Will Bush v. Gore Save Barack Obama?

If Obama narrowly wins Ohio, he can thank Justice Scalia and the court’s conservatives.

U.S. Supreme Court Justice Antonin Scalia.
Justice Antonin Scalia speaks at the American Enterprise Institute earlier this month. Courts are citing Bush v. Gore more often in voting-related cases.

Photo by Alex Wong/Getty Images.

One part of the story of the 2012 voting wars is well known: Republican legislatures have passed a series of laws making it at least modestly harder for people to vote. These GOP-inspired rules have included limits on early voting, stricter rules for voter registration, and new voter ID laws to stamp out unproven allegations of voter fraud. Less well-known is that courts have reined in some of these excesses, including a decision to block Texas’s stringent voter ID law, an injunction putting Pennsylvania’s voter ID law on hold for this election, and a settlement  blocking the worst of Florida’s voter registration hurdles.

The judicial record has been decidedly mixed. The Pennsylvania law will likely be approved by the 2014 elections, courts have allowed Republican secretaries of state to pursue purges of noncitizens from voting rolls despite ample evidence that the lists erroneously included many eligible voters, and federal courts recently refused to roll back Texas’ tough new voter registration rules.

But the fight over Ohio’s election laws tells a different story. The Buckeye State has seen a rather remarkable string of wins for voting rights supporters. Federal courts have ordered the expansion of early voting and saved the votes of potentially thousands of voters who would have been disenfranchised because of poll worker errors, such as sending a voter to the wrong table to vote because the worker cannot tell an odd from an even number. Even more remarkably, the decisions from Democratic and Republican judges alike have relied on a very broad reading of Bush v. Gore, the Supreme Court case that ended the 2000 Florida recount in favor of George W. Bush. In fact, if President Obama narrowly ekes out a win in Ohio, he might have the conservative Supreme Court justices from 2000—Chief Justice Rehnquist, and Justices Scalia and Thomas—to thank for the victory.

In Bush v. Gore, the Supreme Court stopped the recount of votes ordered by the Florida Supreme Court. Rehnquist, Scalia, and Thomas, the most conservative justices on the court, argued that the recount violated Article II of the U.S. Constitution, which gives state legislatures the power to set the rules for choosing presidential electors. These justices said Florida’s recount violated Article II because it was done under standards set by the state’s judiciary, not its legislature. 

Justices O’Connor and Kennedy did not buy the Article II argument. They rested their rationale for ending the recount on the Constitution’s Equal Protection Clause, claiming that the changing and haphazard recount standards were arbitrary and “valu[ed] one person’s vote over that of another.” The court pointed to all kinds of problems and inconsistencies with the way various state counting boards were handling “punch card ballots,” which were run through computer counting machines that scanned where “chads” had been forced out.

Rehnquist, Scalia, and Thomas signed on to this opinion too—otherwise there would not have been a majority endorsing any single reason for stopping the recount. It is this majority-supported Equal Protection holding that is now helping Obama in the home stretch of the 2012 race.

 For years, voting rights advocates have tried to make lemonade from lemons, arguing that the Equal Protection holding of Bush v. Gore should apply more broadly to require equality and uniformity in conducting elections. Until recently, these attempts have mostly met with failure, with courts reading the case’s holding narrowly. Some argued that at most the opinion would apply to require uniform rules for conducting election recounts. So poorly had Bush v. Gore fared in the lower courts—the Supreme Court has never cited it for any purpose since it was decided—that I declared Bush v. Gore’s untimely death in 2007.

But in the last few years the opinion has been resurrected by the United States Court of Appeals for the 6th Circuit, the federal appellate court that includes Ohio.  In one recent case, a federal judge required Ohio to restore the last weekend of early voting, relying in part on Bush v. Gore’s equal protection principles. The judge suggested that once Ohio had added the early voting days, it couldn’t take them away, or at least couldn’t take them away from everyone except military voters. 

The 6th Circuit appeals court agreed. One of the appellate judges went so far as to say that the reason Ohio could not take the early voting days away is because the state had a bad history of long lines at the polls in 2004, and the early voting in 2008 seemed to clear up this problem. That was an incredibly broad extension of equal protection principles, well beyond even generous readings of the Bush v. Gore precedent.

Election law scholar Ned Foley, writing before the trial court’s decision in the case, explained how under existing precedent the state should have won this case. Courts had long allowed states to draw distinctions among classes of voters with different burdens, and let states change rules like early voting hours for any legitimate reason. After Ohio surprisingly lost, the Supreme Court refused to intervene, perhaps believing the stakes were not high enough to get involved.

Bush v. Gore also played an important role in the case in which the 6th Circuit held that the state of Ohio must count provisional ballots cast in the right polling location but the wrong “precinct” (which could be simply another table in the same gymnasium) because of poll-worker error. A panel of Republican judges unanimously declared, “The State would disqualify thousands of right place/wrong-precinct provisional ballots, where the voter’s only mistake was relying on the poll-worker’s precinct guidance. That path unjustifiably burdens these voters’ fundamental right to vote.” The result and broad equal protection ruling was a pleasant surprise.

The state of Ohio has not yet decided whether it will take this case to the Supreme Court, but it has just decided to appeal a new follow-up ruling from the trial court in this case holding that even ballots cast because of poll-worker error in the wrong polling location (as opposed to merely the wrong precinct within a location) also must be counted.  If the election goes into overtime, I expect the state will continue to fight this ruling.  Provisional ballots won’t even be counted until Nov.17, leaving plenty of time for litigation—and potentially the entire country hearing about the intricacies of Ohio election law as we await the winner of the presidential election.

But in the meantime, these two rulings in Ohio could help give Obama the edge.  What the Republican legislatures have taken away, the federal courts, including some Republican judges, have restored, relying in part on the arguments conservative justices endorsed in Bush v. Gore.