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Commentary

A Major Ruling on the Meaning of Bush v. Gore

The majority opinion of the Sixth Circuit panel in this Ohio provisional ballot case is, in my judgment, the most significant application of Bush v. Gore in the decade since that precedent was decided. The reason is that this new decision contains an extensive analysis of what Bush v. Gore requires with respect to the category of cases for which that precedent is most germane: disputes about how local election officials treated particular ballots as they decided whether or not to count them.

It is important then that the majority opinion (written by Judge Moore, joined by Judge Cole) did not garner the support of the third judge on the panel (Judge Rogers) in its analysis of Bush v. Gore. Therefore, other federal courts of appeals may choose not to embrace its analysis. Still, the majority opinion—assuming it is not nullified by the U.S. Supreme Court or the “en banc” (full) Sixth Circuit in further proceedings in this case—is the prevailing view, and as such it stands to command considerable attention. For the time being, it will be the “leading case,” so to speak, for this particular area of law, even more so than the Minnesota Supreme Court’s decision in Coleman v. Franken. To be sure, that state court precedent concerned a much higher profile election: a U.S. Senate seat. But generally a federal appeals court’s understanding of federal law tends to carry more weight than a state supreme court’s, and the Sixth Circuit’s majority opinion is somewhat more analytically thorough and nuanced in its consideration of Bush v. Gore than the Minnesota Supreme Court’s opinion (as thoughtful and meticulous as that unanimous opinion also was), and thus the Sixth Circuit’s analysis is likely to exert more gravitational pull as other courts in the future confront new ballot-counting disputes.

Thus, it behooves us to understand what the majority opinion’s reasoning is—and why the third judge did not embrace it.

The majority opinion is long, 41 pages, and painstakingly precise in its description of the factual details of this case, which are extremely complicated. For those who have been following this case, the Sixth Circuit’s consideration of it is broader in scope than the specific grounds of the district court orders that were under review. While the district court’s injunctions were essentially predicated on a comparison of two groups of provisional ballots—a smaller group of those cast at the board of election’s headquarters and a much larger group of those cast at neighborhood polling locations containing multiple precincts—the Sixth Circuit noticeably broadens its inquiry by observing that the original complaint in the case identified other categories that allegedly suffered unconstitutionally discriminatory treatment. For example, on page 37, the majority opinion enumerates these additional categories of ballots that were counted because the Hamilton County Board of Election found that poll worker error was responsible for the irregularities associated with the casting of the ballots:

  1. “686 provisional ballots that had contradictory information regarding voter identification”;
  2. “13 provisional ballots that had either no voter signature or only a partial name or no printed name in the affirmation.”

The majority opinion also discusses these additional categories on page 23.

Still, without undue oversimplification, it seems fair to say that the heart of the Sixth Circuit’s reasoning, like the district court’s, concerns the relationship between the first two groups of ballots: (1) the 27 that were cast at the Board’s headquarters and counted despite the voter having received the ballot for the wrong precinct; and (2) some 269 ballots that were cast at the correct polling location but at the wrong table and thus have been rejected by the board as being cast in the wrong precinct. Here’s how the majority opinion, on page 34, characterized its own conclusion with respect to its Equal Protection analysis: “In sum, the Board . . . chose to consider evidence of poll-worker error for some ballots [the 27], but not others [the 269], thereby treating voters’ ballots arbitrarily, in violation of the Equal Protection Clause.” (Emphasis added.) This conclusion reiterated the same point made earlier in its analysis, on page 33: “The Board arbitrarily treated one set of provisional ballots differently from others, and that unequal treatment violates Equal Protection.”

The majority explained that it saw these two groups of ballots to be factually equivalent for purposes of Equal Protection. “The evidence of poll-worker error with respect to those 269 ballots—that the ballots were cast at the correct multiple-precinct polling location—is substantially similar to the location evidence considered by the Board with respect to the ballots cast at its office.” (Page 25; emphasis added.) The majority opinion did acknowledge that there was some factual difference between the two situations: “To be sure, there may be more explanations for why the voter might have erred at the multiple-precinct polling locations than at the Board’s office, requiring a greater inference to conclude that the miscast ballot was a result of poll-worker error.” (Id.) But, in its key analytical move, the majority opinion said that the Board had not “presented any persuasive rationales” that would justify distinguishing the two groups. (Id.)

