Hi Rick.  I've been mostly lurking on the electionlaw listserve.  As you
may know, NYU Press published my book "Understanding the 2000 Election: 
A Guide to the Legal Battles that Decided the Presidency."  Most of the
book is a nonpartisan explanation of the legal events of the Florida
phase.  But I do offer some analysis, and one piece of analysis is a
critique of the equal protection rationale for Bush v. Gore, while
offering a narrower, first amendment rationale for the merits (not
remedy) outcome.

The argument is that we should follow the line of speech/press cases
that invalidate statutory grants of subjective discretion to political
officials to pass on citizens' speech/press petitions for licenses,
permits, etc.  The concern is the risk that such discretion will be used
to help friends, hurt enemies.  Applying this reasoning to the Florida
statutory scheme for vote counting is fairly straightforward, for unlike
(say) Texas, the Florida statute delegated to each county the power to
determine what counts as voter intent.  Granted the line of cases I use
is in the speech/press area, but the logic easily extends to all
political rights.

This line of argument (a) supports the merits outcome in Bush v. Gore
but (b) narrows it considerably.  On my line of reasoning, the ninth
circuit is wrong in the California recall case, because the problem of
votes being counted differently, or with different error rate, is no
longer the point.

I'd be happy to have you post this on your blog, or on the electionlaw
listserve.

regards,
Abner Greene, Fordham University School of Law
212-636-6962