Bush v Gore -- the upside

It seems that the murky, ideological, partisan, and above all, one-time-only nature of the 5-4 decision that changed history eight years ago has new life to it. And that may not be a bad thing.

“Bush v. Gore introduced an important idea,” Professor Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”

Bush v. Gore was, for instance, unapologetically at the heart of a unanimous decision last month from the United States Court of Appeals for the Sixth Circuit, in Cincinnati, allowing a comprehensive challenge to Ohio voting systems to move forward. The three-judge panel acknowledged the Supreme Court’s admonition about the limited precedential value of Bush v. Gore. Nonetheless, the panel said, “we find it relevant here.”

What Bush v. Gore means, the panel said, quoting from the decision itself, is that once a state grants the right to vote on equal terms, it may not “by later arbitrary and disparate treatment, value one person’s vote over that of another.” Forcing people in some parts of the state to wait many hours to vote as a consequence of the arbitrary allocation of voting machines, for instance, would violate the core principle in Bush v. Gore, the panel said.

It is possible, of course, to read Bush v. Gore more narrowly than that. The case did, after all, emerge from authentically peculiar circumstances. It may be that the decision means only something like this: A court-supervised statewide recount violates equal protection guarantees when it treats similar ballots differently by instructing local officials to use new and insufficiently specified standards.

But even versions of that narrower reading are turning out to have a practical impact.

Bush v. Gore was front and center in the briefs and arguments last week in the Minnesota Supreme Court’s consideration of the recount litigation in the Senate race between Norm Coleman and Al Franken. The candidates’ briefs cited the case some 20 times, arguing in earnest detail about how the Supreme Court’s understanding of the role of equal protection in election administration applied in Minnesota.

“Bush v. Gore has a future,” said Edward B. Foley, an election-law specialist at Ohio State. “We’re now starting to see it. There is a sense, eight years later, that some of the initial reaction was an overreaction.”