Wednesday, October 28, 2020

Could Bush v. Gore Happen Again? -- by Jeff Hoagland

As the 2020 election nears, Americans wonder if their votes will count. Bush v. Gore showed the country that the Supreme Court will intervene in elections and indirectly decide the outcome. Indeed, Bush v. Gore could happen again. [1] That case is precedent, and while it was limited by the particular facts, States could still offend its Equal Protection standard. The outcome of such challenges is difficult to predict, because that standard could be broad or narrow. The Court held votes must be recounted using uniform standards, so that each vote is judged by the same standard. However, that holding leaves open the question of just how much variation violates Equal Protection.

States have replaced punch card machines, thanks to the Help Americans Vote Act. [2] But if Trump sues, an election-deciding ruling is possible, depending on how narrowly the Court reads Bush v. Gore. If the court has a broad view of the holding, then Congress’s and the States’ reform efforts might not be enough to avoid and Equal Protection violation. And once the Court has found a violation, it could invalidate a recount. Again.

The Supreme Court’s response is difficult to predict because lower Circuit Courts have applied the holding broadly and narrowly. The original decision declared arbitrary judgments of votes unconstitutional. It noted three different Equal Protection violations. First, in different counties, canvass boards used different standards to recount votes. [3] Second, even within the same county, canvass boards used different methods. [4] And third, canvass boards changed methods partway through the recount process. [5] The canvass boards lacked uniform standards for what counted as a legitimate vote, and so violated the standard of, “having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”[6] Of particular concern to the Court was how, “the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.” [7] A diversity of procedures meant one flawed ballot, with a hanging chad, would be counted in one county but not in another, and not simply because of a difference in application, but a difference in agreed upon and standard procedures within the canvass boards.

Broader interpretations have struck down various arbitrary uses of machines and voting deadlines. Courts struck down the selective use of punch card machines in the Sixth and Ninth Circuits [8], citing Bush v. Gore. The Sixth Circuit also has cited Bush v. Gore to support striking down an exception for military personnel to vote later than the general population. [9] However, such decisions may not prove persuasive to the current Supreme Court.

Despite Courts’ inclination to stay out of election disputes [10], Circuits have arguably extended this standard to include the statistical likelihood of machine error. They have ruled Bush v. Gore covers using different types of voting machines in different counties, because differences in error rates mean a different standard is applied to different votes. So if one county uses punch cards, known to have higher error rates, and other counties do not, then plaintiffs can sue, claiming the government violated their rights, since a different, and unequal, standard and method was applied. The Bush v. Gore Court was not concerned with statistical rates of error during the initial count, only uniform standards for hand recounts. So it remains unclear if the Supreme Court would rule an election challenge valid based solely on statistical error rates. [11]

Other Courts have applied Bush v. Gore narrowly, preventing plaintiffs from suing to invalidate touch screen voting, when those plaintiffs claimed such votes could be recounted less effectively. [12] The Eleventh Circuit cited Bush v. Gore while upholding the use of touch screen voting machines, despite their different and possibly flawed recount procedures. [13] It held that even though canvass boards would have more difficulty getting an accurate recount on this type of machine, there was no Due Process or Equal Protection violation, since there is a uniform standard for recounts for that particular type of machine. Yet it remains an open question how the Supreme Court would rule, since it is not bound by Circuit Court decisions.

If the Supreme Court follows the broader reading of the Circuit Courts, reforms following Bush v. Gore may be inadequate. After the decision, Florida passed the Florida Election Reform Act of 2001, [14] which banned punch card voting machines and allowed for only two types of machine: touch screen and scanner. But Florida may not be the swing state that decides the election. It wasn’t in 2004. The other swing states with fewer state-level reforms will have to rely on the federal Help America Vote Act, which provided funding for new voting machines, centralized voter rolls, set standards for voter list maintenance, and created the Election Assistance Commission (EAC). The EAC has had difficulties from partisanship, resulting in the appointment of a commissioner with no experience administering elections, and has not changed the strange situation of eighty percent of voting machines being administered by three vendors. Almost a third of all voting machines could be compromised by hackers in one attack. In other words, the United States regulates colored pencils more stringently than its election infrastructure. Today different states still use a variety of methods to count votes. If Trump presented evidence that one machine type misread votes at a higher rate than another, the Supreme Court could follow the Circuit Courts and find an Equal Protection violation.

Despite the concern for different recount standards, thus far no one has used Bush v. Gore to address racial disparities in voting standards. At the center of this debate is whether racial disparities in rejecting mail in ballots can be considered an Equal Protection issue. Racial disparities appear when mail in ballots are counted. Right now, mismatched signatures can be rejected without informing the voter, according to the Fifth Circuit, but the Pennsylvania Supreme Court disagrees, and says the voter must be informed and given a chance to correct the mistake. Advocacy groups have filed lawsuits, but the racial disparity is part of a larger claim of arbitrary and capricious treatement.

Bush v. Gore is silent on what degree of difference triggers an Equal Protection violation, so the decision set no clear standard. Yes, the Court decided the Florida Supreme Court did not “satisfy the minimum requirement for nonarbitrary treatment of voters,” by having no uniform recount standard at all, but it elided just how specific the rules must be. Asking how specific the rules must be might sound pedantic, but simply having some uniform standard is inadequate. The Court specified the standards were “necessary to secure the fundamental right,” so presumably the uniform standards must be specific enough to secure for each voter the fundamental right of equal participation.  

The standard under an Equal Protection analysis is “one person, one vote,” which means each person’s vote has to count equally. More specifically, each person’s vote must be judged according to a standard equally applied to all votes. So long as the standard is the same, differences in application are presumably not an Equal Protection violation. But under that uniform set of rules, how specific must they be to avoid violating Equal Protection? We’ll see.

[1] Two, soon to be three, Supreme Court Justices worked on the Bush legal team during Bush v. Gore. Joan Biskupic, Supreme Court is aobut to have 3 Bush v. Gore alumni sitting on the bench, available at: https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html

[2] 52 U.S.C. §§ 20901-21145 (2002)

[3] 531 U.S. 98 (2000)

[4] Id.

[5] Id.

[6] Northeast Ohio Coalition v. Husted, 696 F.3d 580 (6th Cir. 2012) (citing Bush v. Gore, 531 U.S. 98, 104 (2000))

[7] Id.

[8] Stewart v. Blackwell, 444 F.3d 843 (6th Cir. April 21 2006). (superseded by Stewart v. Blackwell, 473 F.3d 692 (6th Cir. Jan 12 2007); Southwest Voter Registration Educ. Project v. Shelly, 344 F.3d 344 (9th Cir. 2003) (“The Plaintiffs’ theory is the same, that using error-prone voting equipment in some counties, but not in others will result in votes being counted differently among the counties.”).

[9] Obama for America v. Husted, 697 F.3d 423 (6th Cir. 2012).

[10] See Bennett v. Yoshina, 140 F.3d 1218, 1226-27 (9th Cir. 1998) (“mere fraud or mistake will not render an election invalid. However, a court will strike down an election on substantive due process grounds if two elements are present: (1) likely reliance by voters on an established election procedure and/or official pronouncements about what the procedure will be in the coming election; and (2) significant disenfranchisement that results from a change in the election procedures.”).

[11] Though this is to protect individual voters, not simply a judicial regulation of election administration. See Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006).

[12] Wexler v. Anderson, 452 F.3d 1226 (11th Cir. 2006).

[13] Id.

[14] Jon Mills, Reforms in Florida after the 2000 Presidential Election, 13 U. Fla. J.L. & Pub. Pol’y 69 (2001).

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