Tuesday, August 15, 2006

Bush v. Gore, the legal Voldemort

Interesting article by Adam Cohen in the NY Times regarding Bush v. Gore. Cohen's thesis: That courts and academics are wrongly ignoring the holding of Bush v. Gore. Recall that the text of the opinion tried to eschew any precedential value by claiming the ruling was "limited to the present circumstances." Indeed, this is largely the reason many felt the Court was making a politically expedient power grab on behalf of a Republican.

Well, as Cohen points out, you can't really do that (though courts try all the time). In a common law country, like ours is, reasoning applied in case X can also be applied in case Y -- otherwise, the law ceases to have meaning. This is as true for the Supreme Court as any other case.

This leads to some unexpected conclusions regarding Bush v. Gore. To quote Cohen:

The heart of Bush v. Gore’s analysis was its holding that the recount was unacceptable because the standards for vote counting varied from county to county. “Having once granted the right to vote on equal terms,” the court declared, “the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.

In other words, the heart of the decision leads to what some might call a "progressive" outcome -- that states should have uniform standards for elections. Now, I don't particularly care about election standards (possibly because it's easy for me to vote, but also because most elections aren't that close) but I find it interesting that, nestled within one of the most reviled Supreme Court decisions of all time, one finds a very unexpected holding.


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