Analysis: Bush v. Gore lives
This is another in a continuing series on the impact of Supreme Court decisions on later cases. The rulng discussed here, issued Friday by the Sixth Circuit Court in Cincinnati, is the most extensive treatment so far by a federal appellate court on the meaning of the Supreme Court’s abidingly controversial decision on Dec. 12, 2000, in Bush v. Gore, a 5-4 ruling that ended the presidential election contest in a way that meant victory for George W. Bush. (Thanks to Howard Bashman of How Appealing blog for the alert to this decision.)
A week from Tuesday, the voters in Ohio go to the polls for a primary election with a host of federal, state and local offices on the ballot. That may also be the day that a significant ruling by the Sixth Circuit Court loses much if not all of its continuing practical effect. That would be a missed opportunity, since the case appears to be an excellent vehicle for testing the continuing significance, if there is any, legally speaking, of Bush v. Gore.
The decision, relying heaviliy though not exclusiveliy on Bush v. Gore, can be found here. It is Stewart v. Blackwell, Circuit docket 05-3044. It declared unconstitutional the use of different voting technology in different Ohio counties, because in some counties voters had less chance of having their votes counted. (At issue were punch-card or optical scanning systems that do not give voters a chance to find mistakes they made on their ballot, and correct them before casting their vote.) As a result of that technology, perhaps 55,000 presidential votes were lost in 2000, the Circuit Court found, citing what it called a conservative estimate. That, the Circuit Court said in a 2-1 ruling, violated the equal protection rights of voters in the disfavored counties.
“The loss of so many votes,” the majority commented, “because of the continued use of machines that the state admits are substandard is arbitrary and cannot be considered rational in light of so-claimed, but unsupported, cost concerns.” The use of the challenged machinery, it found, was a violation of the 14th Amendment, whether reviewed under strct scrutiny or a rational basis standard.
State officials in Ohio now insist that at the May 2 primary, none of the challenged technology will be in use. All 88 counties in the state, according to the office of Secretary of State J. Kenneth Blackwell, will be using equipment that complies with a federal law — the Help American Vote Act of 2002 — and supposedly could eliminate the situation that led to the Circuit Court ruling.
The state’s lawyers had contended that the state’s decision to comply with the 2002 Act (and thus remain eligible for federal funds) made the case moot. All three judges on the Circuit Court panel rejected that argument, saying that “Ohio’s voluntary compliance with the Act is just that — voluntary. The state, should it wish to opt out of the Act’s demands, may do so at any time and the only penalty is the return of a prorated amount of the federal funds in proportion to the precints not converted to accepted technology. This is not the type of voluntary action that moots a case…”
Even if the case is not moot as a result of the state’s switch in technology, it might also be set aside if the state of Ohio seeks and obtains en banc review. Thus, there is real uncertainty whether the case ever would get to the Supreme Court in the form decided by the panel. Only the Supreme Court can answer a fundamental question about Bush v. Gore: did that ruling change the constitutional law of voter equality, with wide impact on elections, or was it a one-day, one-case ruling that has no effect as precedent?
The continuing significance of Bush v. Gore produced a lively disagreement in the Sixth Circuit. The majority, in an opinion by Circuit Judge Boyce F. Martin, Jr., joined by Circuit Judge R. Guy Cole, Jr., concluded that the 2000 decision created a precedent binding on lower courts. “The Supreme Court does not issue non-precedent opinions,” Martin wrote.”Even if the Court was playing fast and loose with the law, we, as an inferior court, are not in a position to disregard Supreme Court precedent because we think they got it wrong….Whatever else Bush v. Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.”
Dissenting Circuit Judge Ronald Lee Gilman wrote: “I believe that we should heed the Supreme Court’s own warning and limit the reach of Bush v. Gore to the pecular and extraordinary facts of that case…The majority has chosen a different path, one that unjustifiably expands Bush v. Gore into a landmark precedent designed to fundamentally transform federal election law.” The ruling, Gilman said, is of doubtful precedential value. (For those court observers who believe that the political affiliation of the president who named a federal judge is relevant in analyzing the judge’s decisions, it is worth pointing out that all three judges on the Circut Court panel were named by Democrats — Martin by President Jimmy Carter and Cole and Gilman by President Bill Clinton.)
The Supreme Court majority did say, as Gilman notes, the following: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” But Gilman goes further, spurred on by a 2001 law review article by Richard Hasen, an election law expert at Loyola Law School in Los Angeles. Like Hasen, who cited not only the limiting language in the opinion but other considerations, Gilman notes that Hasen also criticized the rulnig because of “the lack of serioousness with which the Court undertook its own analysis,” and the inconsistency between the 2000 ruling and the judicial views of the majority on other election law issues.
But the Sixth Circuit majority judges, too, found something in Hasen’s law review article to support their view. They noted that Hasen had said that, if Bush v. Gore did have precedential value, it should apply to prevent the use of different voting systems in the same election. Thus, Martin wrote, if Bush v. Gore must be followed, and the majority concluded it must, “it would dictate the result we reach here.”
(Hasen’s law review article is Bush v. Gore and the Future of Equal Protection Law in Elections, published in 2001 at 29 Florida State University Law Review 377. Hasen’s response this weekend to the Sixth Circuit ruling, and its discussion of his views, can be found here.)