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:

[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).

October 28, 2020 | Permalink | Comments (0)

Thursday, October 8, 2020

Animus in Immigration. The More Things Change, The More They Stay The Same. By Chris Ogolla

In September 2020, the Department of Homeland security proposed rule that would set time limits of up to four years for foreign student visas. The proposed rule will require all F, J, and I non immigrants who wish to remain in the United States beyond their specifically authorized admission period to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP at a port of entry. The Department’s rationale is that it is concerned about the integrity of the programs and a potential for increased risk to national security.[i] Even though the majority of people who overstay their visa in the US are from China, India, Brazil, and Canada, the proposed rule targets mostly students from African countries. Which begs the question, is there animus towards people from certain parts of the world coming to the U.S.? A few examples might illuminate this.

On June 18, 2020, the  US Supreme Court, in Department of Homeland Security v. Regents of University of California  591 U.S.__ (2020)  ruled that the Trump administration’s attempt to end Deferred Action For Childhood Arrivals (DACA) violated the Administrative Procedures Act. This part of the opinion garnered a majority vote (Chief Justice Roberts was joined by Justices Breyer, Kagan Ginsburg and Sotomayor). More pertinent, those challenging the rescission had argued among others, that rescission violates the equal protection guarantee of the Fifth Amendment in that the Executive was motivated by animus towards a certain ethnic group (read Hispanics). Chief Justice Roberts rejected the equal protection claim, and was joined in part by Justices Alito, Gorsuch, Kavanaugh and Thomas.

The history of immigration in this country is full of animus towards certain ethnic groups. For example, during the 1800’s, Congress passed several Chinese exclusion acts that prevented several Chinese laborers from immigrating to the U.S. In 1879, the convention which framed the present constitution of California, presented a memorial to Congress stating among others that “the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization; that the discontent from this cause was not confined to any political party, or to any class or nationality, but was well nigh universal; that they retained the habits and customs of their own country, and in fact constituted a Chinese settlement within the state, without any interest in our country or its institutions; and praying congress to take measures to prevent their further immigration.”[ii]

In the early colonial period, anti-Catholicism was the prevalent form of nativism. Catholics were routinely barred from entering certain colonies, holding public office and voting.[iii] Sociologist and nativist Edward Alsworth Ross described Jews as “polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain” He described Italians as possessing a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces…[iv]

Writing in the Washington Examiner in 2006, Former Colorado Governor Richard Lamm described his eight reasons on how America was being destroyed. Top of the list,? immigration perils of multiculturalism.

In his presidential primary race in 1992, Pat Buchanan ran on America first and anti-immigration platform. No less than Donald Trump wrote an op-ed piece in the LA Times in October 31 1991 attacking Pat Buchanan. He titled it “Buchanan is Too Wrong To Correct.” He called Buchanan dangerous. Trump described Buchanan as follows “On slow days, he attacks gays, immigrants, welfare recipients, even Zulus. When cornered, he says he’s misunderstood.”[v] Trump later denounced Buchanan telling reporters, “We must recognize bigotry and prejudice and defeat it wherever it appears.”[vi]

In 2015, President Trump kicked of his presidential campaign by denigrating Mexicans. “They are not our friend, believe me “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” [vii]

In March 9, 2016 on CNN, the President said, “I think Islam hates us. There’s something there that — there’s a tremendous hatred there. There’s a tremendous hatred. We have to get to the bottom of it. There’s an unbelievable hatred of us.”[viii]  Sound familiar?

On March 6, 2017, Trump issued a travel ban (Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats) for citizens from six majority-Muslim countries. The Proclamation was challenged by several groups, and eventually upheld by the Supreme Court in Trump v. Hawaii, 138 S.Ct. 2392 (2018). In rejecting challengers’ argument that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims, Chief Justice Roberts responded “The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” [ix]

In these cases, the Chief Justice often avoids commenting on the meat of the issues by declaring that is not what the court is deciding. In Trump v. Hawaii, he wrote that whether the proclamation was fair or not, is not for the Court. In Department of Homeland Security v. Regents of University of California, he wrote that in holding the administration rationale for ending the program unreasonable, the court was not endorsing it.

Because the Supreme Court was deferential to the Executive in both Trump v. Hawaii and Department of Homeland Security v. Regents of University of California, it is likely that animus towards certain nationalities in immigration policy will continue, unabated by the courts. The more things change, the more they stay the same.


[i] 85 Fed. Reg. 60526 (September 25, 2020).

[ii] Aleinikoff et al.,  Immigration and Citizenship: Process and Policy, 9 (8th ed. 2016).

[iii] Id., at 582.

[iv] Id., at 9.

[v] Donald J. Trump, Op-Ed, Buchanan is To Wrong To Correct, LA Times Oct 31, 1999.

