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Wednesday, March 28, 2007

Hasen on the Death of Bush v. Gore

Do take a look at Rick Hasen's new piece, The Untimely Death of Bush v. Gore, up on SSRN.  It is a very helpful discussion of what could have been -- but what was not -- wrought from the equal protection rationale of the case, its self-conscious refusal to be precedent notwithstanding.  Here's a taste:

Now, a little over six years later, Bush v. Gore is dead. The death did not
come in the usual way that Supreme Court cases die: through outright or sub
silentio reversal in a later case. Indeed, no Court opinion—majority, concurrence
or dissent—has cited the opinion since it was decided. But election law
developments in this relatively short time since Bush v. Gore show that
conservative federal circuit court judges so far have been able to block the
“lemonadization” of Bush v. Gore. Worse, the Supreme Court’s recent opinion in
Purcell v. Gonzales, allowing Arizona to implement (at least temporarily) its
controversial voter identification law, shows that the Court itself has not
understood the problems it caused with its Bush v. Gore opinion. The Court’s
decision to quickly issue an opinion in Purcell, the casual empiricism of its
unanimous opinion, and its discouraging of pre-election litigation all are
exceedingly troublesome.

By stating Bush v. Gore is “dead,” I am not making the claim that the
Supreme Court will never rely on the case as precedent in an election
administration dispute. I mean instead that the promise of election reform
inspired by the case is now dead.

As Larry Solum would say in blue, Highly Recommended!

Posted by Ethan Leib on March 28, 2007 at 12:54 PM in Article Spotlight | Permalink


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» Lemons from Lemonade? from Election Law
After Ethan Leib over on Prawfsblawg graciously recommended my draft on The Untimely Death of Bush v. Gore, Orin Kerr and I have been discussing in the comments to that post the question posed by Orin: "hen was the promise... [Read More]

Tracked on Mar 29, 2007 8:59:17 AM


We're actually not so far apart. I was never a "lemons from lemonade" person on Bush v. Gore. As I explain in the paper:
Perhaps believing in the civilizing effect of hypocrisy, some scholars predicted that the Court would eventually endorse the use of Bush v. Gore as precedent to bring greater equality to the nuts and bolts of election administration. Thus, in a New York Times oped written just two days after the Court’s opinion, Sam Issacharoff wrote that the Court has "asserted a new constitutional requirement, to avoid disparate and unfair treatment of voters. And this obligation obviously cannot be limited to the recount process alone...The Court's new standards may create a more robust constitutional examination of voting practices." Steve Mulroy expanded on this point in a law review article, asserting that, while liberals may have been disappointed with the result in Bush v. Gore, its broadly written equal protection holding meant it was possible to make "lemons from lemonade."
My own view in 2001 was "far less sanguine" but not quite as dire as those reading the case as a one-day-only ticket. Though I believed that the Court would "ultimately limit Bush v. Gore to its facts," I also thought that "[l]ower courts will first apply Bush v. Gore as precedent to cases coming before [them… so that] there is at least a window of time in which the case may serve as valid precedent." I further thought that lower courts would view Bush v. Gore in Rashomonic fashion, with liberal judges embracing a more expansive equal protection reading of Bush v. Gore and conservatives embracing a more restrictive reading of the case. In that window of time, I believed that public interest litigants appearing before sympathetic judges could use the logic of the case to make conditions fairer for voters who, because of intentional election administrator choice or mismanagement, would be much less likely to be able to cast a valid vote than other voters in the jurisdiction.
Indeed, at first some lower courts played this enabling role by reading Bush v. Gore to require greater equality in the administration of elections. Sometimes the threat of litigation was enough; to avoid a probable adverse judgment the California secretary of state settled litigation brought by Common Cause to bar use of punch card voting machines. But that initial success has fizzled, at least as evidenced by the "punch card" cases. As these cases reached the en banc process in circuit courts, conservative judges have blocked Bush v. Gore’s lemonadization.

Posted by: rick hasen | Mar 28, 2007 11:41:14 PM

You're correct, my mistake. Oh, so it's only medium strong, not particularly strong.

Posted by: Orin Kerr | Mar 28, 2007 10:17:56 PM

It was vacated on mootness grounds, Orin.

Posted by: rick hasen | Mar 28, 2007 10:01:03 PM


Funny, I tend to think the existence of a 2-1 Sixth Circuit opinion adopting a theory that is later vacated en banc is particularly strong evidence that the theory was never a realistic possibility.

Posted by: Orin Kerr | Mar 28, 2007 9:42:17 PM

Rather, as Larry Solum *does* say in blue, 'Highly Recommended!': http://lsolum.typepad.com/legaltheory/

Posted by: Patrick S. O'Donnell | Mar 28, 2007 8:51:45 PM

Thanks to Ethan for bringing the draft to others' attention. To answer Orin's question regarding a realistic possibility, I'd suggest looking at the Sixth Circuit's 2-1 opinion in Stewart v. Blackwell (since vacated by an en banc grant followed by dismissal as moot) in which the majority of the panel indeed adopted a lemons from lemondade approach to whether punch card voting violated the equal protection right in Bush v. Gore. That case, as well as the Ninth Circuit's punch card case, are discussed in the draft.

Posted by: rick hasen | Mar 28, 2007 7:28:19 PM

I fixed the comment to reflect the best course in the great hoist/foist debate when it comes to petards. See, e.g., Hamlet, Act III, scene IV. My mistake -- or was it just a typo?

It seems that the real debate is over the right preposition to use: "with his own petard" is the Hamlet quote -- but courts are all over the place on that one. One can find "on his own petard," "by his own petard," "onto his own petard," etc.

Posted by: Ethan Leib | Mar 28, 2007 5:58:22 PM

I don't get what they mean by Death of Bush vs. Gore...

Posted by: houseofpolitics | Mar 28, 2007 5:56:07 PM

Don't people/things get "hoisted" rather than "foisted" on their petards?

Posted by: X | Mar 28, 2007 5:45:44 PM

Don't I know it?!

Posted by: Ethan Leib | Mar 28, 2007 5:30:33 PM


Whether law professors are keen on something seems quite different from whether it was ever a realistic possibility.

Posted by: Orin Kerr | Mar 28, 2007 5:26:37 PM

I'm sure you heard that certain election law scholars were very keen to hoist the Court on its own Bush v. Gore petard. (I think that cliche works here, though the paper invokes the "make lemonade from the lemons" theme).

Some of the examples Rick cites are:

Samuel Issacharoff, The Court’s Legacy for Voting Rights, N.Y. TIMES, Dec. 14, 2000, at A39; and Steven J. Mulroy, Lemonade from Lemons: Can Advocates Convert Bush v. Gore Into a Vehicle for Reform?, 9 GJPLP 357 (2002). Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 49 (2004) (advocating a reading of Bush v. Gore as a case about control of excessive
partisan manipulation of the electoral process); Daniel P. Tokaji, First Amendment Equal Protection: In Discretion, Inequality, and Participation, 101 M.L.R. 2409 (2003).

Posted by: Ethan Leib | Mar 28, 2007 5:18:48 PM

"I mean instead that the promise of election reform inspired by the case is now dead."

When was the promise of election reform inspired by that case ever alive?

Posted by: Orin Kerr | Mar 28, 2007 5:01:14 PM

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