Bush v. Gore's progeny

[Jack Balkin]

         It's not difficult to distinguish Bush v. Gore from this
case.  For one thing, there's no claim (at least in the facts that Andy has
given us) that state officials are engaged in arbitrary decisionmaking in
applying the standards in manual recounts concerning which votes count and
which do not. If Bush v. Gore is *really* a case about distrust of
government officials (in particular Florida judges who would be supervising
the recounts) then Black v. McGuffage does not follow.
         However, this requires one to read through the lines of the
decision in Bush v. Gore, much as one has to read through the lines of U.S.
v. Nixon to figure out the holding of that case.
         The court in this case, however will have none of that. It takes
Bush v. Gore as a case about equality in voting systems.  On its surface,
at least, it pays no attention to the fact that the decision it relies on
was (1) badly reasoned, (2) politically motivated, (3) an ongoing
embarrassment to the judicial system of the United States, (4)
fundamentally corrupt, or (5) all of the above.
         What we have here, I would submit, is the law working itself
pure.  (Which is not difficult, I might add, for virtually anything would
be purer than the decision in Bush v. Gore).
         To which I can only say: Bravo!

         Jack Balkin

At 12:01 AM 4/4/02 -0800, you wrote:
>From:    Andrew Koppelman <akoppelman at NORTHWESTERN.EDU>
>Subject: Bush v. Gore's progeny
>MIME-Version: 1.0
>Content-Type: text/plain; charset="us-ascii"; format=flowed
>
>In Black v. McGuffage, 2002 WL 483403 (March 29, 2002), Judge Guzman of the
>Northern District of Illinois denies a motion to dismiss a claim that
>Illinois's voting system, which allows for optical scanner ballots in some
>counties and the far more error-prone punch cards in others, is
>unconstitutional under the rule of Bush v. Gore.  The denial of a motion to
>dismiss appears to guarantee a victory for the plaintiffs, since there is
>little doubt that they will be able to prove their claims that the punch
>card ballots produce far more invalidated votes than the more expensive
>alternative of optical scanners.
>
>The opinion states:
>
>This case presents a situation much more analogous to that in Bush than
>that of other voting rights cases. Here, as in
>  Bush, the State is not classifying citizens insofar as it is choosing one
>system of voting for some and a different system of
>  voting for others, nor is it choosing to dilute the votes of some and not
>dilute the votes of others, as in Reynolds and Moore.
>  Rather, it leaves the choice of voting system up to local authorities.
>But that choice necessarily means that some authorities
>  will choose a system with less accuracy than others. As a result, voters
>in some counties are statistically less likely to have
>  their votes counted than voters in other counties in the same state in
>the same election for the same office. Similarly situated
>  persons are treated differently in an arbitrary manner. As in Bush the
>lack of a rational basis for implementing a different
>  system of vote counting results in vote dilution. In addition, the
>Plaintiffs in this case allege that the resulting vote dilution,
>  which was found to be unacceptable in Busch without any evidence of a
>disproportionate impact on any group delineated by
>  traditional suspect criteria, is impacting African American and Hispanic
>groups disproportionately.
>
>  That people in different counties have significantly different
>probabilities of having their votes counted, solely because of the
>  nature of the system used in their jurisdiction is the heart of the
>problem. Whether the counter is a human being looking for
>  hanging chads in a recount, or a machine trying to read ballots in a
>first count, the lack of a uniform standard of voting results
>  in voters being treated arbitrarily in the likelihood of their votes
>being counted. The State, through the selection and allowance
>  of voting systems with greatly varying accuracy rates "value[s] one
>person's vote over that of another," Bush, 531 U.S. at
>  104-105, even if it does not know the faces of those people whose votes
>get valued less. This system does not afford the
>  "equal dignity owed to each voter." Id. at 104. When the allegedly
>arbitrary system also results in a greater negative impact
>  on groups defined by traditionally suspect criteria, there is cause for
>serious concern.
>
>  The Court is certainly mindful of the limited holding of Bush. However,
>we believe that situation presented by this case is
>  sufficiently related to the situation presented in Bush that the holding
>should be the same. This holding is also consistent with
>  the overarching theme of voting rights cases decided by the Supreme
>Court--that theme being, of course, "one man, one
>  vote." Any voting system that arbitrarily and unnecessarily values some
>votes over others cannot be constitutional. Even
>  without a suspect classification or invidious discrimination, "[t]he
>right of suffrage can be denied by debasement or dilution of
>  the weight of a citizen's vote just as effectively as by wholly
>prohibiting the free exercise of the franchise." Reynolds, 377
>  U.S. at 555. Therefore, Plaintiffs have sufficiently stated a claim
>against the Defendants for violation of equal protection.
>
>Reactions?
>
>
>________________________________________
>
>Andrew Koppelman
>Associate Professor of Law and Political Science
>Northwestern University School of Law
>357 East Chicago Avenue
>Chicago, IL  60611-3069
>(312) 503-8431
>mailto:akoppelman at northwestern.edu