In Bush v. Gore,1 the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote-that is, ballots that vote-counting machinery had found contained no indication of a vote for President-which the Florida Supreme Court had ordered to determine the winner of Florida's vote for presidential electors in the 2000 presidential election.2 The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court's failure to assure consistency between and within Florida's counties in the determination of whether particular undervote ballots constitute legally valid votes.3
The Court correctly determined that the Equal Protection Clause applies to the state and local procedures affecting the casting and counting of ballots but was, for the most part, wrong to find that the Florida Supreme Court's order denied Florida voters equal protection. In particular, the inconsistencies in counting undervotes, which the Florida court's order appeared to tolerate and which so disturbed the United States Supreme Court, did not constitute an equal protection violation.
Equal protection ought to apply to the nitty-gritty of local election practices because those practices can have the effect of disenfranchising voters and discriminating among identifiable groups of voters. Such practices can negate the right to vote and the right to an equally weighted vote-rights long protected by the Equal Protection Clause. However, with virtually every local administrative decision having the potential to burden some voters relative to others, the application of the Equal Protection Clause to election rules and procedures could effectively federalize an area which has long been the domain of state and local government. Decentralization of election administration reflects important political values, including the opportunities for local participation and decisionmaking concerning contestable political issues, as well as protection from centralized political manipulation and abuse. Decentralization necessarily entails variation in election practices across the different local units charged with administering the procedures for casting and counting ballots. Subjecting all interlocal differences in election rules and procedures to close constitutional scrutiny could eliminate meaningful decentralization of election administration.
Bush v. Gore as an Equal Protection Case,
Fla. St. U. L. Rev.
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