Disputed Elections Post Bush v. Gore: Are Federal Courts Entering the Political Contest Thicket?

Working Paper No.: 
17
Date Published: 
04/16/2011
Author(s): 
Mark Braden
Of Counsel
Baker Hostetler

Introduction

The article will first briefly provide a broad view over of our system in the United States for the resolution of disputed elections. The aspiration is that this will frame an examination of four election disputes post the Bush v. Gore decision. Three of the disputes are used because they arguably are the most widely followed and extensively contested election results since 2000: Washington Gubernatorial (2004), Minnesota Senate (2008) and Florida 13th Congressional District (2006). The final is examined because it may be the only significant decision using Bush v. Gore as precedential authority in an election contest or recount: Hamilton County, Ohio Common Pleas Court Juvenile Judge.

Some scholars have predicted that Bush v. Gore, "is not likely to be precedent for much at all." They believe Bush v. Gore would be strictly limited to the "'special instance' when there is a statewide recount ordered by a court and where it can be shown that there are diverse recounting procedures in various jurisdictions. In fact, the Court in Bush v. Gore stated that the "larger question about variability of election practice among local entities is not before the Court, so it did not render judgment on the matter."