Posted: April 5, 2007

The Future of Bush v. Gore

As part of the symposium on "Election Law and the Roberts Court" co-sponsored by the Ohio State Law Journal and Election Law @ Moritz (which took place Sept. 29-30, 2006), I have drafted a paper entitled The Future of Bush v. Gore. Like the other papers written for this symposium, it will be published later this year by the Ohio State Law Journal.

 I have been asked to share this draft in light of the recent submissions to SSRN of two related papers. Most directly related is Dan Lowenstein's paper, The Meaning of Bush v. Gore, which is also part of this same symposium and comments on my paper. (I am very grateful for the care and attention he gave my piece, and he and I are discussing with each other, and with the Journal, what form of response to his piece might be appropriate for me to make within the context of the published symposium.) The other is Rick Hasen's paper, not part of the same symposium (although Rick contributed a separate paper to the symposium), entitled The Untimely Death of Bush v. Gore.

I welcome any feedback on this draft that readers might wish to email me. Readers should know that the paper is in the middle of the Journal cite-checking process.

Additionally, readers interested in the topic of these three papers would do well to consider also my colleague Dan Tokaji's contribution to the same symposium, Leave It to the Lower Courts: On Judicial Intervention in Election Administration.

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