Richard L. Hasen · December 2013
81 GEO. WASH. L. REV. 1865 (2013)

Fights over election administration have become the “new normal” in the United States since the disputed presidential election of 2000, which culminated in the Supreme Court’s controversial decision in Bush v Gore. During the 2012 elections, the “voting wars” which had ensued since 2000 manifested themselves in a host of restrictive election rule changes passed mostly by Republican legislatures and implemented by Republican election administrators in the name of fraud prevention and administrative convenience. Democrats, the Department of Justice, and reform groups resisted the overreach, litigating over many of these changes. The results of this litigation were a mixed bag. For example, courts approved some voter identification laws, rejected others, and put Pennsylvania’s and Wisconsin’s laws on hold for the 2012 election. Overall, it appeared that in the most egregious cases of partisan overreach, courts were serving, often with surprising unanimity, as a judicial backstop. In Ohio, one of the twin epicenters (alongside Florida) of the 2012 voting wars, two important cases relied in part on Bush v. Gore to expand voting rights. The story of the 2012 voting wars is a story of Republican legislative, and to some extent administrative, overreach to contract voting rights, followed by a judicial and public backlash. The public backlash was somewhat expected—Democrats predictably made “voter suppression” a key talking point of the campaign. The judicial backlash and the resurrection of Bush v. Gore in the Sixth Circuit, however, were not. The judicial reaction from both liberal and conservative judges, often on a unanimous basis, suggests that courts may now be more willing to act as backstops to prevent egregious cutbacks in voting rights and perhaps to do even more to assure greater equality and fairness in voting. However, it is too early to know for certain.

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