A revival of Bush v. Gore?
on Apr 11, 2011 at 2:27 pm
NOTE:Â Justice Elena Kagan, who handles emergency filings from the Sixth Circuit, has asked for a response to this application by 4 p.m. Friday.)
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Four months after the tenth anniversary of the Supreme Court’s Bush v. Gore decision, settling a presidential election dispute, the Court has been asked to step into a constitutional controversy over who won the post of juvenile court judge of Hamilton County, Ohio — a case that seeks to test such major questions as whether the Court will ever apply its famous 2000 decision to any other election contest, and, if so, how far down the ballot — from national to local — the constitutional requirement of equal counting of votes will extend.
Those issues are raised in an application (10A989) by the juvenile judge candidate, John Williams, who at one point appeared to have won by 23 votes, but now is at risk of losing by perhaps not many more votes than that. Williams’ application is joined by the Hamilton County Board of Elections, which is seeking to avoid a complex new count of hundreds of ballots cast in “provisional” form by voters in the county last fall.
Election law experts are fond of pointing out that the Supreme Court had insisted that its presidential election decision was confined to one specific situation, and that it has never again cited it in any case, but that lower courts have cited it at least 250 times, and actually do decide election cases based upon that ruling. Williams, indeed, noted in his application that Bush v. Gore was the main precedent that led the Sixth Circuit Court, last January, to find unconstitutionality in the differing treatment by Hamilton County election officials of “provisional” ballots that voters had cast before election day November 2.
When the initial tally of the total of 289,791 votes was calculated, Williams had bested his opponent, Tracie Hunter, by 23 votes. Hunter then went to federal court to challenge the process; that dispute isn’t over yet, but Hunter has won a court mandate to do some recounting. The dispute between them focuses on perhaps no more than 1,000 ballots, overall, with a specific focus on 849 that were not counted.  All of the ballots in issue were potentially flawed, because they were cast in the wrong precinct, and Ohio law generally forbids counting such votes. The error often appeared to result from voters having failed to go to the right precinct table, in order to cast their votes provisionally before election day, with their polling station serving more than one precinct.
The constitutional dispute between Hunter and Williams focuses on the fact that the election board counted some of the wrong-precinct votes, finding them acceptable because of innocent mistakes by poll workers, but refusing to count others wrongly cast when the same poll worker-error was supposedly the cause. (That summations is a significant over-simplification; the process of counting or not counting has been multi-faceted and very detailed, and proceeded under decisions both by a federal District judge and by the Ohio Supreme Court before the Sixth Circuit Court issued the decision that Williams and the local election board plan to challenge in a forthcoming petition for review by the Justices.)
For now, the application seeks to compel the Sixth Circuit to recall the order implementing its decision (that order was issued last Friday), and to block the ruling until after the Supreme Court acts on the petition. The Court will not act on the petition itself, of course, until after it has been filed, but action could come on the temporary request as early as next week. Justice Kagan has the authority to act on the temporary plea by herself, or she can opt to share it with her eight colleagues.
But, as the case reached the Supreme Court in Williams’ application, it has been pared down to a fundamental test of how far Bush v. Gore might reach. It argued that it should apply only when there is intentional discrimination among votes in the counting process, arguing that there was none of that in Hamilton County, and only when the differing treatment occurs among voters across a state, not in a disputed election in a single county, among a fairly small number of precincts.
The Sixth Circuit, while saying that federal judges generally should stay out of “garden variety election irregularities,” said they should not “stand mute in the face of allegations of a non-frivolous impairment of federal rights.” It found such an impairment in the counting provisions for provisional ballots in Hamilton County, for the juvenile judgeship. If there is a lack of specific standards to assure equality on counting, the Circuit Court said, the results may actually be arbitrary and unequal.  That is particularly true, it added, when election officials are trying to discern whether poll workers made an error in directing voters how to cast their ballots. That involves a kind of judge-like determination, not a routine administrative decision about how to run an election, it said.
In this counting process, the panel said, an election board’s “discretionary review must apply similar treatment to equivalent ballots.”
Williams and the Hamilton County board argued in their plea to the Supreme Court that the Sixth Circuit decision goes too far. While “elections can always implicate federal rights,” they said, “federal courts have been careful to respect the role of the states in the conduct of elections, especially state and local elections. Federal courts have also recognized that not every mistake rises to the level of a constitutional violation or allows a losing candidate to rush into federal court to seek to change the outcome. But the Sixth Circuit panel majority in this case departs from that history.”
Starting from the premise that 27 of the provisional votes were counted, the Circuit Court “found an equal protection violation and directed as a remedy the potential counting of hundreds of additional ballots — all of them illegally case under Ohio law. That decision is in conflict with numerous other circuit court decisions and the highest court of a state decided both before and after Bush v. Gore.”
