THE BLOG
04/15/2011 03:24 pm ET Updated Jun 15, 2011

Ten Years After Bush v. Gore , the Supreme Court Can Recommit to Equal Protection

Imagine going to vote at your local polling place and being instructed wrongly by a pollworker about which precinct table to go to or being given the wrong ballot by a pollworker. Imagine further that, through no fault of your own, your ballot is not counted simply because the election official made a mistake. That's exactly what happened in the 2010 election in Hamilton County, Ohio, the county that includes Cincinnati. And this week, a Republican candidate in Hamilton County, who favors precisely this disenfranchising treatment, took the matter to the U.S. Supreme Court.

A little more than ten years ago, the Supreme Court in Bush v. Gore used the Equal Protection Clause of the Constitution to halt the counting of votes in Florida, effectively deciding the 2000 presidential election. In a dispute arising out of a local race for Hamilton County Juvenile Court Judge, the Supreme Court may soon hear its first case decided under that precedent. Although the political stakes are different, this case has the potential to -- once again -- reshape whether votes are counted and how elections are conducted in the United States.

Although the Republican candidate John Williams had a large lead on election night, only 23 votes separated him from the Democratic candidate Tracie Hunter after the Board of Elections tallied provisional ballots. (Provisional ballots are the supposed safety net that Congress mandated in the Help Americaa Vote Act after the Bush v. Gore decision.) After last November's election, the Hamilton Elections Board agreed to count certain provisional ballots that were cast in the wrong precinct because its investigation made clear that the voters had done nothing wrong and pollworker error was responsible. The Board refused, however, to investigate whether other provisional ballots cast in the wrong precinct were also the result of pollworker error. It's worth noting that the rejected provisional ballots were more likely to have been cast in Cincinnati's minority neighborhoods.

Invoking the Bush v. Gore holding that similarly situated ballots must be treated equally (i.e., counted under the same rules), Hunter sued in federal court. The district court ruled in Hunter's favor, and on appeal the Sixth Circuit agreed, ruling that the Equal Protection Clause prevented the Hamilton County Board of Elections from treating similar groups of provisional ballots in different ways, counting some and refusing to count others. Additionally, as a matter of due process and fundamental fairness, the Sixth Circuit suggested that a Board of Election may not simply refuse to count a ballot where its invalidity is a direct consequence of pollworker error.

Now, Williams and the Republicans on the Hamilton Elections Board have appealed to the Supreme Court in a last ditch effort to overturn the rulings below -- and, practically speaking, halt the vote counting in yet another election. Hunter is expected to file her response today. The reputation of the Supreme Court has suffered more in the aftermath of Bush v. Gore than at any time in our nation's recent history; I hope the Court will now remain true to its newfound commitment to equal protection and ensure that all ballots are counted equally.