentee votes in Miami-Dade and Broward counties and not those in other Florida counties would violate the U.S. Constitution’s equal protection clause. The ACLU filed the Friedman lawsuit late on Election Day on behalf of three plaintiffs against county election supervisors in Miami-Dade and Broward counties. The suit claimed that the plaintiffs — two students away at college and one long-time Broward resident who was temporarily out of state — did not receive their absentee ballots, or else received them too late to submit in a timely fashion to meet the 7 p.m. statutory deadline for receipt of domestic absentee ballots. These plaintiffs were hardly the only ones who wanted to vote by absentee ballot but couldn’t. Thousands of voters around the state either never received absentee ballots from election officials or received them too late to return them by the Election Day deadline. In Broward alone, election authorities acknowledged losing track of nearly 15,000 absentee ballots. At the time the Friedman suit was filed, it was still thought that the presidential election in Florida between President Bush and Sen. John Kerry was close, and that having more absentee ballots counted could make a difference in the outcome. The ACLU of Florida sought a preliminary injunction requiring that the domestic absentee ballots be counted under a 10-day deadline extension in state law normally used for overseas absentee ballots. The deadline for receiving overseas ballots was Nov. 12. The ACLU initially sought statewide relief, since state law sets the deadline for receiving absentee ballots. The suit originally named Florida Secretary of State Glenda Hood along with Miami-Dade Supervisor of Elections Constance A. Kaplan and Broward Supervisor of Elections Brenda Snipes. But the plaintiffs dropped Hood as a defendant and focused just on Miami-Dade and Broward, citing the suit’s “emergency” nature. It sought to obtain specific relief for the plaintiffs, who telephoned the ACLU for help on Election Day. In an amended complaint, they sought a permanent injunction against Hood, ordering her to establish uniform rules for all similarly situated absentee voters. ONE MAN, ONE VOTE In his ruling, Gold, a 1997 Clinton appointee, denied the motion. Gold did not find sufficient evidence that any of the ACLU’s three claims would show a “substantial likelihood of success on the merits of any of their claims,” the first of four legal tests for issuing a preliminary injunction. The claims relied on the Voting Rights Act and the First and 14th Amendments of the U.S. Constitution. After initially pursuing an appeal, the ACLU voluntarily dismissed the case last week. Randall Marshall, legal director of the ACLU of Florida, said the group wants to focus on finding remedies for other alleged absentee ballot problems throughout the state. “We think there is still a serious problem in Florida,” Marshall said. “The suit we brought was narrowly focused, but [it] didn’t seem amenable to figuring out what was wrong across the board.” In his decision denying the request to apply the overseas deadline to domestic absentee ballots, Gold cited, among other grounds, the Supreme Court’s equal protection argument in Bush v. Gore. That ruling was widely criticized by both conservative and liberal legal scholars for judicial overreach. Bush v. Gore said that the 14th Amendment right to equal protection requires uniform — and not “arbitrary or disparate”– standards to assure the equal and fair treatment of voters’ intent. Prior to that ruling, federal courts had been reluctant to intervene in the conduct of state elections or to accept equal protection arguments challenging them. Despite the widely publicized problems experienced by Broward and Miami-Dade voters in obtaining absentee ballots in time, Gold wrote that “plaintiffs’ requested relief would result in the very granting of greater voter strength of one group over another which the Supreme Court found violated the one-man, one vote principle which is the basis of our representative government.” Gold also chided the plaintiffs for not seeking absentee ballots sooner, even though they applied within the time limits specified by state law. “All three plaintiffs could have requested absentee ballots before late October, just days before the election,” he wrote. The judge also offered an excuse for the failure of Broward and Miami-Dade election officials to mail out absentee ballots in time. Election officials were “processing thousands of absentee ballot requests, running early voting sites and attempting to prepare,” he wrote. DEADLINE ‘REASONABLE’ Gold’s citation of Bush v. Gore was notable because the Supreme Court majority in Bush v. Gore sought — to the bafflement of many constitutional experts — to limit the application of its equal protection holding to the 