The case that ended the recount in Florida and sealed the presidential victory of George W. Bush is hardly anyone’s favorite. Justice Antonin Scalia has a penchant for telling questioners still hot about the decision to “get over it.”
The justices went out of their way to say that the 5 to 4 opinion “is limited to the present circumstances,” and the court has not cited the ruling in any of its decisions since.
But as changes in voting laws across the country portend a rush of election-year battles, some lower courts are mining Bush v. Gore for what it tells judges about counting disputed votes and whether it controls races farther down the ballot.
The decision has been cited more than 250 times in lower court decisions, and the U.S. Court of Appeals for the 6th Circuit in Cincinnati, in particular, has noted the ruling while refereeing some of the voting litigation that has been prevalent in the battleground state of Ohio.
Last year, it directed a district judge to weigh whether Bush v. Gore was relevant to the dispute that has yet to yield a winner in the Hamilton County Juvenile Court race between Hunter and Republican John Williams.
U.S. District Judge Susan J. Dlott decided that it was. She said the decision of the Hamilton County election board to count one set of disputed ballots but not another “violates the rule set out in Bush v. Gore: that ‘having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.’ ”
Williams was ahead by 23 of nearly 290,000 votes cast when the election board said it had finished its work. But Hunter, the Democratic Party and others sued.
At issue are ballots cast by voters in precincts other than where they are registered. Such votes are not to be counted under Ohio law, but there is a caveat if the mistake was made by a poll worker rather than the voter.
The board counted such votes if they were cast at election headquarters. It reasoned that in such cases it had to be that an election worker gave the voter the wrong ballot. It didn’t count such votes cast at polling places.
The problem is that, in Hamilton County, more than one precinct votes at the same polling place, and the chance of confusion seems high.
Hunter sued to get more of the discarded votes counted, and the case has gone through the district court, appeals court, Ohio Supreme Court and — briefly — the U.S. Supreme Court. The justices sent the case back for more work.
Dlott conducted a trial over the summer and found evidence of “many problems” at the polling places, she said. Some poll workers didn’t know that a ballot cast in the wrong precinct would not be counted, she said. Others failed to confirm that voters who walked through the door were sent to the correct precinct table to get a ballot. Others simply were confused.