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Pretending That Bush v. Gore Was Constitutional Law: Ohio Edition

[ 39 ] October 29, 2012 |

Richard Hasen has an interesting story about how citations of Bush v. Gore‘s equal protection holding in the key decisions stopping vote suppression in Ohio:

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.

This is a little less surprising than you might think — while the Supreme Court has famously failed to cite the case a single time, it has been fairly extensively cited by lower courts, who have (properly) ignored the Court’s explicit admission that they were committing fraud assertion that “[o]ur consideration is limited to the present circumstances.” And this is a good thing. There’s a reason, after all, that the Republicans who decided Bush v. Gore didn’t want to create precedent — if you (unlike them) take the nominal holding in Bush v. Gore seriously, it would render many of the horrible inequities of the American voting system unconstitutional.

I’ve always been a fan of Mark Tushnet’s argument that, since the lawless legitimation of George W. Bush’s presidency can’t be undone, we might as well make law out of it:

A final technique of renormalization is in some ways the most interesting. It involves the generalized invocation of rule-of-law norms, typically in the form of assertions that the Supreme Court’s decision, while perhaps incorrect, nonetheless deserves respect because the Court is our nation’s voice of the law. The qualification in the preceding sentence is important. A decision can be justified by the rule of law standing alone only if there are no other reasons justifying the decision. That is, rule-of-law ideas have force only when someone who disagrees with a decision is asked to accept it nonetheless. Not surprisingly, this creates something of a psychological difficulty, related to, but not quite the same as, the phenomenon of cognitive dissonance. People find it hard to think that decisions with which they disagree are nevertheless justified. People also find it hard to give up on the ideal of the rule of law. The outcome is predictable. As time passes, people come to think that the decisions with which they initially disagreed were actually not wrong. I think we can expect to see, and I think reasonably soon, progressives asserting that, as a matter of fact, Bush v. Gore was correctly decided.

As indeed it was. After all, the equal protection doctrine the case articulated can certainly be turned to progressive uses. We can, and should, take the case as another in a long line of decisions by political actors–a category that includes judges–expanding and protecting the expansion of the franchise. Some of us may retain a lurking, or even overt, sense that the Justices who joined the majority opinion in Bush v. Gore did not see the case in those terms and that those Justices were motivated by narrow partisan concerns. Still, the case is there to be used by progressives in the future. And that, to conclude, would be another vindication of a different critical legal studies claim, this one about the indeterminacy of legal doctrine.

It’s possible that Ohio will prove to be a case of this actually working.

UPDATE: Since the cited passage may be misleading, I should note here that when Tushnet is talking about Bush v. Gore being correctly decided, he’s talking about the equal protection holding itself, not the Court’s remedy (which was inconsistent with the holding.) Going forward (for questions other than the historical reputation of the majority justices), however, what matters is how the holding is applied, because the effects of the remedy can’t be undone.

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  1. Rarely Posts says:

    I agree that progressives should cite Bush v. Gore and embrace its Equal Protection reasoning. However, I don’t think that Bush v. Gore will ever be seen as “correctly” decided because the majority didn’t actually apply its own reasoning or Equal Protection holding consistently to the election and case before it. Their remedy didn’t make any sense in light of the Equal Protection rule that they allegedly applied. So, I doubt that it will ever be seen as “correct.”

    • Scott Lemieux says:

      Right. I take Tushnet to mean that the 14th Am. holding will be viewed as correct, not the remedy.

    • wengler says:

      That the justices that agreed with it weren’t even willing to sign their name to the damn thing tells you all you need to know about Bush v. Gore.

    • mpowell says:

      This is what I was going to say. I can agree with the framework of Bush v Gore while still believing that it was wrongly decided. It doesn’t seem like Tushnet is acknowledging this perspective, but it’s really a fairly minor point.

      • Scott Lemieux says:

        seem like Tushnet is acknowledging this perspective

        If you read the whole piece, it’s premised on the idea that Bush v. Gore was so obviously partisan politics that it vindicates CLS. To say he acknowledges this perspective is understating it.

        • mpowell says:


          I think we can expect to see, and I think reasonably soon, progressives asserting that, as a matter of fact, Bush v. Gore was correctly decided.

