Within the last ten days, in decisions about the use of voting machinery and the requirement of photo identification, election law observers could relive past Presidential campaign controversies and look forward to the next.  In Stewart v. Blackwell, the Sixth Circuit reignited the old feud about the meaning of Bush v. Gore, holding that it applied to invalidate the variable deployment across Ohio counties of punch card and optical scan voting technologies.  Indiana Democratic Party v. Rokita   advanced the depressingly fashionable claims about "voter fraud" in upholding Indiana’s implementation of a photo identification requirement for in-person voting.  In this last case, putting a fine point on the matter, the Department of Justice followed a few days later with pre-clearance of a Georgia ID requirement that had been overhauled in the wake of litigation. 

     So there they were: voting machinery and residual votes and the delphic pronouncements of Bush v. Gore, all of which haunted the election law debates of 2000 and 2004; and now the very current argument that the problem is more chicanery than machinery, with the state cast as the agent for protecting against voting by impostors.  Neither case will represent the final word, but when considered together, with a word from DOJ for good measure, they offer some insights into the state of election "reform" as the next Presidential campaign cycle nears. 

     The standard of review.  In each case, there was an effort to sort out when strict or the lesser "rational basis" standard of scrutiny applied.  In neither case was there much success in this effort.  In Stewart, the court—perhaps realizing that the effort was largely beside the point—concluded that the decision would be the same without regard to the choice of standards.  This is likely true of any major election law case.  And it will often be equally true that "standard of review" choices in such cases may follow rather than dictate judgments about the proper outcome.

     The question of "evidence."  In both cases, there was data to go on, but there followed the usual argument about its adequacy and significance.  IDP threw out the Democratic Party’s expert, finding his analysis of ID effects on disadvantaged populations to be both "incredible and unreliable," IDP at 43, but at the same time, it was satisfied with the Carter-Baker’s conjectural proclamations about fraud and with even John Fund’s more tendentious, makeshift claims.  While the court noted defendants’ concession that "the State of Indiana is not aware of any incidents of persons attempting to vote, or voting, at a voting place with fraudulent or otherwise false identification," id. at 21, the court had no patience for the suggestion that these identification requirements, applied to in-person but to not to absentee balloting, might present obstacles to voting by minorities, elderly, disabled and low-income voters.

     The motivation of the government.  In Stewart, the government pleaded cost, among other justifications, for inaction in the face of its own admission, repeatedly cited by the Court, that punch card technologies produce considerable disenfranchisement through no fault of voters.  ("The State of Ohio concedes that punch-card technology is substandard…’[t]he evidence is overwhelming that thousands of Ohio voters have been disenfranchised by antiquated voting equipment….’"  Stewart at 23).  The majority concluded that the government could not overcome its own admission against interest.  IDP acknowledged a similar admission by the State of Indiana:  that there was no evidence of voter impersonation in the state.  But it was prepared to credit Hoosier lawmakers with good faith, since, however little they could say about their own state, they might be troubled that fraud detected in other states might spread to their borders. 

     Each of the decisions involved a state’s conduct in evading responsibility for its own failings:  Indiana’s imposition of ID requirements, because it could not manage inflated voter rolls; and Ohio’s willingness to tolerate different technologies, to the detriment of voters stuck with the most deficient ones, because it could not manage the cost or administrative will to provide reliable machinery on a uniform basis.  Unlike IDP, Stewart declines to make the voter pay the price for administrative lassitude or misfeasance.  It quite correctly points out that "governments almost always attempt to justify their conduct based on cost and administrative convenience, but the State’s reliance on these factors is not necessarily rational…." Id. at 25.  And too often, the reliance is not in good faith.

     Bush v. Gore.  This was the central issue in Stewart (the equal protection claims in IDP lay somewhat at the periphery, on the questions of whether the State could justifiably carve out an exception from identification requirements for absentee voting or for nursing home residents.)  But it is hard to say that this case did not give birth to election reform in its current guise—ambitious in its reach, political in character and doctrinally (at least on the Equal Protection question) indecipherable—and so in its way, while it bore directly on the outcome in Stewart, any election law case seems to be decided in its shadow. 

     Stewart does not offer a fully satisfying debate on this issue:  the majority and the minority argue, for example, over the meaning of the Supreme Court’s refusal so far, in any election law case, to even refer to Bush v. Gore.  They also clash over Rick Hasen’s position on this issue, and on this point, the majority wins a closely fought round:  the dissent claims Hasen for its own side, citing him for the proposition that Bush v. Gore lacks the force of true precedent, but it overstates its case, largely by selective use of his writing on the subject. 

     It is not a bad time, however, to review whether Bush v. Gore must be relegated to the status of a disastrous Broadway show, required to close the morning after its opening.  The minority cites Hasen on three reasons to question the case’s precedential value:  its limiting language, its lack of serious analysis, and its apparent inconsistency with the majority’s established jurisprudence.  Only the first of these points really counts in an appraisal of this case as precedent, since the other two are political points that hardly distinguish this case from others suffering from superficial (or disingenuous) analysis or from inconsistency with precedent.  Even the limiting language only goes so far to insulate the case against future use.  The Court was speaking of the application of the equal protection principles to a state-ordered recount, and the words of limitation—that the decision was "limited to the present circumstances"—can be taken as nothing more than the caveat that each case has to be considered on its own facts, carefully.  530 U.S. 109 (2000).
 
     This is especially because, as the Court says in the same breath, that equal protection cases "present many complexities."  Id.   By saying this, the court is not saying anything definite—anything at all—about how these principles would be applied to the state’s willful disregard of evidence amassed since that time about voting technologies.  Indeed the majority seemed to assume that voter error, not erratic machinery, was at fault.  Much has happened since to retire this assumption.  And it is hard to imagine that if a case like Stewart came before the Court, presenting a different question of uniformity on a very different factual record, the Court could plausibly say that Bush v. Gore was not relevant.  It might not be dispositive, but it would surely be relevant. 

     Indeed, the new Chief Justice said as much, at his confirmation hearing:  "While the Court in Bush v. Gore stated that its 'consideration is limited to the present circumstances,' I believe that statement was not meant to deprive the decision of all precedential weight."  And so, the now Chief Justice stated: "the equal protection principles at issue in Bush v. Gore may be implicated in future cases."  Richard L. Hasen, "No Exit?  The Roberts Court and the Future of Election Law," forthcoming 57 S.C. L. Rev. ___ (Mar. 2006).  

     Conclusion.  The Stewart court, relying on Bush v. Gore, decided the case before it correctly.  In the words of Stewart: "[I]t would be odd indeed for the Supreme Court to have held in Bush v. Gore that the Equal Protection Clause protects the right to have one’s vote counted properly during a recount, but for us to conclude that the Clause does not cover the right to have one’s vote counted properly in the first instance."  Stewart at 22 n. 17.

     IDP was not confronted with controversial precedent of this high order but, substituting conjecture for facts and misapplying the available law, it decided its case incorrectly. 

     Score one for Bush v. Gore.  It may not have made much sense, as written, and the politics were ghastly; but it may prove useful after all.

Bob Bauer