Using the framework of traditional Equal Protection analysis applicable to voting cases, and citing many precedents in addition to Bush v. Gore (including the Crawford voter ID case), the majority opinion explained that the state government needed to articulate a forceful reason why it would consider poll-worker error in the one context but not the other. Moreover, not only hadn’t the government done so here, it couldn’t— because the Board’s distinction between the two categories was inconsistent with the state statutory requirement (as interpreted by the Ohio Supreme Court) that the two categories be treated the same. The “disparate treatment of voters here resulted not from a ‘narrowly drawn state interest of compelling importance,’” the majority opinion stated (quoting Crawford), “but instead from local misapplication of state law.” (Page 26, emphasis added.) In other words, a state legislative policy to distinguish the two categories of ballots with respect to the issue of poll-worker error might satisfy Equal Protection scrutiny, but in this case:

The distinctions drawn by the Board at the time of its decisions were made in the midst of its review of provisional ballots, after the election. They were not the result of a broader policy determination by the State of Ohio that such distinctions would be justifiable. Therefore, they are especially vulnerable to Equal Protection challenges. (Page 27, emphasis added.)

This analytical move—to contrast legislative policy, on the one hand, with administrative determinations in the midst of counting ballots after they have been cast, on the other—is also what enabled the majority opinion to tie its reliance on Bush v. Gore with its invocation of traditional Equal Protection jurisprudence in voting cases.

As the majority opinion explained, Bush itself was a case involving ballot-by-ballot administrative determinations during a recount, and the Supreme Court there noted that general rules reflecting a legislative-type policy judgment would be treated differently. (See page 22, quoting the relevant passage of Bush v. Gore on this point.) In the Sixth Circuit’s eyes, Bush v. Gore is a special application of traditional Equal Protection law, for the circumstance in which disparate treatment among voters is particularly acute: when all the ballots have been cast, and now it is time to decide which, among those ballots that are challenged or otherwise disputed, will be counted to determine the winner of the election. This particular Equal Protection concern applies, the majority opinion explained, as much to the counting of provisional ballots as it did in the specific context of Bush v. Gore. In the majority opinion’s own words:

Constitutional concerns regarding the review of provisional ballots are especially great. As in a recount [like Bush v. Gore,] the review of provisional ballots occurs after the initial count of regular ballots is known.” (Page 22, emphasis added.)

(It should be noted that, in explaining this point, the majority opinion relied on several scholarly articles published in an Ohio State Law Journal symposium: one by John Fortier, one by my Moritz colleague Dan Tokaji, and one by me.)

The link, then, between Bush v. Gore and conventional Equal Protection analysis is the unacceptability of “arbitrary” distinctions among voters that results in the disenfranchisement of some but not others in the context of the same election. This linkage manifests itself in two ways. First, there is the special need to be wary of such arbitrary distinctions in the particular context of ballot-by-ballot determinations. Second, there is the increased risk that these ballot-by-ballot determinations will, in fact, be arbitrary if they are not guided by legislative policy established before the ballots were cast. The Sixth Circuit majority opinion put these two related points together in reaching its specific conclusion that in this case Hamilton County had not offered a persuasive justification for its differentiation of the two groups of provisional ballots: “the Board exercised discretion, without a uniform standard to apply, in determining whether to count miscast ballots due to poll-worker that otherwise would have been invalid under state law.” (Page 27.) This key sentence, in the midst of the explanation why Hamilton County did not satisfy traditional Equal Protection scrutiny, incorporates the operative terminology of Bush v. Gore (“discretion, without a uniform standard”). In this way, the majority opinion treats Bush v. Gore not as an outlier, but as an integral part of Equal Protection analysis for this kind of ballot-counting case.

There are many other interesting elements of the majority opinion that one could comment on, but two especially deserve mention in this preliminary discussion of it. First, the government in this case made the argument that to count additional Hamilton County ballots affected by poll-worker error (beyond the 27 already counted) would compound Equal Protection problems, not fix them. The reason, according to this argument, is that this judicial decree would be limited to Hamilton County and would not apply to any similar ballots affected by poll-worker error elsewhere in the state. The majority opinion emphatically rejected this argument, explaining that this particular election was limited to Hamilton County voters. “Because voters in other counties may not cast votes [for this local office,] remedying poll-worker error with respect to votes in this race does not result in unequal treatment of voters outside Hamilton County.” (Page 32.) The court did recognize that, if there had been statewide races affected by poll-worker error, a judicial decree limited to one county would raise problems under Bush v. Gore. But “no statewide 2010 election is subject to a vote-counting dispute, and all statewide elections are now final under Ohio law.” (Id.) The court also added that if local races in other counties in the state were subject to similar problems, “they may be resolved in separate litigation.” (Id.)

