As Americans turn out to vote today, the ghost of the 2000 Presidential elections will hover over the voting booths. According to The New York Times, this will be the first midterm election in which the “Democratic Party is mobilizing teams of lawyers and poll watchers” to check for voting irregularities. Where there are “teams of lawyers” mobilized, can lawsuits be far behind? According to election law expert Dan Tokaji, any number of things “can cause problems on election day,” from problems with voting machines to the use of so-called “provisional ballots,” which allow people to cast votes on election day despite questions about their eligibility.

But of course the lawsuits have already begun, and the case that decided the 2000 presidential election is now giving lower court judges headaches. Long a whipping boy of progressive law professors, the infamous decision in Bush v. Gore is facing judges who have to try to make sense of it in the context of the new wave of election-law litigation. And the first question they have to confront is whether they should be making sense of Bush v. Gore at all. For Bush v. Gore notoriously announced that “[o]ur consideration is limited to the present circumstances,” a line which some legal academics likened to a ticket good for one day only, or a self-destruct mechanism: after the President was chosen, the case blew up. Was the Supreme Court really trying to signal that Bush v. Gore should have no precedential value?

According to the majority in a recent Sixth Circuit court decision, now vacated and awaiting a hearing by the Sixth Circuit sitting en banc, the answer to this question had to be “no.” At issue in the case, Stewart v. Blackwell, was whether the use of older voting machines in some counties represented a violation of the Equal Protection Clause because it meant a greater chance that votes in those counties wouldn’t be counted. Rehearsing an impressive story of the expansion of the right to vote, the Sixth Circuit in its now-vacated decision invoked Bush v. Gore in holding that the right applied not just to who had the vote, and to how much weight their vote was given (as in the ‘one man, one vote’ standard), but also to whether their vote would have an equal chance of being counted. As a result, the judges ordered Ohio to replace its outdated voting machines. In response to the objection that Bush v. Gore was not a precedent, the Sixth Circuit replied simply that “[r]espectfully, the Supreme Court does not issue non-precedential opinions.”

The problem with this reply is that it ignores the “limiting language” of Bush v. Gore, something that the dissent in Stewart v. Blackwell pointed out. And the use of the familiar device of “limiting a case to its facts” in Bush v. Gore has a significance that has been almost universally missed in the flood of commentary on the case. When the Supreme Court limits a case to its facts, it is on the way to overruling it, by nullifying the principle that decided the case. Thus, in an entirely typical use of the phrase, Justice Thomas wrote in M.L.B. v. S.L.J. that “[e]ven if the Griffin line [of cases] was sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled.” Sometimes a concurring Justice will say that the majority opinion was limited to its facts as a way of expressing a disagreement with the principle of the majority, even though the Justice agreed with the result. But Bush v. Gore is wholly unique in using limiting language to (apparently) nullify the principle of an opinion, not in a concurrence to the opinion, but in the majority opinion of the very case. It is no wonder that Bush v. Gore has caused such confusion in the lower courts. It is as if the Supreme Court had written an opinion, and then, in a bow to René Magritte, put as its last sentence: “This is not an opinion.” What is a lower court to do?

On the one hand, lower courts could simply ignore Bush v. Gore and pretend it never happened, which may be what the Supreme Court is hoping lower courts do. But this is to ignore what looks like a new principle in Bush v. Gore regarding the equal treatment of voters, which, we should recall, was not only endorsed in the per curium opinion, but also taken seriously by Justices Breyer and Souter in their dissents. It also goes against a pretty persuasive model of the bindingness of Supreme Court opinions, a classic formulation of which was given by none other than Justice Scalia. “[W]hen, in writing for the majority of the Court,” Scalia said in a 1989 law review article,

By letting the Supreme Court issue a rule good for one case and one case only, lower courts could leave the impression that the Court just was indulging its political preferences in Bush v. Gore.

On the other hand, lower courts could treat Bush v. Gore as binding precedent, and struggle as best they can to discern the proper scope of the equal protection guarantee the case purportedly propounded. This is what the Sixth Circuit court did, relying on Bush v. Gore as the next big principled step in a long line of equal protection voting-rights jurisprudence. But as we saw, this meant willfully disregarding the Court’s language limiting the case to “the present circumstances.” Even worse, if lower courts attempt to extend Bush v. Gore to present circumstances, then they may interfere in elections without a uniform equal protection standard to guide them. A case in point might be the Ninth Circuit’s Bush v. Gore-inspired ruling in 2003 stopping the gubernatorial recall election in its tracks until the six counties that still used punch card ballots replaced them with newer technology (that decision was reversed when re-heard en banc).

The Sixth Circuit’s decision in Stewart v. Blackwell was vacated almost immediately after it was decided. The case will now be reheard by the Sixth Circuit sitting en banc sometime in December. It will be interesting to see how the court tries to solve the conundrum presented by Bush v. Gore. One thing that seems clear, however, is that no matter how the court rules, there will be continued confusion in the lower courts until the Supreme Court says exactly what was going on in Bush v. Gore. For Bush v. Gore is not, as some critics have alleged, a merely incoherent opinion; it is contradictory, both setting down a rule and denying that any rule had been set down.

The Court has so far behaved as if Bush v. Gore does not exist, not yet having cited it (pro or con) in any case. If Stewart v. Blackwell is not the case that ultimately forces the Supreme Court to show its hand, some other case will have to be.

Chad Flanders is a third-year student at Yale Law School.

Preferred citation: Chad Flanders, Please Don’t Cite This Case!: The Precedential Value of Bush v. Gore, 116 Yale L.J. Pocket Part 141 (2006), http://yalelawjournal.org/forum/please-dona8217t-cite-this-case-the-precedential-value-of-bush-v-gore.

“Come on, get over it.” —Justice Antonin Scalia, referring to the Supreme Court’s decision in Bush v. Gore.