As we approach Election Day and the legal challenges that seem likely to follow, many people have expressed the sentiment that — whatever the outcome — they hope this does not “turn into another Bush v. Gore.” However, there’s no getting around the fact that the Supreme Court’s opinion in Bush v. Gore in 2000 left unresolved legal questions that this election could test.
In that case, the US Supreme Court ordered the state of Florida to cease a statewide recount of ballots that automated tallying machines had rejected. Different counties — and even different officials within the same county — were applying different, subjective standards to decide whether the ballots they were reviewing qualified as legally valid.
Seven justices agreed that such differential treatment of materially identical votes violated the Constitution’s Equal Protection Clause, but they disagreed as to the proper remedy. The majority concluded that, since the federal “safe harbor” deadline for casting Electoral College votes was imminent, there was not time to conduct a new, constitutionally proper recount. The dissent, in contrast, would have allowed the state to conduct a new recount, applying uniform counting rules to all ballots.
At the heart of the majority’s opinion is a concept I refer to as the uniformity principle: A state may not accord “arbitrary and disparate treatment” to voters participating in the same election. In earlier cases, the Supreme Court had held that states must generally provide equal treatment when determining people’s eligibility to vote, and it had adopted “one person, one vote” principles to ensure that voters’ ballots were given equal weight. Bush v. Gore extended this principle further, so that it applied to nuts-and-bolts aspects of the electoral process as well — in particular, the rules governing how votes are counted.
At the time the Supreme Court handed down its ruling, many critics assailed it because it contained an unusual qualification that suggested it might not serve as precedent for future cases. “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” the decision said. Some argued that the court sought to limit Bush v. Gore’s use as a precedent because it was a results-oriented ruling good for “one day only.”
However, federal and state courts across the country have gone on to consider and apply the uniformity principle from Bush v. Gore in a wide range of election-related cases over the past two decades. Rather than being an isolated, anomalous assertion, it appears to have become a general principle of election law.
For example, several courts have invalidated states’ attempts to certify a range of voting systems with substantially different error rates, from which each county within the state could choose. Those courts held that collecting the votes of people participating in the same election using machines with varying error rates was comparable to allowing recount officials in Florida to each apply their own interpretation of the state’s vote-counting standards in 2000.
Courts have also held that the uniformity principle bars county officials from adopting varying rules on election-related issues such as ballot harvesting, voter registration, absentee ballot request forms, and signature requirements for online registrants, if those differences in the rules could cause voters across the state to have substantially different opportunities to vote. In what might be the most notable use of the uniformity principle for the enforcement of voting rights, the US Court of Appeals for the Sixth Circuit held in 2006 that substantial disparities in waiting times at polling places may violate the Equal Protection Clause.
Many questions remain about the scope of the uniformity principle. For example, some courts have expressed concern that lawsuits seeking relief for only some voters in a jurisdiction may violate the uniformity principle, by giving such voters more of an opportunity to vote than others participating in the same election. However, the Supreme Court has ruled in several cases dating back to the civil rights era that states have broad discretion to remove barriers to the franchise and expand opportunities to vote, even if they do so selectively, for only certain groups of voters.
These rulings create some tension with the uniformity principle, creating a dilemma that has already come up in this year’s presidential election. Can particular counties take steps to make voting substantially easier in statewide elections? On the one hand, particularly during a pandemic, any effort to expand access to safe voting opportunities should be commended and encouraged, consistent with the Supreme Court’s precedents from the civil rights era. On the other hand, geographic or other differences in opportunities to vote could have a partisan impact and give rise to fairness concerns, in violation of the uniformity principle.
There’s a clear way to avoid this potential constitutional conflict altogether: States can invest money and resources into expanding voting opportunities on a statewide basis. All voters — regardless of race, socioeconomic status, or geographic location — should have expansive opportunities to vote in ways that do not jeopardize their health; that minimize any risk of mistake, irregularity, or fraud; and that allow the public to have confidence in the accuracy and integrity of the results.
The modern constitutional right to vote has been defined primarily by the Supreme Court. The Constitution contains various provisions expressly prohibiting voting-related discrimination on certain grounds, like race, sex, or age (for those who are at least 18); over the course of the 20th century, the court construed the Equal Protection Clause to protect the fundamental right to vote in various other ways as well. Bush v. Gore, in its way, expanded the application of those equal protection principles. Twenty years later, the court still needs to clarify just how far these principles will go — and whether states have broad discretion to expand opportunities to vote in targeted ways.
Michael T. Morley, an assistant professor in the law school at Florida State University, specializes in election law and is the author of several articles about post-election lawsuits.