Misunderstanding Bush v. Gore

George Will is a very smart individual, but he completely misunderstands the ramifications of Bush v. Gore in his latest column. First of all, the Supreme Court specifically stated that Bush v. Gore should not be used as a general precedent as Will argues. From the decision:

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. (Emphasis mine)

And indeed, the logic behind Bush v. Gore is quite specific. The substantive point that the Supreme Court made is based on the concept that the Florida Supreme Court does not have the right to change electoral law in the middle of an election as it would violate the Equal Protection Clause. The problem with citing Bush v. Gore as some dramtic new precedent for this is that it really is not. In fact, the groundwork for the decisions of Bush v. Gore were laid 40 years ago with the civil rights movement.

The per curiam decision in the case of Bush v. Gore specifically cites two cases which offer precedent for the decision on the grounds of the Equal Protection Clause. The first case is Harper v. Virginia Board of Elections 383 U.S. 663 (1966) in which the Supreme Court determined the following:

[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.

Determinations of franchise are to be made by the state legislatures under the Constitution (within the limits of the Equal Protection Clause of course). So Minnesota can have same-day voter registration while South Dakota does not and such claims do not as of yet constitute a violation of Equal Protection. However, once those determinations are made it is not permissable for the state to alter those procedures in an unequal manner. In Reynolds v. Sims, 377 U.S. 533 (1964) the Court found the following:

Weighting votes differently according to where citizens happen to reside is discriminatory (under the Equal Protection clause).

Indeed, that is exactly what the Florida Supreme Court’s decision would have done. A partial recount would have violated the precedent already established in Reynolds v. Sims. Gore wanted the Florida Supreme Court to count only the under and overvotes in a specific set of (Democratic leaning) counties in an effort to cherry pick votes for his side. Under the precedent of Reynolds v. Sims this is a violation of the Equal Protection Clause.

hat ironic that had Gore gotten his way Bush would have won anyway by a larger margin than the final certification.

Had Bush v. Gore been about some other race, it would barely be a blip in US case law. However, due to the political charge behind it, the decision made in this case has been stricken from use as precedent when the internal logic behind it is rather sound.

In the end, Bush was legitimately elected President under the law, even if there are those who still stubbornly refuse to acknowledge it. The decision of the Court is hardly as destructive as Will would like to argue, especially given the Court’s specific exhortations that the circumstances described in the case are specific only to the issue to be decided and should not be interpreted as precedent. There are issues with equal protection and provisional ballots, but again a statewide standard for dealing with these ballots set in advance of the election could easily negate any Equal Protection issues.

Will also argues that had the election gone forward without Bush v. Gore that the election would have been kicked to the House and Bush would have been elected anyway. This is perhaps true, but the Supreme Court could not have avoided the issue since it clearly deals with salient issues of Constitutional Law. A denial of certiorari in this case would have more than likely fanned the flames, and it’s hard to argue that an election decided by the House after a contentious recount would be any less controversial than an election decided on the basis of Bush v. Gore. Four years later, the specter of some radical change to our electorate based on Bush v. Gore is unlikely – the precedents for such decisions were made long before.

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