Second, although the Sixth Circuit’s decision rested squarely on Equal Protection, the majority opinion also had some interesting words about Due Process as it applies to this case. One of the subsidiary issues in this case is the status of the 27 ballots already counted and whether “uncounting” them might remove the Bush v. Gore Equal Protection issue under litigation. No, the majority opinion said, because doing so would not cure all the Equal Protection problems in this case. Here was one place the Sixth Circuit relied on the fact that there are more categories of disputed ballots in this case that just those that formed the basis for the district court’s injunctions. But even beyond this Equal Protection point, the majority opinion said it would have grave Due Process concerns about any state law or decision that would call for the rejection of ballots cast by qualified voters where the problem with the ballot was entirely attributable to the government’s own mistake. “To disenfranchise citizens whose only error was relying on poll-worker instructions appears to us to be fundamentally unfair.” (Page 35.) More importantly, the court’s Due Process point applies not just to the 27 ballots already counted, but potentially to some number of the 269 that were rejected. If on remand the district court finds that some of these ballots were miscast in the wrong precinct solely because of poll-worker error, then Due Process might require them to be counted (quite apart from the Bush v. Gore Equal Protection claim).

The short separate opinion, by Judge Rogers, did not address Due Process. But it did take on the Equal Protection issue and squarely disagreed with the majority. (Therefore although nominally a “concurrence in the judgment,” it reads more like a dissent, or at least a partial dissent.) Judge Rogers did not accept the premise that the two categories of ballots—the 27 cast at Board headquarters and the 269 cast in neighborhood polling locations with multiple precincts—were factually equivalent for the purposes of Equal Protection analysis: “The two wrong-precinct groups of ballots are sufficiently different that Ohio law could permit counting the 27 votes on the ground that the error was much more clearly and ascertainably not attributable to the voter than in the election-day polling place situations.” (Page 42.) Judge Rogers rejected the majority opinion’s idea that the board’s mistaken application of state law in differentiating between the two groups deprived the board of a justification for its distinction under Equal Protection scrutiny. On the contrary, Judge Rogers asserted that insofar as the board’s differential treatment of the two groups was “predicated on a mistaken view of the law by the Board,” then the remedy should come from state law not federal Equal Protection: “there should be a state-law challenge to the votes erroneously cast, not a counting of a much larger number of votes county-wide that were erroneously cast in a similar—but not exactly the same—way.” (Id.) In this respect, Judge Rogers was echoing the view of the Minnesota Supreme Court in Coleman v. Franken. Judge Rogers then went on to embrace the concern about a potential statewide Equal Protection problem, which the majority opinion had rejected: “counting improperly cast votes county-wide, where the ballots include trans-county district and state races, raises serious Equal Protection concerns in having Hamilton County votes counted differently from those of other Ohio counties.” (Id.)

Finally, there is the question of what happens next in this case. As already indicated, there might be an effort to overturn this decision, by seeking review of it either in the full (en banc) Sixth Circuit or in the U.S. Supreme Court. But as it stands now, the case goes back to the federal district court. Although the majority opinion agreed with the essence of the district court’s reasoning on the core Equal Protection issue in the case, the Sixth Circuit opinion did vacate the district court’s order to count additional ballots based on that Equal Protection reasoning. The Sixth Circuit said that the defendants in the case still need an opportunity to address evidentiary questions concerning the extent to which poll-worker error in fact affected the 269 ballots cast in the correct polling location but at the wrong precinct table. The majority opinion did say that the district court was not wrong to rely on the evidence already before it, including evidence generated as a result of outgoing Secretary of State Brunner’s directives (see pages 30-31). Thus, presumably the evidentiary proceeding on remand will consider both the evidence already in the record plus any additional relevant evidence the defendants might be in a position to introduce. The extent to which the plaintiffs might be entitled to add additional rebuttal evidence of their own is unclear (at least to me), based on this initial reading of the majority opinion. There may also be some additional unsettled questions concerning burden of proof and/or evidentiary presumptions, as they might apply to determining whether poll-worker error bears the responsibility for particular ballots being miscast at the wrong precinct table.

Any such matters relating to the remand are best left for further consideration. For now, it suffices to recognize the significance of this Sixth Circuit decision as the preeminent precedent on the meaning of Bush v. Gore. In doing so, however, it remains necessary to acknowledge that this panel decision was not unanimous, thereby indicating that the debate and uncertainty over the meaning of Bush v. Gore will continue into the future—even considering the importance of this major new precedent to the developing jurisprudence in this particular area of law.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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