Epilogue: Bush v. Gore and the Constitutional Right to Vote
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Description
The purely partisan perspective on Bush v. Gore focuses on the ongoing, contested dimensions of a close election and the controversial role of the Supreme Court in declaring game over. On this telling, the Bush v. Gore decision was a denial of the right of every vote to be counted amid an institutional power grab for the Republican Party. From this point of view, the main legacy of that dramatic moment in constitutional and political history is that everything possible should be done to allow postelection validation of all votes, including the expanding role for provisional ballots. The reform upshot was the Help America Vote Act (HAVA), a complicated legislative gambit that tried to rationalize state voter registration records at the state level, created a generally useless Electoral Assistance Commission, and enshrined a system of post-election challenges to provisional ballots that, while perhaps better than the other available options, is also a litigation nightmare just waiting to happen. Perhaps the passage of time will allow an alternative story, one in which the postelection partisan scramble was even more important as a window into the much more pervasive and structural dysfunctionalities of the American electoral system. This alternative account begins at the top with a winner-take-all Electoral College system that created the cliff effect necessary for Florida 2000—the ability of a few hundred actual votes to determine whether Florida’s twenty-five Electoral College votes would be entirely captured by George Bush or Al Gore. From there, the story of electoral dysfunction would cast attention on how control of federal elections is still, more than 200 years since the Constitution’s creation, overwhelmingly left in the hands of the states and, ultimately, in those of local county administrators. Voting lists are kept in local polling books; volunteers (mostly female and mostly senior, even on a more probing reexamination) staff election administration generally with inadequate training and little more than episodic engagement with complicated election rules. This account would add in the local administrators who purchase voting machines from friendly vendors and devise ballots based on whimsical expectations of voter capabilities. And the list would run to partisan control of the machinery of elections. Here we would engage the devotion of major electoral resources to combat illusory claims of in-person fraud by constricting early voting, adding identification requirements, and generally clogging the machinery in ways that invite a takeover by Starbucks or Cheesecake Factory, or any competent market-tested firm able to satisfy basic consumer needs. Under this alternative viewpoint, the Bush v. Gore decision may have been partial, incomplete, hesitating, right on substance but wrong on remedy—the list is by no means exhausted. Yet it may also have been the opening wedge in defining a broader claim of citizen expectation that voting should be accessible and fair. Any legal requirement of basic fairness would place a bull’s eye on the structural guarantees of dysfunctionality of the electoral system, starting with its partisan overseers and continuing right on through its localized administrators. On this more far-reaching reading, the Supreme Court’s efforts to find a guiding legal principle for constitutional oversight might provide a foothold for challenging some of the more bizarre excesses of our electoral system. A single case study of Ohio provides evidence whether this attempt to rescue a broader constitutional commitment to the right to vote is simply Panglossian, or whether the moment has finally come to integrate a conception of proper democratic functioning into the Constitution. We look to Ohio because the past three presidential elections have either turned on the outcome in Ohio or, perhaps more significant, because the past three presidential campaigns were waged on the presumption that Ohio could be the touchstone of the entire election.
Source Publication
Election Administration in the United States: The State of Reform After Bush v. Gore
Source Editors/Authors
R. Michael Alvarez, Bernard M. Grofman
Publication Date
2014
Recommended Citation
Issacharoff, Samuel and Pildes, Richard H., "Epilogue: Bush v. Gore and the Constitutional Right to Vote" (2014). Faculty Chapters. 1951.
https://gretchen.law.nyu.edu/fac-chapt/1951
