In Parts 1 through 3 of this bog, we examined what Bush v Gore actually said.
In this Part 4, we examine how the holding -- the dictum -- and the analysis in Bush v Gore, and the continuity in and changes in the composition of the Court since 2000 (a remarkable four seats have changed hands since 2000), might apply to the 2012 Presidential election.
We are going to break this into two separate posts -- Parts 4A and 4B -- because of length.
First, if the 2012 election is NOT extremely close, then Bush v Gore just will not matter. So what if 500, or 5000, or even 50,000 disputed ballots are cast in a state, if the preliminary vote difference between the major candidates is, respectively, 600 or 6000 or 60,000? So what if the electors in three states having an aggregate of 26 electoral votes are disputable, if, disregarding those states, the leading candidate has amassed 300 electoral votes from other states? In either scenario, the race has been determined, and the outcome of the votes in those questionable states will not affect the result of the election, and courts likely will just dismiss suits brought to contest those inconsequential contests.
But if the election is very close -- electoral vote close, not popular vote close -- then Bush v Gore will dominate the national conversation for the rest of November and perhaps longer.
Already, the latter path appears more likely to develop. On our Facebook and Twitter sites, we've linked to a few of the reports popping up in the past few days on major media sources of lawsuits already filed in courts across the nation and of growing mobilizations of lawyer teams preparing for courtroom contests over voting procedures, tabulations and recounts.
In this final two-part blog of the series, we will focus on just four issues brewing pre-election in four states, and how Bush v Gore may answer or not answer the issues raised:
1. Ohio -- Obama supporters earlier this year successfully invoked Bush v Gore in litigation over early voting; this case may be most ripe for appellate argument, because it already has gone to and been ruled upon by the federal Sixth Circuit Court of Appeals. The Democrats prevailed in their efforts to override state officials' interpretations of state voting laws and pragmatic solutions to the costs and logistical differences between urban and rural early and absentee ballot voting, by pushing the Equal Protection argument in Bush v Gore to the next, somewhat logical step, that whatever the procedures in any portion of a state, the exact same procedures must apply in every part of the state. Bush v Gore expressly restrained its decision from going this far, but its underlying logic on the Equal Protection clause implies that the Equal Protection Clause requires that all procedural rules be identical and applied in exactly the same manner, regardless of the actual circumstances among the various polling locations. In addition to doubt about the Sixth Circuit's reading of Bush v Gore, this raises the possibility of resurrecting, to the detriment of the Obama side, the losing issue in Bush v Gore: Article II and 3 USC 5: can the state's executive branch modify rules enacted by the state legislature? Probably yes, if the legislature delegated to the executive branch the power to make such choices; probably no, without an explicit delegation.
An additional Ohio problem, much written about, concerns Ohio's generous distribution of absentee ballots, perhaps 15% of which were reportedly not actually used. If a potential voter who received an absentee ballot tries to vote in person on Election Day, the precinct must allow him to cast a provisional ballot, but it will be unknown for about ten days after Election Day whether or not that provisional ballot will be counted; that is because local election officials must wait to learn whether an absentee ballot cast by the same voter arrives by mail after Election Day.
2. Florida -- Florida, again! Long lines on the final day of early voting frustrated many would-be voters, and the Obama partisans in Florida filed suit against the Governor demanding that early voting hours and days be added. If the Governor grants the demands, what is the status of votes cast in the "Extra Time"? Unlike Ohio, these election procedure changes have been effected only a few days prior to Election Day, and then only in response to what appears to be more "mob action" than reasoned consideration. And again, does the Governor's office, instead of the Secretary of State or another executive office, have valid delegation of authority from the legislature to make such changes? How does the Ohio decision affect this analysis -- if it is right, and the Equal Protection Clause requires identical voting procedures throughout a state, how could the Governor extend voting hours and days in a populous county like Dade but not in a rural county in the Panhandle? Wouldn't he be denying the voters upstate the same voting privileges enjoyed in Miami?
[Continued in Part 4B]