Equal Protection: Bush V. Gore and the Making of a Precedent
Posted: 10 Aug 2001
This essay, a chapter in a book of essays by law professors, historians, and political scientists edited by Jack Rakove, traces the doctrinal developments in equal protection law that culminated in the Supreme Court's decision in Bush v. Gore. It opens with a discussion of how the political question doctrine and the Supreme Court's decisions in Giles v. Harris and other cases involving elections led it to use the equal protection clause to police the political process. It then identifies aspects of the Court's one-person, one-vote decisions that set the stage for Bush v. Gore. It also traces the tortuous relationship between the Court and Congress over the enforcement of principles of political equality. The essay then turns to the Court's treatment of equal protection precedents in Bush v. Gore itself. Here, I point out ways in which the Florida situation resembled and differed from earlier equal protection cases, with respect both to the contours of the violation and, more importantly, with respect to the remedy imposed.
Given the tenuousness of the equal protection analysis, the question becomes why the Court relied on that rationale. I suggest a political, but not exactly partisan, explanation. As between the equal protection clause - source of some of the Supreme Court's finest moments, in cases such as Brown v. Board of Education and Reynolds v. Sims - and Article II, S 1 - the central pillar of at most a nineteenth-century case concerning how Michigan selected its electors - the choice was clear. If the Supreme Court was going to stop the recount process, and thus decide, in effect, who would be the next President of the United States, it had to use a constitutional provision with a celebrated and unassailable pedigree. The equal protection clause provided exactly that. Moreover, it allowed the Court to invoke the specter of unfairly disenfranchised voters, whereas the other available constitutional contenders protected either the prerogative of state legislatures (Article II, S 1) or, even worse, the interests of a particular candidate, George W. Bush (the due process clause).
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