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Bush v. Gore and equal protection

This election explainer was written by experts from Election Law at Ohio State, a program of the Moritz College of Law. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

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

This is the sentence that has caused so much consternation, from the majority opinion in Bush v. Gore — the case that, as its name reveals, involved the two presidential candidates in 2000 and their fight to win Florida and thus an Electoral College majority.

This one sentence has been called, ever since that fateful December night when the court’s ruling was released, a confession of the court’s own unprincipled decision in the case. Grappling with the significance of this sentence is the essential prerequisite to considering the case as a potential precedent involving the Constitution’s equal protection clause and its applicability to future litigation.

To others, this maligned sentence has a much more innocent explanation: simply a straightforward acknowledgement by judges prone to fact-specific reasoning — think of Justice Sandra Day O’Connor’s jurisprudence generally — that the court was treading into unfamiliar recount territory warily, and therefore lawyers in future cases should be cautious against overreading anything said in this hastily drafted opinion. (O’Connor’s biographer, Evan Thomas, confirms what others have long suspected: that she was the one who insisted that Justice Anthony Kennedy add this cabining sentence to the opinion that he otherwise drafted.)

20 years on, the only time the case has been cited in a Supreme Court opinion is in a 2013 dissent by Justice Clarence Thomas, and even then the citation was not for its equal protection ruling but rather for a collateral proposition about the power of state legislatures to choose the manner of appointing a state’s electors. Maybe this lack of citation means the case really never established any precedent capable of being relied upon in future litigation.

Or maybe, instead, the court has not had occasion to apply again the equal protection principle that it invoked to decide that case, and when it does, the court will have to say something more about its scope and force. It would be ironic indeed if the very first time the court felt obligated to expound upon the meaning of Bush v. Gore were in the context of another disputed presidential election because, whatever equal protection principle the case might stand for, it is not a principle confined to presidential elections specifically but instead applies at a minimum to any statewide recount.

What, then, can we usefully say about the equal protection holding of Bush v. Gore, and its potential relevance to issues that might reach the Supreme Court this fall?

The holding was about “hanging chads” — and the dimpled or pregnant ones. These “chads” were the little bits of paper that punch-card voting machines dislodged from cast ballots, except that some of these chads were not dislodged completely but rather left hanging or dimpled if insufficient force was used — a problem that could occur especially when machines were clogged with previously dislodged chads and elderly voters had difficulties in effectuating their intent.

The equal protection issue arose because different localities within Florida were using different specific standards to determine whether to count a ballot as having a valid vote. Some localities, for example, required a chad to be punctured so that light could pass through it in order for it to count as a vote — a position known colloquially as the “sunshine” standard. Other localities, by contrast, were willing to count a chad even if it was only dimpled and thus would fail the “sunshine” standard. Even within the same locality, moreover, different recount teams were applying different standards.

The Supreme Court ruled that this differential treatment of identically marked ballots violated equal protection, at least in the context of a single statewide election. The court observed that the one-person-one-vote jurisprudence emanating from such precedents as Reynolds v. Sims (1964) and Harper v. Virginia Board of Elections (1966) protects not just “the initial allocation of the franchise” but also the “manner of its exercise.” The key point was that all eligible voters in the same election were entitled to have their ballots treated equally in the counting process. “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,” the court wrote in its per curiam opinion.  Arbitrary inequality is what most concerned the court.

The problem was that the state could have avoided arbitrary inequality by specifying the standard to apply. The court acknowledged that, for some issues, like assessing the credibility of a witness, it might not be possible to specify a standard beyond a general proposition. But when the issue is “how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper,” in this context it is possible to adopt more “specific rules designed to ensure uniform treatment.” Given that this additional specificity was “practicable,” the court determined that it was “necessary.”

The five members of the majority were not the only justices to voice equal protection concerns. Justice David Souter, who had pressed the equal protection issue forcefully during oral argument, wrote: “I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.” Justice Stephen Breyer, somewhat more muted, said he “agree[d]” that “basic principles of fairness may well have counseled the adoption of a uniform standard.” But both Souter and Breyer dissented as to the court’s remedy for the equal protection problem; they, like the two other dissenters, would have permitted the recount to resume in the Florida courts on remand, with a goal of completing it in the next six days – before the state’s electors were required to meet.

All seven of the justices who saw validity to Bush’s equal protection claim also recognized that there necessarily would be limits to the scope of the equal protection principle on which that claim relied. The issue of whether it would violate equal protection for different localities within a state to use different types of voting technologies arose during oral argument and, however that issue might be resolved, it pointed to the proverbial slippery slope. What about different polling hours in different localities in the same election? Different numbers of voting machines, or poll workers, per capita for the voting population of each locality in the state? Different length of wait times? And so on. It was inevitable that there would be difficult line-drawing issues, no matter how the court ruled on any particular set of facts. Which is precisely why the court’s opinion included the warning: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

In the 20 years since, it has been left to lower courts to struggle with these line-drawing issues. The courts have hardly been able to ignore Bush v. Gore entirely, as if it had never been decided, or was a decision without any precedential effect whatsoever. Instead, lower courts have applied it to the differential treatment of provisional ballots — and absentee ballots — in signature matching and various other rules for when ballots get either counted or rejected. Those are precisely the kinds of issues that could arise in the upcoming November 2020 election, when absentee voting will be widespread.

All of these lower-court opinions could provide useful guidance in the event the Supreme Court must revisit Bush v. Gore for the first time since it was decided. But, of course, none of those lower-court opinions are binding on the Supreme Court, and it ultimately will be up to the justices themselves to decide what guidance to glean from this body of jurisprudence that has developed in the wake of Bush v. Gore.

For all the invective that was hurled at the court for its cabining sentence in the Bush v. Gore majority opinion, it never was going to be that opinion itself which would determine its ultimate fate. Instead, it was always going to be a future Supreme Court that would have the burden — and the power — of determining what Bush v. Gore really means. The only question right now is whether that determination will occur this year, or instead will continue to be postponed into the more distant future.