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Bush v. Gore

April 1, 2018

BUSH V. GORE: CAN THE SUPREME COURT’S MOST POLITICAL CASE PREVENT RUSSIAN HACKING OF VOTING MACHINES?

By: Jakob Brecheisen, Volume 102 Staff Member

Bush v. Gore[1] is nothing short of notorious.[2] Despite Justice Antonin Scalia admonishing Americans to “get over it,”[3] many continue to believe that Bush v. Gore is the prime example of a politically-motivated court.[4] It is hard to argue that the case is anything other than political on its surface: the five members of the Court appointed by Republican presidents[5] found, in effect, that George W. Bush was to be the next president of the United States.[6] However, many Americans forget or ignore the underlying legal analysis supporting the majority’s conclusions. While some have argued that the Bush v. Gore opinion is largely worthless as precedent,[7] others have pointed to its potential impacts on the widely differing voting practices around the United States.[8] Despite serving as a solution to a constitutional crisis,[9] Bush v. Gore has become relevant to modern Equal Protection jurisprudence involving the right to have one’s vote counted equally with others.[10] It is even possible that Bush v. Gore may prove essential to combating the threat of foreign hackers undermining U.S. elections.

I. THE BUSH V. GORE DECISION

The Bush v. Gore dispute required the Supreme Court to analyze the Florida Supreme Court’s ruling on recount procedures.[11] Because some of Florida’s punch card ballots were not properly punctured,[12] the Florida Supreme Court ruled that officials recounting the votes should evaluate them according to the “intent of the voter.”[13] The Supreme Court disagreed, holding that the “intent of the voter” standard did not satisfy minimum requirements for non-arbitrary treatment of voters under the Equal Protection Clause’s protection of the fundamental right to vote for president.[14] In perhaps the most controversial aspect of the opinion, the Supreme Court also reversed the Florida Supreme Court’s order calling for a recount.[15] The majority noted that the Florida State Constitution required Florida’s electors to be determined by December 12, 2000, the same day that the opinion was published.[16] Instead of ruling that the recount could proceed beyond that date, the Supreme Court stated that there was insufficient time to perform a recount compliant with the Court’s order and that the recount effort should thus be abandoned.[17] As a result, the original election results, showing George W. Bush winning Florida by 1,784 votes,[18] became the final tally.[19] 60,000 votes remained uncounted.[20]

Perhaps the most interesting aspect of the opinion was the Court’s disclaimer near the end of its analysis: “[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”[21] Constitutional Law Professor Jamie Raskin compared the reasoning to “Cinderella’s gown[:] the reasoning here turns to rags at midnight.”[22] Scholars interpreted the Court’s language as attempting to prevent the opinion from being used as precedent.[23]

II. BUSH V. GORE IN EQUAL PROTECTION CHALLENGES

How then, with such a narrow holding, could Bush v. Gore be relevant in the future? Prior to Bush v. Gore, most election law scholars likely would have stated that the disparities resulting from the use of multiple voting systems would not raise constitutional issues.[24] However, the case appeared to establish new and important Equal Protection precedent: states “may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”[25] Scholars continued to argue that the opinion had no precedential value into the late 2000s.[26] However, over time, the case began to form the basis for some election administration reform.[27]

Most prominently, it was the basis of the Sixth Circuit Stewart v. Blackwell case, which found that Ohio’s use of punch card ballots violated voters’ equal protection rights.[28] There, the state of Ohio used four forms of voting systems—one of which, the punch card system, resulted in significantly higher rates of uncounted votes.[29] The court relied upon Bush v. Gore heavily in the opinion, stating that the punch card system “does not provide the minimal adequate procedural safeguards to prevent the unconstitutional dilution of votes. . . .”[30] Bush v. Gore continues to be used in Equal Protection challenges to state voting systems.[31] However, the challenges are not uniform in their application of Bush v. Gore, and are plagued with varying standards of review.[32] As such, Bush v. Gore appears to be important to modern-day election administration challenges under the Equal Protection Clause, but there is still significant uncertainty as to the extent of the case’s application.[33]

III. PRESENT-DAY RELEVANCE OF BUSH V. GORE

With space for Bush v. Gore to grow, there are interesting potential applications of the once-shunned precedent. Fears of foreign involvement in domestic elections have been heightened since the 2016 election.[34] While much of the media attention has focused on Russian intervention in social media and collusion with political actors,[35] there is reason to believe that the American voting infrastructure is similarly at risk. In September 2017, one of the world’s largest hacking conventions created a “Voting Machine Hacking Village” that contained over 25 pieces of election equipment, all of which were successfully hacked by the end of the convention.[36] Furthermore, two officials from the Department of Homeland Security recently testified before the Senate Select Committee on Intelligence that “Russian intelligence obtained and maintained access to elements of multiple U.S. state or local electoral boards.”[37] The officials additionally noted that the goals of foreign hackers are often merely to destabilize the legitimacy of open elections, testifying that small security breaches could significantly undermine American elections.[38]

Bush v. Gore presents interesting questions in light of the potential security breaches in American voting machines. Should a region’s voting machines be vulnerable to foreign exploitation, Bush v. Gore could presumably provide precedent that supports an invalidation of the vulnerable voting infrastructure. As the case calls for “minimal adequate procedural safeguards to prevent the unconstitutional dilution of votes,”[39] it seems reasonable that one could challenge a region’s use of vulnerable voting machines for inadequately safeguarding local voters’ right to have their vote counted equally. If the region’s voters are more vulnerable to having their votes manipulated or diluted by hackers, their votes are not counted equally to voters in regions with properly secured voting machines. As an Equal Protection challenge, the state would have the opportunity to present a compelling government interest,[40] meaning that the state could then attempt to justify the use of the insecure voting infrastructure. It is difficult to predict the outcome of such a challenge, but Bush v. Gore would certainly provide valuable precedent.

