Understanding and Complying with Bush v Gore

Appendix C-

Understanding and Complying with Bush v. Gore

Professor Nate Persily
Brennan Center for Justice at NYU; University of Pennsylvania Law School
Npersily@stanfordalumni.org

I. The State of the Law Before Bush v. Gore

A. Voting as fundamental right - Harper v. Virginia Board of Elections

B. One person, one vote - Reynolds v. Sims, Gray v. Sanders, Moore v. Ogilvie

C. Race cases

1. Discriminatory intent plus effect - White v. Regester, Mobile v. Bolden

2. Use of race as the predominant factor - Shaw v. Reno

D. Party cases

1. Discrimination against minor parties in ballot access - Williams v. Rhodes

2. Partisan gerrymandering - Davis v. Bandemer

E. "Fundamental Fairness" cases

1. "Changing the rules in the middle of the game" - Roe v. Alabama (11^th Cir. 1995)

2. Detrimental reliance - Griffin v. Burns (1^st Cir. 1978)

II. The Holding and Reasoning of Bush v. Gore

A. Challenge in interpreting the holding arises from the need to reconcile two passages:

1. "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."

2. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

B. Why the Florida Supreme Court's order violated Equal Protection

1. Failure to formulate specific, uniform rules - "intent of the voter" inadequate when more specific standards are available

2. Inclusion of complete recounts only from certain counties (Broward and Palm Beach)

a. Different counties used different standards for a legal vote

b. Full recounts (of all ballots - overvotes, undervotes, and votes) in these counties but not in others

3. Inclusion of the partial recount from Miami-Dade - suggesting that Florida Court would allow an incomplete recount

4. Deficiencies in process of conducting the recount

a. Ad hoc teams of judges with no training in handling or counting ballots

b. Prohibitions on objections to recount

C. Article II, section 1:

"Each State shall appoint [electors], in such Manner as the Legislature thereof may direct"

1. Source of law - central question is whether recount procedures were mandated by legislature

2. Bush v. Palm Beach Canvassing Board - question of whether Florida Court's decision was based on state constitution versus state statute

3. Bush v. Gore (3 Justices) -

Judiciary was legislating, not merely interpreting state law by usurping authority from the Secretary of State, extending the certification deadline, mandating the recount of undervotes, and most importantly, jeopardizing the legislative wish of taking advantage of the safe harbor provisions of 3 USC § 5.

III. Principles to Guide Electoral Reform in the Wake of Bush v. Gore

A. Uniformity - Avoid intrajurisdiction variation as much as possible in vote counting procedures, ballot access, ballot equipment, and election administration.

B. Specificity - If no reason exists for failing to enact specific standards, vague standards may violate equal protection.

C. Comprehensiveness - Doing the best you can in the time allotted may not be enough.

D. Rigidity - Rules fixed before the election cannot later be changed so as to affect the outcome of the election.

IV. Conclusion and caveat - Reach of Bush v. Gore precedent could be anything from insubstantial to transformative. Hard cases make for bad law.