Will Bush v. Gore make an election-year return?

Reporter February 26, 2012

Tracie Hunter is a Democrat whose still-unsettled 2010 election contest with her Republican opponent will be decided by a legal battle over a batch of disputed and uncounted votes.

Irony alert: One of her legal lifelines is the decision that still enrages some of her fellow party members — the Supreme Court’s 2000 ruling in Bush v. Gore .

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

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.


Hamilton County Municipal court candidate Tracie Hunter delivers a speech during the Occupy Black Cincinnati pre-rally at the Cincinnati/Hamilton County Community Action Agency on Oct. 14, 2011. (Sam Greene/The Enquirer)

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.

In one instance, voters on the even-numbered side of a street were in one precinct, while voters in odd-numbered addresses were in another. It was clear from questioning at the trial that at least one poll worker had trouble differentiating an even number from an odd number.

“In sum, the testimony revealed a chaotic process,” Dlott wrote. She ordered about 300 disqualified ballots to be counted.

But the story does not end there.

The Hamilton County election board — two Democrats, two Republicans — deadlocked on whether to count the votes or appeal the ruling. Enter Ohio Secretary of State Jon Husted, a Republican, to break the tie and appeal Dlott’s decision back to the 6th Circuit.

“As Ohio’s chief elections officer, today I must stand on principle rather than expediency,” Husted said in a statement last week.

“I cannot and will not back down when it comes to our state’s right to administer elections, nor can I stand by while the federal government drops yet another conflicting standard on our doorsteps.”

When the case briefly reached the Supreme Court before, Williams argued that federal courts should get involved only when there is intentional discrimination at work, not simply mistakes by a local board.

Edward B. Foley, an Ohio State University law professor and election law expert who has closely followed the case, said Hunter v. Hamilton County is “the most developed application of Bush v. Gore” in the lower courts.

It doesn’t involve the mechanics of voting — hanging chads or butterfly ballots or long lines at the polls — but rather the essential question of “counting ballots after they have been cast,” Foley said.

Jennifer Branch, Hunter’s lawyer, said the suit relies on the equal protection claim that “is the hallmark of the Bush v. Gore decision.”

Since the election, Ohio’s Republican Gov. John Kasich has appointed Williams to fill a different seat on the juvenile court, which opened after a resignation. Williams must run in November to serve the remainder of the term — and since the legal battle over the 2010 vote could take years to settle, Hunter is running against him.

It has been an “eye-opening experience” both politically and legally, Hunter said.

Fellow Democrats, she said, “find it very interesting that the outcome of my case hinges on the decision in that rather infamous election.”

For previous High Court columns, go to washingtonpost.com/fedpage.

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