The Problem of Bush v. Gore

Yesterday Bob Bauer posted a discussion of Bush v. Gore's precedential value in response to this New York Times piece by Adam Cohen, Has Bush v. Gore Become the Case That Must Not Be Named?Both peices are cast in the light of a case now pending for en banc review by the Sixth Circuit, Stewart v. Blackwell. The Stewart case, Bauer, and Cohen are questioning the importance of Bush v. Gore in election administration cases, but the questions extend beyong that narrow scope of election law.

Bauer notes:

Cohen seems right that Bush v. Gore holds unrealized potential; and if in the end, it is the affirmed ground of decision in cases like Stewart, then something will have been made of this potential. BVG will have become a BFD.

snip

it cannot be correct that equal protection applies to recounts and not to the original count. The logic of Bush v. Gore is inescapable: as reasoning about equal protection, applicable to the state’s treatment of voters, it is simply, as Cohen puts it, "right."

In the end, Bush v. Gore is, for all its potential, a burden, sinister in its effects, because the circumstances in which it was decided—and the clumsiness of its craftsmanship—have cast unjustified discredit on its reasoning. But the reasoning stands well on its own. The offspring should not have to pay for the sins of the parent.

I will fuly agree that the equal protection reasoning in the the BvG decision is, by far, the most important section, for precedential value, of the "clumsy" opinion. (While I am on the subject, Bauer seems to chide the Court for the clumsiness of an opinion in a case that ripened, was taken up, briefed, argued, decided and an opinion written in a matter of five weeks--far faster than the normal months-long deliberative process for most decisions of this import. Jeez, Bob--cut the Court a break!). But I digress.

One of the hallmarks of the decision was, as Cohen put it:

The majority opinion announced that the ruling was "limited to the present circumstances" and could not be cited as precedent. But many legal scholars insisted at the time that this assertion was itself dictum — the part of a legal opinion that is nonbinding — and illegitimate, because under the doctrine of stare decisis, courts cannot make rulings whose reasoning applies only to a single case.

I believe that once the Supreme Court puts pen to paper and publishes a decision, at some point people are going to cite it as precedent--it is, in Bauer's words, inescapable. But I believe there is a far better reason for the attempted limitation of the case by the Court--it did not want to overturn nearly four decades of precedent that treated some voters differently than others--at the Court's order.

Cohen writes, regarding the heart of the equal protection reasoning:

The heart of Bush v. Gore's analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. "Having once granted the right to vote on equal terms," the court declared, "the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another." If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now. (emphsis added)

True, election administration, that is the counting and if necessary, recouting of votes, is the area most directly impacted by Bush v. Gore, but it carries implications for many other voting rights cases.

If, as I agree, the Court's equal protection reasoning in Bush v. Gore is "right," such reasonsing would throw into doubt some 40 years of very important precedent in numerous lines of cases, including cases dealing with majority-minority districts, vote dilution, retrogression, racial gerrymandering and many other types of cases; indeed most of the Voting Rights Act jurisprudence would be turned on its head. I believe the Justices knew, or at least suspected, this would be the case and thus wrote in the limiting language.

In order to understand the need for the limiting language, let us take a look at a simple mathematical truth. The value of X, what ever X is in math, can have only one of three properties:

1. X can be less than 1 (X<1)
2. X can equal 1 (X=1)
3. X can be greater than 1 (X>1)

At no time can X share any two of these properties, let alone share all three. Yet when it comes to voting rights, the Supreme Court has mandated that X, the value of a vote, be all three--at the same time! While the disparity of treatment is not arbitrary, it certainly is disparate.

The Court would have had a mighty struggle to distinguish why disparate treatment in teh counting of votes in Florida is not justified, when the Court itself has has applied disparate standards in other areas of voting rights. Several months ago, I wrote a series of posts relating to vote dilution, retrogression, and majority-minority districts that have some relevance here. These three concepts each has a line or lines of cases decided by the Court struggling to interpret sections of the Voting Rights Act. The one, most important, unifiying conecpt behind these lines of cases is not the Voting Rights Act, but that all three concepts mandate the state treatment of some voters differently from others in direct contravention to the holding in Bush v. Gore. Thus in order for the Court to effectively arrive at a decision in Bush v. Gore, the limitation of the precedential value was absolutely necessary.

With vote dilution and majority-minority districts, the government has taken noble steps to improve the ability of minorities to elect candidates of their choice by giving more import (a relative value greater than one) to the votes of minorities than of non-minorities. Thus the state, or rather the federal government, has given more value to one group of votes than to another.

The implicit assumption of the protection afforded by vote dilution and majority-minority districts, and a somewhat more explicit stated in retrogression cases, is that without these protections, the value of a minority vote is somehow less than the relative value of one. So in within these three concepts, the courts are saying that, at the very same time, a minority vote is somehow both less than the relative value of one, thus in need of state protection, and greater than the relative value of 1, because minority votes are favored over non-minority votes in certain respects. Adding more confusion, at the same time, the whole point of the reapportionment/redistricting reform (the one person/one vote) cases and the Voting Rights Act is that, by law, each vote counts as one. Such mathematical impossibilities can exist only in law!

The logical fallacy of the voting rights cases carries with it some very real world benefits and costs. One of the costs of the voting right cases is that we end up treating some voters differently than others, whether the cause is noble or not. If nearly 40 years of precedent has been based on this logical and mathematic inconsistency, to have a case decided in less than a week, without full and due consideration, one the same subject matter could jeopardize the entire regime.

But if Bush v. Gore were to become a controlling precedent in election administation, that each vote be counted as one, with no vote getting more or less weight that others, it is not a far stretch to begin to question whether such principles should apply in other senstive areas, such as reapportionment, majority-minotiry districts, vote dilution, and retrogression.

Therein lies the confounding problem, and unlimited potential, of Bush v. Gore. The voting rights jurisprudence cannot at once declare equal protection for the physical enumeration of votes once they are cast and not have full equal protection for those who cast the votes.