Will Bush v. Gore Save Barack Obama?

Who's winning, who's losing, and why.
Oct. 26 2012 5:42 PM

Will Bush v. Gore Save Barack Obama?

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

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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.

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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.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.