Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Thursday, April 5
 
Four on Bush v. Gore
The applicability of the Equal Protection Clause to matters of election administration is receiving renewed scholarly attention. My colleague Ned Foley has posted this paper, entitled "The Future of Bush v. Gore." Prof. Foley develops a taxonomy of post-Bush equal protection claims, and considers the prospects for future intervention by the Court. Dan Lowenstein responds to Prof. Foley's paper in this paper, entitled "The Meaning of Bush v. Gore." Rick Hasen has just posted this draft, entitled "The Untimely Death of Bush v. Gore." Prof. Hasen argues that the promise of Bush v. Gore and the election reforms that followed remains unrealized, due to failings on the part of the courts as well as legislative and administrative actors.

Finally, I've got a draft paper entitled "Leave It to the Lower Courts: On Judicial Intervention in Election Administration," which is to be published in the same Ohio State Law Journal symposium issue of which Profs. Foley's and Lowenstein's papers will be part. I take a somewhat rosier view than Prof. Hasen of the lower court litigation that followed Bush v. Gore, arguing that it has a salutary impact on election administration. At the same time I'm very wary of Supreme Court intervention, particularly given its intervention in Purcell v. Arizona, the Arizona voter ID case of which I, like Prof. Hasen, am critical.

The applicability of the Equal Protection Clause to matters of election administration is almost certain to remain a focus of attention between now and the 2008 election. Just today, the Seventh Circuit issued this order denying rehearing in Crawford v. Marion County Board of Elections, in which a divided court had upheld Indiana's voter identification law. Four Seventh Circuit judges joined a dissent from the full court's decision not to rehear the case en banc. Judge Posner's opinion for the panel majority is an unimpressive piece of work, as I discuss in my paper (at pages 28-29). Still, I hope that this case won't wind up before the Supreme Court, as I'm concerned that this could do greater damage to the equal protection law in this area.

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Moritz College of Law The Ohio State University