All the votes from the November 5 election have been tabulated, and the Virginia attorney general race is as close as they come. Democrat Mark Herring holds a slim 164-vote lead over his Republican opponent, Mark Obenshain. The close count has teed up a likely recount for next month, and the Republican candidate has hinted at an unusual legal strategy: basing a lawsuit on Bush v. Gore, the controversial Supreme Court decision that ended the 2000 presidential election in George W. Bush’s favor. The Supreme Court usually prides itself on respecting the past while keeping an eye toward future legal precedent. But the court trod lightly when it intervened in 2000. The five conservative justices may have handed the election to Bush, but they tried to ensure that their decision would lack wider ramifications. “Our consideration is limited to the present circumstances,” read the majority opinion in Bush v. Gore, “for the problem of equal protection in election processes generally presents many complexities.” The conservative majority wanted to put a stop to the Florida recount, but they hoped their ruling—which extended the 14th Amendment’s equal protection clause to argue that different standards cannot be used to count votes from different counties—wouldn’t set precedent in future cases. For a time the justices got their wish. But the supposed one-time logic of the controversial decision has begun to gain acceptance in the legal community—particularly among campaign lawyers in contentious elections.
Virginia GOP attorney Miller Baker challenged the attorney general results on Bush v. Gore grounds last week during a meeting of the Fairfax County electoral board, claiming the rest of the state lacked equal protection thanks to the county’s method for tabulating votes. The problem stems from a swath of uncounted provisional ballots in the region. Obenshain had led Herring after initial Election Day results, but the Democrat closed the gap thanks to some misplaced votes in a reliably blue section of Fairfax County, a DC suburb. The Republican-dominated state Board of Elections then demanded that Fairfax change its procedure for provisional ballots midway through counting. But even after the changes, Fairfax still afforded residents several extra days to advocate on provisional ballots compared to the rest of the state. (Other counties had until the Friday after the election, while Fairfax allowed votes to be counted until the following Tuesday.)
Obenshain issued a statement last week that left his options open and mentioned the need for “uniform rules,” which election law expert Rick Hasen interpreted as a sign that the Republican is gearing up for a lawsuit that would base its challenge on Bush v. Gore.
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If Obenshain does file a lawsuit using that reasoning, he will be just the latest politician to facilitate the recent rehabilitation of Bush v. Gore. Surprisingly, the court case that anointed George W. Bush president has actually favored liberals in terms of setting legal precedent. “The courts have looked around for some legal authority for the proposition that there is an important federal right to participate in federal elections,” says Samuel Issacharoff, a professor at New York University School of Law who has studied the aftermath of Bush v. Gore, “and the problem they have is that the constitution doesn’t specify this.”