Refining the Bush v. Gore Taxonomy

28 Pages Posted: 4 Nov 2007

See all articles by Edward B. Foley

Edward B. Foley

Ohio State University (OSU) - Michael E. Moritz College of Law


This piece grows out of my larger piece "The Future of Bush v. Gore" and is part of the same symposium "Election Law and the Roberts Court", to be published by the Ohio State Law Journal. This piece specifically replies to Professor Daniel Lowenstein's contribution to the symposium, which itself was a response to my "The Future of Bush v. Gore" article. Building upon Lowenstein's very constructive commentary, this piece refines the original article's classification of potential Equal Protection claims based on the precedent of Bush v. Gore. This refinement emphasizes the distinction between adjudicatory and regulatory administrative actions undertaken by local election officials, while simultaneously retaining the earlier three-part classification of the potential relationship between local election administration and state law: mistake, imprecision, and express delegation. The refined categorization of potential Bush v. Gore claims is offered in the hope that it will be useful to litigants and judges in their effort to assess the merits of those potential claims.

Keywords: voting, electoral, presidential election

Suggested Citation

Foley, Edward B., Refining the Bush v. Gore Taxonomy. Ohio State Law Journal, Vol. 68, October 2007; Ohio State Public Law Working Paper No. 107. Available at SSRN:

Edward B. Foley (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-292-4288 (Phone)
614-292-2035 (Fax)

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