Vote-Dilution Analysis in Bush V. Gore

Article excerpt

"I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this--who will count the votes, and how. "--Joseph Stalin (1)

I.   How the Vote-Dilution Claim Arose
       A. A Vote-Dilution Claim Is Recommended
       B. A Draft Complaint Is Sent
       C. The First Vote-Dilution Claims Are Made
II.  How the Vote-Dilution Claim Developed
       A. Vote-Dilution Is Argued in Siegel v. LePore
       B. Vote-Dilution Is Argued in Touchston v. McDermott
       C. Vote-Dilution Gets Minimal Attention Before the Florida
          Supreme Court
       D. Vote-Dilution Gets More Attention Before the United States
          Supreme Court
III. Why the Vote-Dilution Claim Prevailed
       A. Gore's Selective Manual Recount Was Legal, Unfair, and a
          Strategic Error
       B. The Florida Supreme Court Failed to Understand Its
          Probationary Status After the United States Supreme Court's
          Initial Deference
IV.  Conclusion

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After the November 7, 2000 presidential election, the electoral-college vote hinged on whether Governor George W. Bush or Vice President Albert Gore, Jr. had won Florida. Candidates, officials, and voters battled in Florida and federal courts. (2) This article is about the equal-protection, vote-dilution constitutional analysis that would ultimately decide the matter.

On December 12, the United States Supreme Court held that "[t]he recount process in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter ..." (3) In its analysis, the Court noted that "'[f]or purposes of resolving the equal protection challenge,' it was enough that '[t]he recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirements for nonarbitrary treatment of voters necessary to secure the fundamental right."' (4) "Upon due consideration of the difficulties identified to this point," the Court later noted, "it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work." (5) Consequently, the Court held: "With respect to the equal protection question, we find a violation of the Equal Protection Clause." (6) Four problems were identified: (1) "unequal evaluation of ballots"; (7) (2) failure to evaluate voter intent in "overvotes" (8) as was done with "undervotes" (9) in the manual recounts; (10) (3) including totals from a partial recount of Miami-Dade County; (11) and (4) "concerns" about the counting process, including ad hoc, untrained counting teams and observers prohibited from objecting. (12) None of these problems was identified as conclusive. But the sum of them was held to fall short of what equal protection required in order to avoid the vote-dilution problem recognized in the Court's "one-person, one-vote jurisprudence" as applied to "arbitrary and disparate treatment to voters in ... different counties." (13) The Court cited Moore v. Ogilvie (14) for the vote-dilution principle as applied to counties--"[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." (15) The Supreme Court remanded the case to the Florida Supreme Court, which decided on December 22, that there was no remedy to be offered to Gore. (16)

Was the equal-protection claim properly before the United States Supreme Court? At the St. Thomas Law Review Symposium, Bush v. Gore: A Decade Later, Florida Supreme Court Justice R. Fred Lewis claimed the equal-protection argument was not properly before the United States Supreme Court:

   [T]alking about the equal protection arguments.... I don't think
   that those were really preserved ... as a basis for the U.S.
   Supreme Court's ruling. …