I will premise my email by noting that I think that Bush v. Gore was a 
questionable decision.  That said, I think that the decision in Bush v. Gore 
supports only the view that Courts who establish statewide procedures must 
apply those procedures in an equal manner.  The use of Bush v. Gore to support 
a broader based equal protection argument is questionable since the Court in 
Bush readily acknowledges that there are additional complexities that make such 
an application difficult.  Moreover, the Court specifically notes that a 
legislative response is in order, not a judicial one.  These points seem to be 
ignored by the Ninth Circuit's decision (though I did read the decision quickly 
and could have missed such a discussion).  Some excerpts from Bush v. Gore 
following the email illustrate the point (see below).  As for why the state did 
not address the issue, I suspect it could have been a strategic move, a sort 
of "we think it is so inapplicable, we will not even respond to the possibility 
of its applicability."

Portions from the decision:

"The question before us, however, is whether the recount procedures the Florida 
Supreme Court has adopted are consistent with its obligation to avoid arbitrary 
and disparate treatment of the members of its electorate."

and

"The recount process, in its features here described, is inconsistent with the 
minimum procedures necessary to protect the fundamental right of each voter in 
the special instance of a statewide recount under the authority of a single 
state judicial officer. Our consideration is limited to the present 
circumstances, for the problem of equal protection in election processes 
generally presents many complexities."

and most importantly,

"The question before the Court is not whether local entities, in the exercise 
of their expertise, may develop different systems for implementing elections. 
Instead, we are presented with a situation where a state court with the power 
to assure uniformity has ordered a statewide recount with minimal procedural 
safeguards. When a court orders a statewide remedy, there must be at least some 
assurance that the rudimentary requirements of equal treatment and fundamental 
fairness are satisfied."

Finally,

"This case has shown that punch card balloting machines can produce an 
unfortunate number of ballots which are not punched in a clean, complete way by 
the voter. After the current counting, it is likely legislative bodies 
nationwide will examine ways to improve the mechanisms and machinery for 
voting."


Mark Leen
3L Law Student
Harvard Law School