36 Pages Posted: 2 Apr 2007
The first section of this paper comments on a paper by Edward N. Foley, in which Professor Foley proposes a taxonomy for analyzing and evaluating actual and potential challenges to electoral practices under Bush v. Gore. The second section, which is the core of the paper, proposes an interpretation of Bush v. Gore based on a close reading treating the per curiam opinion as an integrated explanation of a result rather than taking particular statements out of context. The opinion is shown to be coherent. It is not "limited to its facts" and it does not attempt to negate any precedential effect, as many scholars have claimed. Two factors are crucial to the holding: (1) There was a disparate treatment of identical items of evidence in a judicial proceeding, and (2) the evidence treated inconsistently bore on the fundamental right to vote. The holding of the case is applicable only when those factors are present. However, the third and final section of the paper proposes a taxonomy, different from Foley's, for determining Bush v. Gore's possible influence in cases that are analogous but not within the holding.
Keywords: Bush v. Gore, electoral practices, election law, analysis of judicial proceedings of Bush V. Gore
Suggested Citation: Suggested Citation
Lowenstein, Daniel, The Meaning of Bush v. Gore. Ohio State Law Journal, Vol. 68, 2007; UCLA School of Law Research Paper No. 07-09. Available at SSRN: https://ssrn.com/abstract=976960