One More Round For Bush v. Gore
By Charles Lane for the Washington Post.
Bush v. Gore held for the first time that the Constitution’s equal protection clause, which protects citizens from arbitrarily disparate treatment at the hands of state authorities, can be applied to the methods states use to tally votes. Previously, election methods had been thought to be mostly the province of state officials.
The court ruled that a statewide manual recount ordered by the Florida Supreme Court to account for uncounted punch-card ballots, many of which were marred by “hanging chads” and the like, would be conducted according to wildly varying rules, making it impossible for the state to treat everyone equally within the short time available.
For the liberal interest groups and lawyers who have been fighting California’s recall, Bush v. Gore has mutated from reviled electoral coup to legitimate legal weapon.
If the case means anything, they argue, it means that the Constitution forbids states from arbitrarily counting different voters’ ballots differently. That includes setting up an election in which one technology, the punch-card machines, would subject a sizeable percentage of voters — among whom are a disproportionate number of minorities — to a greater risk of having their ballots discounted than other voters.
Indeed, yesterday’s ruling flowed from earlier litigation, since settled, in which groups used Bush v. Gore to win a promise from the state that all its punch-card machines would be replaced by March 2004, when the state will hold Republican and Democratic primaries.
The 9th Circuit noted that, according to experts, about 40,000 out of the several million expected to vote in the recall election would lose out because of the normal 2.23 percent error rate in the punch-card technology. Those voters would tend to come from six heavily minority counties containing 44 percent of the state’s voters, whereas 56 percent of the state’s voting population would get the benefit of machines with an error rate of no more than 0.89 percent.
Such discrepancies would probably not have risen to the level of a federal issue in the past, but 2000 changed all that, the 9th Circuit ruled.
“If we had brought the punch-card case to court before Bush v. Gore, you’d likely see the courts say, ‘No, states have to have some leeway,’ ” said Rick Hasen, a professor at Loyola Law School in Los Angeles who aided the American Civil Liberties Union in the case. “But if it doesn’t apply here, it doesn’t apply anywhere.”
