Fifteen years after Bush vs. Gore, 15 years after the Supreme Court intervened in a presidential election, a single sentence in the majority opinion remains one of the great constitutional brainteasers in our history. If we take the sentence at face value, it’s nonsensical; if we ignore it, we might just be able to improve our dysfunctional election system, at least modestly. As we all know, the Supreme Court on Dec. 11, 2000, ordered an end to ballot-counting in Florida, effectively calling the election for the national popular vote loser, George W. Bush. And as most fair-minded legal experts agree, the rationale for leaving more than 100,000 ballots uncounted was convoluted — an extravagant and unprecedented twist on Equal Protection law.
Observing that the Florida Supreme Court’s recount procedure depended on election officials discerning the “intent of the voter” in different counties, the U.S. Supreme Court ruled that there were not sufficiently specific rules in place to guarantee that all ballots would be treated exactly equally in different places. Although the “intent of the voter” standard was the same across all 50 states, the majority found that Florida’s recount process did “not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right” of voter equality. The 5-4 majority then decided, bizarrely, that the remedy for the hypothetical problem of certain ballots being unfairly excluded was to exclude all of them. Case closed; election over.
Everything about this reasoning was deeply suspicious, but the most baffling aspect was the unusual disclaimer the majority posted at the end of its analysis: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words: This decision exists in a vacuum. Like Cinderella’s gown, the reasoning here turns to rags at midnight.
Election specialists understood the point immediately. This country has thousands of electoral jurisdictions, all with varying rules for voter registration, voting by machine or paper ballot, vote tabulation, absentee voting, and candidate access to the ballot. The voting experience differs dramatically across municipal, county and state lines.
Full Article: Bush vs. Gore’s ironic legal legacy – LA Times.