On Dec. 12, 2000, the Supreme Court ended the recount of Florida’s votes in that year’s presidential election, effectively awarding 25 electoral votes to Republican George W. Bush and making him president. The decision was 5 to 4, with the most conservative Republican-appointed justices in favor of Bush. Democrats condemned the ruling as nakedly partisan, saying it was based not on precedent but a cooked-to-order legal rationale: Recount rules didn’t treat all ballots the same way, thus violating the 14th Amendment guarantee of equal protection of the laws. Many critics saw Bush v. Gore as an indelible blot on the court’s legitimacy. Seventeen-odd years later, Democrats are pressing a case whose essential premise is that the Supreme Court can and should be trusted to write a whole new category of rules affecting almost every state legislative and congressional election in the United States.
Their legal argument rests on the equal protection clause, and their hopes rest on the very swing-voter justice who tipped the 2000 election case, Anthony M. Kennedy.
At issue is the bad habit that state legislature majorities, abetted by like-minded governors, have of skewing congressional and state legislative districts to their party’s advantage.
The specific appeal now before the Supreme Court involves a Democratic challenge to a state legislative district map that Wisconsin Republicans drafted in 2011. (Republicans, in a separate case still in the lower courts, are challenging similar computer-aided manipulations by Democrats in Maryland.)