Bush V. Gore and the Future of Equal Protection Law in Elections

Abstract

The Supreme Court's per curiam majority opinion in Bush v. Gore held that a state violates equal protection when its fails to have uniform standards for the recounting of votes during a statewide election contest. Part I of this Article argues that although some have heralded the opinion as the (perhaps unintended) dawn of a new era in the jurisprudence of equal protection in elections, there are good reasons for doubting that the Supreme Court majority intended anyone to take their equal protection holding seriously. Language in the per curiam opinion limits it to the facts of the case, or, at most, to cases where jurisdiction-wide recounts are ordered. Moreover, the Court's own analysis was superficial. It failed to explain or justify its large extension of precedent; it ignored serious standing questions; and, most importantly, the Court appeared to speak the language of strict scrutiny but apply something much less than strict scrutiny. Finally, the kind of equal protection claim favored by the conservative justices in the Bush v. Gore majority is a strong departure from the usual equal protection jurisprudence they favor.Part II of this Article considers not whether the Court meant what it said, but rather what would be the consequences if the Court indeed meant what it said. The equal protection jurisprudence of Bush v. Gore moves election law jurisprudence to an uncharted third level of political equality - equality in the procedures and mechanisms used for voting. Part II explores a range of election law cases that may be subject to a "third level" political equality claim. It concludes that, if the case were taken seriously, Bush v. Gore would have great precedential value in changing a host of voting procedures and mechanisms, particularly when challenged prospectively. Part III of this Article explores the benefits, costs, and implications of expanding equal protection to such third-level claims. The benefits of the approach are fairly obvious: a precedent requiring scrupulous equality in the holding of elections will increase resources used to conduct elections. But expanding political equality to the third level would be a mixed blessing. Putting aside costs, three concerns arise with extending equal protection jurisprudence to the nuts-and-bolts of elections. First, third-level claims provide a new reason and a pretext for federal courts to nullify state and local election results. Second, third-level claims undermine federalism. Third, third-level claims create a disincentive for jurisdictions to experiment with new methods of voting, such as internet voting.Finally, it is worth thinking about the doctrinal implications of extending equal protection jurisprudence to the third level. It is unclear whether extension of equal protection to the third level differs meaningfully from arguments calling for greater political equality in terms of electoral structures (such as Justice Marshall's argument in his dissent in Mobile v. Bolden) and financing election campaigns (such as the arguments of Jamin Raskin and John Bonifaz).