As we approach another Presidential election, it is well to revisit the impact of Bush v. Gore.

In December 2000, the U. S. Supreme Court did not merely decide another case: it anointed a president while the vote count was still underway. The ostensible legal argument was based on Equal Protection of the Law. It said two things that were and are extraordinary: (1) The Supreme Court of Florida was not guaranteeing equal protection for its State’s voters because, it argued, different counties used different criteria to determine the intent of the voter, thus, astonishingly imposing the solution to stop the vote count in its tracks while the vote count “happened” to favor Bush, an unprecedented and stunning incursion into State governance of elections, and (2) its opinion is “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

Was SCOTUS seriously telling us that the literal elephant in the room should be regarded as not there? This shameless, partisan, decision—ironically—may provide the armamentaria for attacks on efforts to disenfranchise certain voters, primarily people of color and the poor. Not only does it reaffirm the sanctity of the vote, it provides federal courts with new found powers to oversee the details of how a state administers its elections, and, if found to offend constitutional principles of equal protection, intervene.

We do not elect our President directly by popular vote. We elect “electors” in each state. A state can rig an election by gerrymandering[1] its congressional districts. This is usually done by grouping people of color and the poor into a smaller number of districts, and historically Republican voters into a majority of Congressional Districts. Thus, minority voters have their voices muted by shoving most of them into a few districts or thinning them out so much that the effectiveness of their votes is watered down.

Gerrymandering, therefore, places a thumb on the scales of democracy. When Republicans, in 2010, captured a large number of governorships and state legislatures, they promptly gerrymandered the districts in their states to favor Republicans. In this manner, control over the House of Representatives was virtually guaranteed at least until the next census, or until these partisan districts are successfully challenged. The fact that a majority of Americans in some of these states didn’t vote for republican congressmen became irrelevant, because the gerrymandered districts delivered the majority of the electors to the Republican Party.

 So, I pose a few questions:

  • Does not gerrymandering, that blatantly sets out to devalue the votes of one group and exaggerate the effectiveness of another, violate the Bush v. Gore doctrine that voting laws and procedures must adhere to constitutional standards of equal protection?
  • Should not every vote cast be counted with equal weight?
  • Shouldn’t every citizen of voting age have an equal opportunity to register to vote?
  • Must we make the process of voting easier, as opposed to harder?

If your answer to these questions is yes, then Bush v. Gore might provide the constitutional argument that supports your view. The following two quotations from the majority opinion provide a spirited defense of this most basic right of a democracy:

“When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”

“The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. 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. …[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment. …the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” (Internal quotation marks omitted.)

The “per curium” decision (the majority didn’t have the courage to actually sign the opinion, but since Ginsberg, Stevens, Souter and Breyer dissented, the majority is not hard to figure out) says, in effect, that it is not legal precedent, an unknown concept in Supreme Court jurisprudence. It remains a written, published, decision of SCOTUS – and it can’t hide. Our settled doctrine of stare decisis should require all lower courts to strike down every state law or procedure that denies equal protection to voters.

To the likes of Justices Rehnquist, Scalia, Kennedy, O’Conner and Thomas: our legal process is about to rely on unassailable legal precedent, acknowledged, relied upon, and even created by you, to protect the heart of our democratic system. You, and others like you, may have gutted the Voting Rights Act, looked the other way when people of color and the poor were disenfranchised, engaged in polemical distortions to justify Jim Crow’s disguised return, but the force of our democracy is mightier than even all that.

Proper application of Bush v. Gore can reveal the presence of that partisan, anti-democratic, elephant in the room and place us back on the path toward universal suffrage.

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[1] While Elbridge Gerry (VPOTUS 1813-1814) was Governor of Massachusetts (1812), his Republican controlled legislature created a congressional district that was said to be in the shape of a salamander. Thus, the term “gerrymander” was born, and has stuck to describe a district drawn to favor one political party.

Originally published on Counterpunch.org