The Untimely Death of Bush v. Gore

Abstract:     
The moment for election reform inspired by the Supreme Court's decision in Bush v. Gore has come and gone. While some thought that election reformers could make lemons from lemonade from Bush v. Gore's equal protection holding, that possibility has not come to pass. Political factors have failed to respond well to the crisis in our election administration made obvious by the 2000 Florida voting fiasco.

Part I of this Essay, looking at punch card litigation in the Sixth and Ninth Circuits, explains that though some lower court judges still may look to the Bush v. Gore precedent as a means to force states to undertake election reform, that effort has been stymied thus far through the en banc process in the federal appellate courts.

Part II considers state and federal legislative and administrative responses to Bush v. Gore. Although vote counting technology has improved, states have made little progress otherwise in fixing their election administration problems. In fact, election administration reform has taken on an increasingly partisan direction. The debate over good election practices is taking place in the absence of good evidence, raising the possibility that some laws, most prominently new laws requiring voters to show identification at the polls, are being enacted for partisan advantage rather than to remedy any real problem.

Part III returns to the failure of the courts in the wake of Bush v. Gore. It begins by noting that the rise in election litigation that this country witnessed after Bush v. Gore continues unabated. It then uses the Supreme Court's recent opinion in Purcell v. Gonzales to show that the Court has failed to learn the lessons of Bush v. Gore. The Court's decision to issue a quick opinion, its casual empiricism, and its discouraging of pre-election litigation demonstrate that all members of the Court - both liberal and conservative Justices - are insufficiently sensitive to the kind of trouble their election administration opinions may cause. Part III concludes with an examination of Judge Posner's troubling Seventh Circuit opinion in Crawford v. Marion County Election Board upholding Indiana's voter identification law against a dissent by Judge Evans.

Keywords: election administration, voter identification, Bush v. Gore, equal protection

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