Jeffey Rosen: In a Close Election, Bush v. Gore Could Spell D-I-S-A-S-T-E-R

It's November 2, and the presidential election looks close in Ohio. An army of lawyers are dispatched by the Bush and Kerry campaigns to scour all 11,614 precincts in the state for any hint of voting irregularities. Within hours, both sides have filed competing suits in state courts challenging the standards for counting provisional, absentee, and military ballots, as well as for the use of different voting machines. Within days, Laurence Tribe and James Baker are filing petitions to the Supreme Court, arguing that Bush v. Gore--the case that decided the 2000 election--compels the justices to intervene. The justices, who once confidently predicted that Bush v. Gore would have no effect on future elections, are horrified. Even the Bush v. Gore dissenters are shocked at the mess the decision has created. After all, Justice Ruth Bader Ginsburg called Bush v. Gore a "one-of-a-kind case" as recently as February 2003 in a speech to San Diego law students, adding optimistically, "I doubt it will ever be cited as precedent by the court on anything."

Unfortunately, the hopes that Bush v. Gore would fade from memory like an embarrassing dinner guest have proved to be wildly mistaken. And, if the election is close, the nightmare scenario described above seems all too likely to come to pass. During the four years since Bush v. Gore, the case has emboldened political candidates to file a tangle of litigation challenging election procedures in federal and state races--from the recall of Governor Gray Davis in California to the replacement of Senator Robert Torricelli in New Jersey. Moreover, in response to the legalization of politics that has followed Bush v. Gore, Democratic and Republican legal swat teams have been assembled to challenge the results of the 2004 presidential election if the vote in any state proves close enough to provide the margin of victory in the electoral college. And, even if the presidential election is not close, Bush v. Gore will continue to haunt congressional and local elections in November and beyond. "You could have dozens or even hundreds of cases filed on the Wednesday morning after the election," says Jack Goldsmith of Harvard Law School. "Given the litigation opportunities in Bush v. Gore, you could have real, real uncertainty for many weeks and months, not only about national elections but about local elections. And it's likely to get worse."

Bush v. Gore, you may recall, stopped the manual recounts in Florida during the last presidential election for two reasons. Seven justices held that Florida's failure to adopt uniform standards for recounting "undervotes"--that is, ballots on which no vote was clearly registered--violated a novel and previously unrecognized constitutional right: the right of each ballot to be counted in precisely the same way. Because five justices thought there was no time to conduct a uniform recount, they said none could take place. But, because they also failed to define precisely what kind of equality they thought the Constitution required, their opinion seemed to be tailored only to decide the 2000 presidential election. Three justices also said that the decision by the Florida Supreme Court to change the standards for recounting ballots violated Article 2 of the Constitution, which assigns control over presidential elections to the state legislatures.

Throughout U.S. history, of course, close elections have been followed by litigation. But Bush v. Gore has exponentially increased the legalization of politics. "There's no question that Bush v. Gore has made courts more open and sensitive generally to claims about voting breakdown," says Robert F. Bauer, who is coordinating postelection legal challenges as national counsel for the Democratic National Committee. The decision has been cited in more than 30 lower court opinions during the past four years and invoked in challenges to nearly every close election....