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The Future of Bush v. Gore?

99 Pages Posted: 6 Apr 2007  

Edward B. Foley

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


At the beginning of the Roberts Court, this article considers three dimensions of the Rehnquist Court's most famous precedent, examining the precedent's potential for influencing the development of the law along each of these dimensions. First, to what extent will the Equal Protection holding of the Court's opinion in Bush v. Gore generate a new domain of meritorious Equal Protection challenges to voting inequalities? Second, to what extent will the Supreme Court's willingness to stop the Florida recount in 2000 result in greater judicial intervention into voting procedures while they are underway? And third, to what extent will the intense media and academic criticism of Bush v. Gore affect the Court's role in constitutional cases generally?

The article will devote more space to the first of these questions, because elections in 2004 and 2006 revealed a myriad of fact patterns that generate potentially meritorious claims requiring detailed substantive analysis of the Equal Protection precedent. Even so, the article's answer to the second question (also based on insights from voting-related litigation in 2004 and 2006) — that Bush v. Gore discourages judicial intervention into the voting process — is significant, because it corrects a misreading by many eager litigants of the signal sent by the Court. And as for the case's long-term implications for constitutional law generally, they are likely to be minimal, because the reason for the case's extreme notoriety (its role in identifying the winning presidential candidate) is likely to be its least important attribute over time.

Keywords: ballot, vote

JEL Classification: H11, K40

Suggested Citation

Foley, Edward B., The Future of Bush v. Gore?. Ohio State Law Journal, Vol. 68, 2007; Ohio State Public Law Working Paper No. 92. Available at SSRN:

Edward B. Foley (Contact Author)

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

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