Bush v. Gore Recounted

When the Supreme Court issued its landmark ruling in Bush v. Gore (531 US 98 [2000]), it generated a flood of controversy.  Perhaps most unusual was the language in the Court’s per curiam opinion that restricted the decision to the case at hand: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”[1]

Perhaps not surprisingly, the Court’s decision has failed to follow the Court’s plan (hope?) that the case would be a one-shot decision that would fade into obscurity.   Although the Supreme Court has not cited it since its publication,[2] that has not prevented lawyers for plaintiffs and lower courts from trying to use the decision as a basis for arguments challenging the process and outcomes of state elections.

The most recent attempt to use the case has been recounted (no pun intended) by Robert Barnes of the Washington Post.[3]  Barnes reports that Tracie Hunter, a Democratic candidate who ran for election to the Hamilton County juvenile court in Ohio in 2010, is challenging the vote count in her election. Hunter, a Democrat, lost by 23 votes to her Republican rival, John Williams, according to the official results.  Hunter and the Democratic Party are challenging the results and are relying in part on Bush v. Gore’s principle: “that ‘having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.’”

The facts are complicated—Ohio law invalidates the ballots of voters who cast their votes in precincts where they are not registered, unless the mismatched vote is a result of an error made by the election worker.  In Hamilton County, these mismatched votes are counted if they are made at election headquarters, since it seems obvious that the election worker must have issued the incorrect ballot.  However, mismatched votes are not counted if they are cast at polling places.  And the problem is that in Hamilton County, there are a lot of polling places that serve multiple precincts.  This practice can generate a fair amount of voter and worker confusion.  Hunter’s challenge to include ballots that had not been counted because of voter/precinct mismatch went through the federal courts to the Supreme Court, where it was sent back to the district court.

The trial in federal district court revealed that there were several issues for poll workers: e.g., confusion over the law, where to send voters to be sure that they cast their ballots in the correct precincts, and uncertainty over which precinct voters belonged to.  District Judge Susan Dlott ordered 300 excluded ballots to be included in the count.  Williams’ margin of victory was 23 votes out of a total vote count of approximately 290,000 votes.

The Hamilton County Board, split evenly between Democrats and Republicans, deadlocked on whether to appeal the decision; the deciding vote to appeal was cast by the Republican Secretary of State, John Husted.  He justified his decision thusly: “I cannot and will not back down when it comes to our state’s right to administer elections….”

And that is the interesting thing about the legacy of Bush v. Gore.   As reflected in Husted’s comments, the application of the principle of Equal Protection to the states’ election processes has the potential to place those state election processes under federal scrutiny to ensure that all ballots are cast and counted equally.  The string of court cases challenging the impact of voting mechanisms that might result in counting errors (the use of punch card ballots, e.g.) or longstanding counting procedures that exclude some ballots from the count, may result in more federal intervention into state election processes. And as the electorate becomes more closely divided along partisan lines and small changes in vote count can make large differences in election outcomes, we might expect that the principle of Bush v. Gore becomes more of an issue in future election challenges.


[1] Quoted from Epstein and Walker, 186

[2]  See Jeffrey Toobin, “Precedent and Prologue,” The New Yorker, Dec. 6 2010, http://www.newyorker.com/talk/comment/2010/12/06/101206taco_talk_toobin, accessed Feb. 29 2012.

[3] Robert Barnes, “Will Bush v. Gore make an election-year return?” Washington Post, Feb. 26 2012, accessed Feb. 28 2012.

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