Reply #170: If I remember correctly ... [View All]

[Laelth]

... in Bush v. Gore the SCOTUS ruled that the state-wide recount ordered by the Florida Supremes violated equal protection because there was no state-wide, uniform method of determining a legal vote. The legislative standard was "clear intent of the voter," but Bush argued that without some definition of what that meant (merely a dimple, one detached chad corner, or two, or a completely removed chad?), then voters' ballots in different counties would be subject to different standards and that some voters' equal protection rights would be violated (some counties' votes would be worth more than others).

And it's correct to say that this case did not involve a suspect class. Had there been a suspect class argument, Bush would have gotten heightened scrutiny and would have had a better chance of winning the case. Instead, he made an equal protection argument that did not allege that the rights of a suspect class had been violated. As such, it was a low scrutiny case. In order for a state act or state law to survive low scrutiny review, all the state has to show is a legitimate state interest and a rational relation between the state act or law and the accomplishment of that legitimate state interest (also called the rational basis test). In Bush v. Gore, you'll find that the SCOTUS ruled that the state's law (as defined by the Florida Supremes) was arbitrary, meaning that there was no rational relation between the state's law and the accomplishment of a legitimate state goal (or interest). In other words, Bush won at low scrutiny. 99 times out of 100, the plaintiff loses at low scrutiny. Bush v. Gore is an exception.

Does that mean that an attorney can not bring a low scrutiny equal protection case? No. We are (for the moment) guaranteed access to the courts and can bring any suit we want. The question is, will we win? A plaintiff has a better chance of winning at heightened scrutiny than at low scrutiny. Bush won at low scrutiny because the majority wanted him to win the election. You can tell from reading the dissents that the majority's ruling in Bush v. Gore was an affront to traditional constitutional law and that Bush probably should have lost.

-Laelth