While the infamous Bush v. Gore decision was initially viewed as having little value as precedent, it has become a significant aspect of Equal Protection jurisprudence in election law. It continues to be valuable in resolving election infrastructure issues. With the advent of potential foreign subversion of American election legitimacy, Bush v. Gore may even serve as valuable precedent to challenge vulnerable state voting infrastructure. Despite its controversial roots, the influence of Bush v. Gore could extend far beyond the 2000 presidential election.

  1. 531 U.S. 98 (2000). ↑
  2. See Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 Notre Dame L. Rev. 1093, 1094 (2001) (“Bush v. Gore obviously attracted enormous public and media attention.”). ↑
  3. Gregory Krieg, Antonin Scalia’s 10 Most Memorable Lines, CNN (Feb. 13, 2016), https://www.cnn.com/2016/02/13/politics/antonin-scalia-memorable-lines/index.html. ↑
  4. Chemerinsky, supra note 2, at 1094. ↑
  5. The five justices that did not file a dissent were Chief Justice Rehnquist, Justice O’Connor, Justice Scalia, Justice Kennedy, and Justice Thomas. See Bush, 531 U.S. 98. Each was nominated by a Republican President. Members of the Supreme Court of the United States, Supreme Court of the United States, https://www.supremecourt.gov/about/members.aspx. ↑
  6. Chemerinsky, supra note 2, at 1094. ↑
  7. See, e.g., Richard L. Hasen, The Untimely Death of Bush v. Gore, 60 Stan. L. Rev. 1, 3 (2007). ↑
  8. See Richard B. Saphire & Paul Moke, Litigating Bush v. Gore in the States: Dual Voting Systems and the Fourteenth Amendment, 51 Vill. L. Rev. 229, 234 (2006). ↑
  9. Richard A. Posner, The 2000 Presidential Election: A Statistical and Legal Analysis, 12 Sup. Ct. Econ. Rev. 1, 40 (2004). ↑
  10. See Saphire and Moke, supra note 8, at 261. ↑
  11. Bush v. Gore, 531 U.S. 98, 98 (2000). ↑
  12. John Martin, WNT: Explaining the Undervotes, ABC World News Tonight (Nov. 30, 2000), http://abcnews.go.com/WNT/story?id=131406&page=1. ↑
  13. Bush, 531 U.S. at 105. ↑
  14. Id. at 98. ↑
  15. Id. at 98–99. ↑
  16. Id. ↑
  17. See id. at 98–99. ↑
  18. Id. at 100–01. ↑
  19. See id. at 98–99. ↑
  20. Id. at 135 (Souter, dissenting). ↑
  21. Id. at 109. ↑
  22. Jamie Raskin, Bush v. Gore’s Ironic Legal Legacy, L.A. Times (Dec. 13, 2015), http://www.latimes.com/opinion/op-ed/la-oe-1213-raskin-bush-v-gore-anniversary-20151213-story.html. ↑
  23. See Hasen, supra note 7, at 3. ↑
  24. Saphire & Moke, supra note 8, at 259. ↑
  25. Bush, 531 U.S. at 104–05. ↑
  26. See, e.g., Hasen, supra note 7, at 3 (“Bush v. Gore is dead. [No] Court opinion—majority, concurrence, or dissent—has cited the opinion since it was decided. [We] should abandon any hope created by the case that the judiciary would serve as an engine of election administration reform.”). ↑
  27. Saphire & Moke, supra note 8, at 297. ↑
  28. Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), vacated (July 21, 2006), superseded, 473 F.3d 692 (6th Cir. 2007). ↑
  29. Id. at 848. ↑
  30. Id. at 870. ↑
  31. See, e.g., Wexler v. Anderson, 452 F.3d 1226, 1231 (11th Cir. 2006); Jones v. Samora, 395 P.3d 1165, 1178 (Col. App. 2016). ↑
  32. Saphire & Moke, supra note 8, at 297. ↑
  33. See id. ↑
  34. Jonathan Masters, Russia, Trump, and the 2016 U.S. Election, Council on Foreign Rel. (Feb. 26, 2018), https://www.cfr.org/backgrounder/russia-trump-and-2016-us-election. ↑
  35. Id. ↑
  36. Blaze, et al., Voting Machine Hacking Village: Report on Cyber Vulnerabilities in U.S. Election Equipment, Databases, and Infrastructure 4 (2017), https://www.defcon.org/images/defcon-25/DEF%20CON%2025%20voting%20village%20report.pdf. The lack of security on a few of the systems was particularly noteworthy, including one machine that had “an unchangeable, universal default password . . . of ‘admin’ and ‘abcde.’” The machine could be controlled remotely, allowing hackers to change votes and collect information on voters and their selection of candidates. Id. ↑
  37. Manfra & Liles, Addressing Threats to Election Infrastructure 4 (2017), https://www.intelligence.senate.gov/sites/default/files/documents/os-jmanfra-062117.PDF. ↑
  38. Id. at 2. ↑
  39. Stewart v. Blackwell, 444 F.3d 843, 848 (6th Cir. 2006), vacated (July 21, 2006), superseded, 473 F.3d 692 (6th Cir. 2007). ↑
  40. See id. at 859. ↑
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