The Supreme Court majority in Bush v. Gore1 has taken a lot of flak for its ruling that the Florida count of undervotes violated the Equal Protection Clause of the Fourteenth Amendment. Commentators, and not only those on the left, have labeled the Court’s reasoning as without basis in precedent, weak in its logic, and breathtakingly sweeping in its implications.2 For those inclined to suspect the justices of naked partisanship, the equal protection argument did nothing to allay those suspicions.
It is argued in this Essay, however, that the case for an equal protection violation is supported both by precedent and logic and is not particularly sweeping in its implications. Here is the basic point. The Equal Protection Clause instructs the state to treat its citizens equally.3 That means that when Florida is distributing some benefit or burden on a statewide basis, it may not distribute more of that benefit or burden to people in one part of the state than it does to people in other parts of the state unless it has a legitimate reason for doing so.
The Supreme Court, the Florida Vote, and Equal Protection,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol38/iss4/4