[vi] Tim Alberta, The Ideas Made It, But I didn’t, Politico, May/ June 2017

[vii] Katie Riley, Here Are All the Times Donald Trump Insulted Mexico,, Aug. 31, 2016

[viii] Jenna Johnson and Abigail Hauslohner, I think Islam hates us’: A timeline of Trump’s comments about Islam and Muslims, Wash. Post. May 20, 2017

[ix] Trump v. Hawaii, 138 S.Ct. 2392, 2420 (2018).

October 8, 2020 | Permalink | Comments (0)

Monday, October 5, 2020

Ruth Bader Ginsburg's Legacy of Empathy and Courage


Justice Ruth Bader Ginsburg’s life embodies the best of America. Her experiences of being a first-generation American, a religious minority, and a woman who overcame discrimination informed her jurisprudence.

The grandchild of Jewish immigrants from Russia, Ginsburg understood how fear of violent pogroms caused her family to leave their home, along with hundreds of thousands of Jews who immigrated to the United States in the early 20th century. She also appreciated the hope for a better life America offers its constant stream of newcomers.

Ruth Bader Ginsburg, Feminist Gladiator - The Atlantic

Despite the discrimination she faced, America was a stark contrast with Russia where her grandfather was prohibited from attending school and working in certain occupations because he was Jewish.

Our celebration of the legacy of the first Jewish American woman to serve on the US Supreme Court, thus, speaks volumes about America’s potential for progress.

But Ginsburg knew her success was more an exception than the rule. Her life experiences constantly reminded her that the gulf between America, the ideal, and America, the reality, was wide. During her Senate confirmation hearing in 1993, Ginsburg candidly stated, “I am alert to discrimination. I grew up during World War II in a Jewish family. I have memories as a child, even before the war, of being in a car with my parents and passing a place in [Pennsylvania], a resort with a sign out in front that read: “No dogs or Jews allowed.”

For too many African Americans, Jews, and women of Ginsburg’s generation, legal exclusion from certain educational institutions, neighbourhoods and professions was a daily reminder there were two Americas. One for the insiders, and another for outsiders. This reality influenced how she practised her profession.

In a 2018 interview, Ginsburg admitted that “the sense of being an outsider – of being one of the people who had suffered oppression for no . . . no sensible reason . . . it’s the sense of being part of a minority. It makes you more empathetic to other people who are not insiders, who are outsiders.”

Coupled with her Jewish upbringing that instilled in her a firm belief in the fight for justice, Ginsburg’s outsider status among the first cohort of female students at Harvard Law School and few female law professors nationwide in the 1960s reminded her daily how law perpetuated societal discrimination. Accordingly, she committed her life’s work to dismantling the legal structures that systematically denied women and minorities opportunity and agency.

It should come as no surprise that Ginsburg’s work has inspired a generation of people who experience outsider status in the US, including Muslims. For the past 20 years, overt anti-Muslim racism has been rampant. Ranging from protests calling on Muslims to get out and “go home” to state legislation seeking to deny Muslims the right to practice their religion as part of an “anti-Shariah” national campaign, Muslims have been as openly condemned as Jews were a century ago.

When the Supreme Court in the case of Hawaii v Trump upheld President Donald Trump’s executive order imposing a ban on Muslim immigration, Ginsburg joined Justice Sonia Sotomayor in issuing a scathing dissent.

The two called out the majority for “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.” They boldly compared the upholding of the Muslim ban to the court’s shameful 1944 ruling in the Korematsu v United States case which upheld the internment of Japanese Americans and immigrants under the pretext of national security during World War II.

Ginsburg knew all too well the grave dangers of a candidate for president calling for a “total and complete shutdown” of an entire religious group. In a July 2016 interview with the New York Times, she said: “I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our president.” As America experiences historic levels of political strife and polarisation – due in large part to Trump’s divisive rhetoric and policies – Ginsburg’s concerns have proven prescient. 

While her life and legacy remind us of America’s tremendous potential for justice and equality, the political fight over her replacement is an ominous warning of the fragility of the American project. Heightened political polarisation, toxic masculinity, and the resurgence of white nationalism threatens the values for which Ginsburg stood – the rule of law, equality, and opportunity.

As we mourn her death and honour her legacy, let us remember her words of wisdom before the Senate 24 years ago, “What has become of me could happen only in America. Like so many others, I owe so much to the entry this Nation afforded to people yearning to breathe free.”

It is now our turn to act on the courage of our convictions to continue the work she began.

-- Sahar Aziz, Professor of Law, Chancellor's Social Justice Scholar, and Director of the Center for Security, Race and Rights at Rutgers University Law School (Newark)

This article was originally published here.


October 5, 2020 | Permalink | Comments (0)