          I’m not sure if our disagreement is semantics or not, but I interpret this statement to mean that not only will progressives make this claim as a tactical matter, but also actually believe it. I can believe the principle is correct but that the court didn’t apply their own principle correctly in Bush v Gore. Many liberals share this belief. I also doubt a commitment to the rule of law will ever cause me to change this belief. And because I don’t see anything wrong with the principle being advance in Bush v Gore (as opposed to the decision itself), there is actually no tension between my commitment to the rule of law and my support for the principle in Bush v Gore that can be applied in future cases. So really I don’t think this case proves what Tushnet claims it does. I’d also note that he follows that original quote with the statement “and indeed it was”. Perhaps he disagrees with the claim that the Supreme Court incorrectly applied to their own principle to the case at hand, but he must acknowledge that many people do maintain that. It seems to me to be the case that he is overlooking this point and it undermines his use of this case in defending CLS (not that I necessarily have a problem with CLS in general, though).

  2. TT says:

    I think the new legal frontier for the voter suppression crowd will be to start claiming that restricting the franchise as much as possible guarantees equal protection for those who already have it. After all, they argue, “voter fraud” (i.e. votes cast by non-conservatives and non-whites) violates the rights of those who have taken the time to vote legally.

    • Mr. Upright says:

      And at that point I would love for a judge to ask the suppression-minded litigant how many legal votes prevented are equivalent to one illegal vote prevented.

      • wengler says:

        ‘One legal voice silenced is tantamount to all legitimate voices silenced.’

      • Bruce Baugh says:

        Prediction: By 2014, prominent Republicans will be saying that accidental disenfranchisement of their own is a sacrifice that their own are glad to make for the sake of this wonderful country’s integrity as a whole. Disenfranchisement of anyone else, of course, is simply protecting God’s chosen land and people.

        The most likely failure mode for this prediction, I think, is for me to discover that someone’s already out there saying it.

        • NonyNony says:

          If that’s the case, by 2014 we’ll have a saying along the lines of “A Democrat is a Republican whose had his right to vote taken away from him by other Republicans”.

          Seriously – the idiotic elites might think that they can pull crap like that off, but one of the quickest ways to get a new Democratic voter in my experience is to have a Republican politician screw them over. Republicans hold grudges and they vote.

      • cpinva says:

        if even one illegal vote is prevented, it’s worth all the legal votes prevented!

        And at that point I would love for a judge to ask the suppression-minded litigant how many legal votes prevented are equivalent to one illegal vote prevented.

  3. thusbloggedanderson says:

    “Renormalization.” That’s really funny, in a very nerdy kinda way. Presumably Richard Feynman is why any of us outside a physics department have even heard of it.

  4. Cody says:

    I do find sick pleasure in using Republican’s broken court ruling against them.

    Also, what are the odds something invoking Gore vs Bush makes it to the Supreme Court, and gets overruled by SCOTUS? Does Bush have to vacate his 8 years of Presidency if they strike down their own ruling on it? Coach Calipari lost all those Final 4s!

    • Uncle Ebeneezer says:

      For once I disagree. There is absolutely nothing sick about your pleasure. This would be like the recent case where Rethugs pushed for a law that would sneak Christianity into schools and then realized that the wording of the law would also allow for the promotion of Islam, Hinsuism, Wicca etc. I categorize it as good clean getting-what-they-deserve.

    • cpinva says:

      in case you hadn’t noticed, the 8 years of bush was vacated, by the GOP, on jan. 20, 2009. never to be seen or heard from again.

      Does Bush have to vacate his 8 years of Presidency if they strike down their own ruling on it?

  5. Jesse Levine says:

    Get ready for more fun and games. If Obama wins a narrow electoral victory, or if he has narrow wins in swing states, I wouldn’t assume there will be no challenges to the electoral vote presented to our wonderful congress.

    • Mr. Upright says:

      Remember, during the 2000 EV count in Congress, several members of the House objected to the Florida EVs. Each time, Gore (as President of the Senate) had to ask the Representative if anyone from the Senate agreed to the challenge. (They did not, because they had already struck the leadership bargain.)

      Care to take bets on which Senators would side with Teabagging House members in challenging the EV count?

  6. Murc says:

    Question. What happens if and when the Supreme Court doubles down?

    By which I mean, a court relying on the Bush v. Gore cites makes its way to them, and they slap it down hard, berating the plaintiff lawyers “did you have a problem understanding the sentence ‘our consideration is limited to the present circumstances’? You were dumb to make it and the circuit courts were dumb to take it seriously. Next time demonstrate the reading comprehension of a fifth-grader.”

    Because I can see them doing that.

    • Wido Incognitus says:

      Yeah, it’s right there in the text. Should they have put it in ALL CAPS, a funny font, or a different color? The question then becomes what authority the Supreme Court has to choose which decisions have precedential value, but other courts do this when they do not have certain opinions officially published. Right?

