Pretending That Bush v. Gore Was Constitutional Law: Ohio Edition

Richard Hasen has an interesting story about how citations of Bush v. Gore‘s equal protection holding in the key decisions stopping vote suppression in Ohio:

But the fight over Ohio’s election laws tells a different story. The Buckeye State has seen a rather remarkable string of wins for voting rights supporters. Federal courts have ordered the expansion of early voting and saved the votes of potentially thousands of voters who would have been disenfranchised because of poll worker errors, such as sending a voter to the wrong table to vote because the worker cannot tell an odd from an even number. Even more remarkably, the decisions from Democratic and Republican judges alike have relied on a very broad reading of Bush v. Gore, the Supreme Court case that ended the 2000 Florida recount in favor of George W. Bush.

This is a little less surprising than you might think — while the Supreme Court has famously failed to cite the case a single time, it has been fairly extensively cited by lower courts, who have (properly) ignored the Court’s explicit admission that they were committing fraud assertion that “[o]ur consideration is limited to the present circumstances.” And this is a good thing. There’s a reason, after all, that the Republicans who decided Bush v. Gore didn’t want to create precedent — if you (unlike them) take the nominal holding in Bush v. Gore seriously, it would render many of the horrible inequities of the American voting system unconstitutional.

I’ve always been a fan of Mark Tushnet’s argument that, since the lawless legitimation of George W. Bush’s presidency can’t be undone, we might as well make law out of it:

A final technique of renormalization is in some ways the most interesting. It involves the generalized invocation of rule-of-law norms, typically in the form of assertions that the Supreme Court’s decision, while perhaps incorrect, nonetheless deserves respect because the Court is our nation’s voice of the law. The qualification in the preceding sentence is important. A decision can be justified by the rule of law standing alone only if there are no other reasons justifying the decision. That is, rule-of-law ideas have force only when someone who disagrees with a decision is asked to accept it nonetheless. Not surprisingly, this creates something of a psychological difficulty, related to, but not quite the same as, the phenomenon of cognitive dissonance. People find it hard to think that decisions with which they disagree are nevertheless justified. People also find it hard to give up on the ideal of the rule of law. The outcome is predictable. As time passes, people come to think that the decisions with which they initially disagreed were actually not wrong. I think we can expect to see, and I think reasonably soon, progressives asserting that, as a matter of fact, Bush v. Gore was correctly decided.

As indeed it was. After all, the equal protection doctrine the case articulated can certainly be turned to progressive uses. We can, and should, take the case as another in a long line of decisions by political actors–a category that includes judges–expanding and protecting the expansion of the franchise. Some of us may retain a lurking, or even overt, sense that the Justices who joined the majority opinion in Bush v. Gore did not see the case in those terms and that those Justices were motivated by narrow partisan concerns. Still, the case is there to be used by progressives in the future. And that, to conclude, would be another vindication of a different critical legal studies claim, this one about the indeterminacy of legal doctrine.

It’s possible that Ohio will prove to be a case of this actually working.

UPDATE: Since the cited passage may be misleading, I should note here that when Tushnet is talking about Bush v. Gore being correctly decided, he’s talking about the equal protection holding itself, not the Court’s remedy (which was inconsistent with the holding.) Going forward (for questions other than the historical reputation of the majority justices), however, what matters is how the holding is applied, because the effects of the remedy can’t be undone.