The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore
Richard L. Hasen, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 Geo. Wash. L. Rev. 1865 (2013).
In 2000, some scholars predicted the Supreme Court’s controversial equal protection holding in Bush v. Gore that the state could not arbitrarily value one person’s vote over that of another might be used to force states to improve their election processes through litigation. In the ensuing years, Bush v. Gore had not fulfilled that promise. Scholars debated when, if ever, the case could apply beyond the narrow facts of a statewide recount with inconsistent counting standards, but the courts seemed uninterested: the Supreme Court has failed to cite the case for any proposition, and the few lower courts which relied upon the case as precedent to create better and fairer voting conditions were overturned or limited. By 2007, I lamented the “untimely death” of Bush v. Gore.
A funny thing happened during 2012. The voting wars which had ensued since 2000 manifested themselves in a host of restrictive election rule changes passed in the name of fraud prevention and administrative convenience mostly by Republican legislatures and implemented by Republican election administrators. Democrats, the Department of Justice, and reform groups resisted the overreach, litigating over many of these changes. The results of this litigation was a mixed bag. For example, courts approved some voter identification laws, rejected others, and put Pennsylvania’s and Wisconsin’s laws on hold for this election season but perhaps not beyond that. Overall, it appeared that in the most egregious cases of partisan overreach, courts were serving, often with surprising unanimity, as a judicial backstop.
In Ohio, one of the twin epicenters (along with Florida) of the 2012 voting wars, two important cases relied in part on Bush v. Gore to expand voting rights. In one case, a conservative panel of the United States Court of Appeals for the Sixth Circuit — a court which had shown itself bitterly divided along party and ideological lines on election issues in 2008 — unanimously held that Ohio’s disenfranchisement of voters for voting in the wrong polling location because of poll worker error violated the equal protection clause. In the other case, another Sixth Circuit panel held that Ohio’s contraction of the early voting period to exclude the weekend before the election, for all voters except certain military voters, violated the equal protection clause under Bush v. Gore. The court so held despite the fact that Ohio provided 23 days of early voting and for the first time sent all Ohio voters a no-excuse absentee ballot application. This latter ruling was at best a major stretch of Bush v. Gore and existing precedent.
The story of the 2012 voting wars is a story of Republican legislative and to some extent administrative overreach to contract voting rights, followed by a judicial and public backlash. The public backlash was somewhat expected — Democrats predictably made “voter suppression” a key talking point of the campaign. The judicial backlash, and the resurrection of Bush v. Gore in the Sixth Circuit, was not. The judicial reaction, from liberal and conservative judges and often on a unanimous basis, suggests that courts may now be more willing to act as backstops to prevent egregious cutbacks in voting rights and perhaps to do even more to assure greater equality and fairness in voting. However, it is possible that this trend will reverse in future elections.