Rick Hasen writes in Slate how Bush v. Gore‘s equal protection holding could benefit President Obama’s reelection effort, especially in Ohio.
For years, voting rights advocates have tried to make lemonade from lemons, arguing that the Equal Protection holding of Bush v. Gore should apply more broadly to require equality and uniformity in conducting elections. Until recently, these attempts have mostly met with failure, with courts reading the case’s holding narrowly. Some argued that at most the opinion would apply to require uniform rules for conducting election recounts. So poorly had Bush v. Gore fared in the lower courts—the Supreme Court has never cited it for any purpose since it was decided—that I declared Bush v. Gore’s untimely death in 2007.
But in the last few years the opinion has been resurrected by the United States Court of Appeals for the 6th Circuit, the federal appellate court that includes Ohio. In one recent case, a federal judge required Ohio to restore the last weekend of early voting, relying in part on Bush v. Gore’s equal protection principles. The judge suggested that once Ohio had added the early voting days, it couldn’t take them away, or at least couldn’t take them away from everyone except military voters.
The 6th Circuit appeals court agreed. One of the appellate judges went so far as to say that the reason Ohio could not take the early voting days away is because the state had a bad history of long lines at the polls in 2004, and the early voting in 2008 seemed to clear up this problem. That was an incredibly broad extension of equal protection principles, well beyond even generous readings of the Bush v. Gore precedent.
For more on how Bush v. Gore has encouraged federal courts to policy election administration more agressively, see this article by Dan Tokaji and Owen Wolfe from the Case Western Reserve Law Review symposium on Baker v. Carr and this “Below the Line” podcast on the article with commentary from Hasen and Brad Smith.