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U.S. Supreme Court

Retired Justice Stevens Hits ‘Misleading’ Parts of Bush v. Gore, Suggests Extension of Rationale

Posted May 23, 2012 8:03 AM CDT
By Debra Cassens Weiss

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Retired Justice John Paul Stevens took aim at Bush v. Gore on Monday, criticizing parts of the controversial opinion as misleading and its reliance of the equal protection clause as lacking a “coherent rationale.”

Stevens spoke Monday evening at a meeting of the American Law Institute, report the New York Times Taking Note blog and the Election Law Blog. During a Question and Answer session, Stevens was asked if politics influenced the 2000 decision that effectively paved the way for George W. Bush to assume the presidency. “I don’t know,” Stevens replied.

Despite that answer, Taking Note suggests Stevens has an opinion. “Without reading too much into this,” the blog says, “it seems clear that Justice Stevens is suggesting that politics, rather than logic, were at work in Bush v. Gore.”

Stevens dissented in Bush v. Gore, arguing that there was no need to intervene in the Florida recount. The majority’s per curiam decision found that a Florida ballot recount violated the equal protection clause because the state supreme court failed to articulate precise standards governing how election officials should determine voter intent based on hanging and dimpled chads; Stevens argued there was no constitutional violation.

In his remarks on Monday, Stevens said the per curiam majority was “misleading” in its description of changing vote recount standards in Palm Beach County and in its “implicit suggestion” that failing to order a recount of overvotes in the state was error.

Stevens also remarked on the equal protection rationale in the case, though the majority did not envision Bush v. Gore as precedential. In the opinion, the majority stated: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

“The principal point I want to make,” Stevens said, “concerns the absence of any coherent rationale supporting the opinion’s reliance on the equal protection clause.” In Stevens' view, the rationale could be used and extended in voting rights cases—to prevent political gerrymandering.

“My principal purpose in calling your attention to the court’s reliance on the equal protection clause in Bush against Gore is to emphasize how that provision of our Constitution, properly construed, would invalidate an invidious form of political behavior that remains popular today,” he said. “If a mere defect in the standards governing voting recount practices can violate the state’s duty to govern impartially, surely it must follow that the intentional practice of drawing bizarre boundaries of electoral districts in order to enhance the political power of the dominant party is unconstitutional.”

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