Is There a First Amendment Defense for Bush v. Gore?
Abner S. Greene
Fordham University School of Law
Notre Dame Law Review, Forthcoming
The Supreme Court's ruling in Bush v. Gore attracted an enormous outpouring of critical response. But there is a defense for the merits holding of Bush v. Gore that has not received adequate attention. In a well-established line of free speech and press cases, the Court has insisted that state law carefully circumscribe the discretion of local officials to pass on applications for parade permits and the like. The "Lovell doctrine," named after the first case in this line, permits facial challenges to such laws, to ward off the risk of administrative bias that might be too difficult to show on a case by case basis. Similarly, the Florida statutory provisions asking local county officials to determine "voter intent" when manually recounting ballots may be thought to vest too much discretion in officials who are highly subject to the tugs of partisan political connections. Just as rights of political participation are at stake in the Lovell doctrine cases, so were they at stake in the 2000 presidential election, whether seen as the rights of the candidates or the voters. This Article develops the analogy between the Lovell doctrine and the Florida election law that the Court confronted in Bush v. Gore. It provides a detailed account of the Lovell line of cases and a critique of the scholarship in the area. It builds a prima facie case for importing the Lovell doctrine into the election law setting, and responds to several objections to so doing. It also responds to two challenges raised by Justice Stevens in his Bush v. Gore dissent, both involving the possibility that objective ballot counting rules could have been set and applied in a disinterested fashion by state judges. If we accept the application of this long line of First Amendment caselaw to the setting of ballot counting, then we can read Bush v. Gore as a narrow but powerful precedent, limiting the power that States may delegate to local officials to determine what counts as a vote, but not extending to other, mechanical differences that might exist within a State.
Number of Pages in PDF File: 112Accepted Paper Series
Date posted: February 3, 2005
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