Bush v. Gore Didn’t Self-Destruct and is No Longer ‘Radioactive’
The U.S. Supreme Court intended to limit the precedential value of its decision in Bush v. Gore, but courts are citing it anyway.
The New York Times story on the development starts out this way: “The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in Mission: Impossible. It was meant to produce a president and then self-destruct.”
A narrow reading of the controversial opinion, the Times says, is that the Florida court-supervised state recount could not use new and vague standards for treating the ballots without running afoul of the due process clause.
Now courts are citing the decision in other election cases, New York University law professor Samuel Issacharoff tells the Times. “Bush v. Gore introduced an important idea,” Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and that those rules need to be known up front.”
For a while the decision was so controversial it was considered “radioactive,” said Loyola law professor Richard Hasen. “It hasn’t been cited even in cases where it should have been cited,” he told the Times. But that is changing.
The decision was cited in briefs submitted to the Minnesota Supreme Court in a recount lawsuit in the race between Norm Coleman and Al Franken, the Times story says. And two different panels of the 6th U.S. Circuit Court of Appeals have also relied on the decision.
The 6th U.S. Circuit Court of Appeals cited the decision last month when it allowed a challenge to Ohio voting systems, the Times story says. According to the 6th Circuit panel, the decision establishes the principle that a state granting the right to vote on equal terms may not “by later arbitrary and disparate treatment, value one person’s vote over that of another.”
The other 6th Circuit opinion, issued in 2006, was later vacated as moot, the story says. But the majority was adamant in explaining why it was relying on the decision. “Murky, transparent, illegitimate, right, wrong, big, tall, short or small,” the decision said, “regardless of the adjective one might use to describe the decision, the proper noun that precedes it—‘Supreme Court’—carries more weight with us.”
