Academic highlight: Hasen on the resurrection of Bush v. Gore
on Dec 17, 2012 at 10:58 am
In his forthcoming contribution to the George Washington University Law Review’s Law and Democracy symposium, Professor Richard Hasen describes the Sixth Circuit’s surprising “resurrection” of the Supreme Court’s decision in Bush v. Gore. Hasen has tracked the increase in election law litigation since the Court’s controversial 2000 decision put an end to the election dispute in Florida and thereby ultimately determined the presidential election. (Those interested in the topic more generally should read Hasen’s recent book, The Voting Wars.) Until now, however, Bush v. Gore had not played a major role in such litigation. Indeed, as Hasen notes, courts and scholars have questioned whether Bush v. Gore has any precedential value at all. At least in the Sixth Circuit, however, it appears that the decision lives on. To the surprise of many — including Hasen — Bush v. Gore has now been cited repeatedly by the Sixth Circuit in its decisions striking down Ohio’s restrictions on early voting and the counting of provisional ballots. Although Hasen believes the Sixth Circuit’s precedent is “significant,” he cautions that the decisions themselves may be “limited and ephemeral” because no other circuit has relied on Bush v. Gore to the same extent. Hasen speculates that even if Bush v. Gore does not become a mainstream citation, however, it may serve as important precedent for the idea that courts can and should “aggressively police election rules.”