      • Wido Incognitus says:

        Also, I understand that the authority of judges to apply, clarify and identify the law can include an authority to defer to other people, for example in certain bankruptcy cases.

    • L2P says:

      What, they might yell at the plaintiff’s attorney for bringing it up? So what? We get paid to let judges yell at us.

      And if they yelled at me, off the top of my head I’d say something like:

      1. Although the holding was limited to those circumstances, the current matter is so similar to Bush v. Gore b/c of X that these are essentially the same circumstances;

      2. Regardless, the reasoning is sound. We aren’t citing Bush v. Gore as precedent but for its analysis of voting rights under equal protection. It’s certainly as persuasive as, say, a law review article, right?

      And then they can either engage, which is fine, or keep yelling, which is also fine because whatever judge is yelling will probably be losing the support of the other judges.

      Keep in mind that several of the justices are going to have NO PROBLEM bringing up Bush v. Gore.

  7. wengler says:

    It will never be embraced, quite rightly, by progressives as the right decision, because it wasn’t the right decision. They held that the 14th amendment’s equal protection required that there be no recount of undervotes.

    Because why? Because the Court set an artificial deadline that they then declared could not be met. If they actually believed in their line of reasoning, they would have had to declared the entire election null because the state didn’t have uniform standards of voting to begin with.

    Bush v. Gore is law prescribed by those that were willing to break the law to make sure Bush won. It’s a terrible ruling that should be stricken from the record with those that voted for it being carted off to prison.

    • Scott Lemieux says:

      You’re missing the point. Tushnet is talking about the 14th Amendment holding, not the remedy.

      • mpowell says:

        My response above addresses this, but I don’t understand your claim. It is not an uncommon view that the problem with the decision was the remedy. Thus nothing is proven by liberals agreeing with the 14A holding while maintaining that the remedy was wrong.

      • wengler says:

        The Republicans never had a problem with the 14th amendment in all cases. It’s what makes corporations some of Mitt’s favorite people.

  8. masaccio says:

    The decision may have been correct. It was utterly wrong for the court to take the case because it was purely a matter of state law and had not been finally decided. The did not have jurisdiction and should not have taken the case. None of my colleagues at the time thought the Court would hear the case for that reason.

    That is why I accuse the majority of being political hacks. That, and, of course, the fact that they are political hacks.

  9. dollared says:

    The best case scenario is that the first challenge doesn’t get in front of the Court until after Scalia ascends to heaven.

    It’s his baby. Roberts won’t spend his capital to defend Scalia’s legacy – and he knows how that one sentence undermines the authority of his court. Thomas will be inert as usual, Alito will do as directed by Roberts, and Kennedy will be too embarrassed to invoke the clause.

    So the real risk of the disclaimer being invoked is a rapid rise to the Supremes. Prob

    • cpinva says:

      speaking of inert, has anyone checked lately, to see if thomas is still breathing? seems like that’s something that one of his clerks would be charged with doing, and reporting the results to whoever the current chief justice is.

      Thomas will be inert as usual

  10. Uncle Ebeneezer says:

    Layperson questions: What is the law regarding precedent and whether or not SCOTUS follows it? Are there other rulings throughout history that had the same no-backsies, one-time-only escape clause, or was Bush v. Gore the first?

    • L2P says:

      There is no law regarding precedent at the Supreme Court level; the Supreme Court can follow past decisions, or not, but generally it does follow precedent. Lower courts are bound to follow precedent.

      I don’t know if this precise language has been used before, but similar language isn’t uncommon. It also usually just means that the Court doesn’t have to go that far to distinguish other cases away if it doesn’t want to apply the holding. All holdings, by definition, only apply to the facts of the case, so it’s really more of a signal that the Court was really, really uncomfortable with the implications of its holding.

    • Murc says:

      SCOTUS has to be allowed to ignore precedent; if it didn’t they’d decide cases once and then we’d be bound by them centuries later, with the only way about being constitutional amendments.

  11. Joe says:

    It is not totally clear to me that the broad application actually applies Bush v. Gore since

    The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

    More accurately, unless we pull the quotes out of context (which is done, I’m sure, in other cases too) the rulings seem to be applying broader equal protection principles, in ways that are more consistent with them than the Kennedy/O’Connor opinion in 2000.

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  13. ezra abrams says:

    quote
    A final technique of renormalization is in some ways the most interesting. It involves the generalized invocation of rule-of-law norms, typically in

    maybe i am being snarky, but I wouldn’t trust anyone who writes a sentence like that.
    there have got to be simpler anglo saxonier (to make a palinism) ways of saying this…

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