2000 presidential election. “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes involves many complexities,” the high court said in its unsigned 5-4 decision. While Bush v. Gore has been cited in other election-related cases from California to Michigan, the ACLU’s Marshall argued that the facts in the Friedman case were very different from those in the 2000 presidential election dispute. In Bush v. Gore, the dispute centered on the lack of a uniform statewide standard in Florida for what constituted a “legal vote” in conducting manual recounts of punch-card ballots. Making the matter particularly critical, the recount had the potential to determine the outcome of the presidential election, and a strict deadline had to be met to decide a winner. But in Friedman, there was no issue of whether the absentee votes were legal, and no immediate reason to think their legal outcome would affect the election outcome. The issue raised by the Friedman plaintiffs was whether late-received domestic absentee ballots could be deemed “similarly situated” to overseas absentee ballots in order to be counted. “We weren’t seeking a challenge to the outcome, just to have these plaintiffs’ votes counted,” Marshall said. “We didn’t think it presented a Bush v. Gore problem.” Despite the differences, Judge Gold wrote that pursuing relief only in Miami-Dade and Broward invited an equal protection analysis under Bush v. Gore. “If plaintiffs were to succeed on their claims, the late received ballots of absentee voters in every other Florida county will not be included in the election totals … [which] would result in the denial of the equal protection of the laws,” he said. Furthermore, the 7 p.m. deadline was “reasonable” and only imposed a “light restriction” on voters. Gold also cited Harris v. Florida Elections Canvassing Comm., in which a group of voters lost a challenge to the decision by state and county election officials in the 2000 election to grant a deadline extension for overseas absentee voters. Gold echoed Harris, a Northern District of Florida case, in saying that the justifications granting the extension to overseas absentee voters did not to apply to domestic absentee voters. EXTENDS FEDERAL POWER Despite the Supreme Court majority’s desire to discourage courts from using Bush v. Gore as a precedent in election cases, the lower courts simply can’t ignore Supreme Court precedents that are obviously on point, experts say. And Gold didn’t. “Gold wrote a sober decision and tried to be even-handed, but his hands were tied,” said Nova Southeastern’s Jarvis. He predicted that Gold would have been reversed on appeal if he’d ignored the Supreme Court ruling and granted the plaintiffs the relief they sought. Another legal expert said that Gold cited Bush v. Gore more as a footnote than as the central basis of his decision. The main thrust of Gold’s opinion was that the plaintiffs did not meet the first test for obtaining a preliminary injunction. Gold “uses more of a standard equal protection argument than anything specifically from Bush v. Gore,” said Clifford Jones, a University of Florida law professor who teaches election law. “The only similarity is that it’s an election case.” That said, the growing citation of Bush v. Gore‘s equal protection analysis introduces a potentially far-reaching new element into Florida election law. For one thing, that ruling requires not just uniformity of election rules and procedures within each county but also uniformity between counties, thus increasing what is required of government in treating its citizens equally. “[ Bush v. Gore] extends federal power and takes away what had always been understood to be a core state value — that states run the elections,” Jarvis said. “It [also] plays into the hands of whichever party feels it benefits by not having votes counted.” The GOP’s Spencer argued that while he would like to see the Florida Legislature make election procedures more uniform statewide, plaintiffs challenging election procedures or results ultimately will not be successful in relying on Bush v. Gore‘s equal protection analysis. “You can’t use Bush v. Gore to attack every difference in every system in every county,” he said. “There is a rational reason for differences and distinctions, and those are solely within the province of the Legislature and the Secretary of State to make.” Still, Gold’s ruling illustrates that it was unrealistic for the Supreme Court majority to expect Bush v. Gore to be good for one ride only. “Like Dred Scott or Brown v. Board of Education, the Supreme Court was probably just crafting an immediate solution to the momentary, nationwide crisis,” Jarvis said. “But now the chickens have come home to roost.” Law editor Harris Meyer contributed to this report.

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