OSU Navigation Bar

Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz

Free & Fair

New Bush v. Gore Precedent

A unanimous 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit has released an important opinion in a case I’ve been watching closely for several years. The case is League of Women Voters v. Brunner (originally v. Blackwell), and it involves an “omnibus” Fourteenth Amendment challenge to the way in which Ohio has operated its voting process in the past. I’ve previously characterized the case as the equivalent of school funding litigation for voting administration law, because the remedies sought by the plaintiffs—which include federal-court oversight of the state’s voting process—have the potential for requiring the state to spend money to alleviate geographic-based inequalities in the voting process from county to county, or precinct to precinct.

The case came to the Sixth Circuit on an interlocutory appeal of the district court’s denial of the state’s motion to dismiss the complaint for failure to state a claim. The unanimous panel essentially affirms the district court’s denial, thereby sustaining the plaintiffs’ legal theory of the case and now remanding it for further consideration of plaintiffs’ factual allegations. The panel had one small quibble with the plaintiffs’ legal theory, rejecting the contention that its claim based on the Due Process Clause of the Fourteenth Amendment should be considered “procedural” Due Process instead of “substantive” Due Process. But that is a technical, minor matter, and the upshot of the panel’s treatment of the Due Process claim is that it permits voters to seek federal-court relief under the Fourteenth Amendment when a state’s misadministration of the voting process causes systematic disenfranchisement of voters, whether through long lines at the polls or the absence of names from voter rolls, or otherwise. Citing one of the plaintiffs’ factual allegations as an example of what makes their claim legally sufficient, the court observed: “Inadequate provision of voting machines caused 10,000 Columbus voters not to vote.” (Slip op. at 13.)

Potentially even more significant is the panel’s invocation of Bush v. Gore as a precedent to sustain the legal theory of plaintiffs’ Equal Protection challenge to Ohio’s voting process. Arguably, this new opinion is now the most significant appellate court reliance on Bush v. Gore. In preparing the McCain v. Obama simulation conducted last month, we looked for precedents relying on Bush v. Gore, and this League of Women Voters case was one of the most significant even as it then stood at the district court level. Now that it has been affirmed unanimously by this 3-judge panel, its importance is much greater.

The alleged inequality in the amount of time that voters in different parts of Ohio had to wait in 2004 is a legally sufficient Bush v. Gore violation, according to the appellate court. “Voting machines were not allocated proportionately to the voting population, causing more severe wait times in some counties than in others,” the court noted in specifying the relevant factual allegations. The court also identified geographic variation in the treatment of provisional ballots as another basis of the plaintiffs’ legally cognizable Bush v. Gore claim.

This new precedent could have major implications going forward. Together with the federal district court decision in Pennsylvania recognizing a similar constitutional violation if waiting times at polling places are too long, the Sixth Circuit’s decision could spur reforms to eliminate excessive waiting times before the next election. If not, state and local administrators could expect new lawsuits to enforce this judicially recognized constitutional right.

Similarly, today’s decision has potential implications for disputes concerning the treatment of provisional ballots, including the dispute now pending before the Ohio Supreme Court (discussed . Unjustified geographical inequalities caused by local election officials “not utiliz[ing]” the provisional voting process “properly” (in the words of the appeals court, at page 13), could rise to the level of a Bush v. Gore constitutional violation. One should not be surprised to see that argument made with respect to the 1,000 provisional ballots in dispute from Franklin County, as one of the claims already made in that case is that Franklin County inappropriately used a different form than other counties, and Franklin County’s form was more likely to cause provisional voters to make mistakes.

These are only a couple of ways in which the new Sixth Circuit precedent might be invoked in other cases. The ruling is sufficiently broad in its analysis that the full range of its potential implications cannot be immediately foreseen. One caveat in this regard: the opinion speaks repeatedly of a systemic breakdown in Ohio’s voting administration. It is possible that relatively isolated inequalities or instances of wrongful disenfranchisement would not rise (or descend?) to the level of a Fourteenth Amendment violation. But, then, it will be a line-drawing challenge for the courts in future cases to distinguish between the sufficiently egregious or systemic problems and those that are not. Today’s opinion does not speak to that line-drawing challenge, but rather simply permits this single case—based on its specific factual allegations—to go forward.

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


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

more commentary...

In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

more EL@M in the news...

Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

more info & analysis...