On December 6, 2006, the Sixth Circuit sitting en banc will hear arguments in an important election law case debating the precedential value of the Supreme Court's controversial 5-4 decision in Bush v. Gore, 531 U.S. 98 (2000)(per curiam), that decided the 2000 presidential election.
White and black voters in Summit and Sandusky Counties (in northern Ohio) and in Hamilton and Montgomery Counties (in southern Ohio) brought suit in the Northern District of Ohio for declaratory and injunctive relief, alleging inter alia that (i) the use of unreliable voting equipment (including punch card ballots) in some Ohio counties but not in others violated certain voters' rights under the Equal Protection Clause of the Fourteenth Amendment, and (ii) the use of punch card voting systems in Hamilton, Montgomery and Summit Counties had a disparate impact on African-American voters in violation of Section 2 of the Voting Rights Act of 1965.
In Stewart v. Blackwell, 356 F. Supp.2d 791 (N.D. Ohio 2004), Judge Dowd found in favor of Defendants, Secretary of State (current candidate for Governor) Ken Blackwell and others, holding that (i) the use of punch card ballots in Hamilton, Montgomery and Summit Counties did not violate the Due Process Clause, the Equal Protection Clause or the Voting Rights Act, and (ii) the use of optical-scan technology to count votes in Sandusky County did not violate the equal protection rights of voters.
On April 21, 2006, a divided panel of the Sixth Circuit reversed, Stewart v. Blackwell, 444 F.3d 843 (6th Cir. 2006), with Judges Martin and Cole in the majority, holding that the selective use of unreliable punch card ballots in some Ohio counties violates the Equal Protection Clause under the holding of Bush v. Gore. Judge Gilman dissented, relying on a law review article by noted election law scholar Professor Richard L. Hasen, Bush vs. Gore and the Future of Equal Protection Law in Elections, 29 FSU L. Rev. 377 (2001), to conclude that Bush v. Gore should not be applied as valid precedent. The dissent applied the standard of Burdick v. Takushi, 504 U.S. 428 (1992), to find that there is no equal protection problem with the selective use of punch card voting procedures. On July 21, 2006, the Court vacated the panel opinion and granted en banc review.
Professor Hasen's posts on his blog, Election Law, regarding the panel opinion are here and here. His update when the Court granted rehearing en banc is here. Howard Bashman has another comment on the panel opinion in his blog How Appealing located here. Professor Dan Tokaji, co-counsel for the prevailing parties who made the oral argument to the panel, has this post at his Equal Vote blog.
Professor Hasen has stated that, if the Supreme Court were to take any Bush v. Gore-type cae in the near future, "it is likely to be Stewart v. Blackwell, if the en banc court reaches the same decision as the three-judge Sixth Circuit panel holding that the selective use of punch card ballots in only part of a jurisdiction violates equal protection under Bush v. Gore."
The en banc argument on December 6 will begin at 2:00 p.m. in Courtroom 403.