Rick puts it deftly but unduly diplomatically in saying that
    "Bush v. Gore can be read as either a substantive equal protection decision
that requires equal statewide outcomes in the effective weight given each vote
or as a procedural decision that requires vote counting rules specified ex ante
and
objectively enough to reduce the risk of partisan manipulation of the
counting process to a tolerable level."
    For an effort to suggest that Bush/Gore belonged on Due Process, not EP,
see my In Bush v Gore:  Whatever Happened to the Due Process Ground?
34 Loyola(Chicago) 211 (2002).
    As Richard Briffault and others have shown, among the EP ground's many
problems was that it imposes a degree of centralized decision-making that our
election administration has never had (which isn't to say it shouldn't have).
In contrast, the DP ground calls only for --well, Pildes puts it perfectly.
Note that the only case Souter cited in his concurrence, is a DueProcess case
(altho that case included a separate opinion by Blackmun, concurring with his
own opinion for the Court, in which he went on to EP.)
    Perhaps the State's brief has been unduly rushed, like the ACLU's by Larry
Tribe et al, addressed to "The Honorable Justices of the Ninth Circuit".  May I
note that Tribe opened his Bush/Gore argument at the SupCt saying he "would
want to note at the outset that the alleged due process violation which keeps
puffing up and then disappearing ... is really not before the Court."  (And he
badly botched Due Process in his otherwise super Harvard piece on That Case.)
    If Bush/Gore is recast as really about Due Process --again, Pildes puts it
so well-- then the Ninth Circuit's adventurous souls would have a harder time,
no?
Rick Pildes wrote:

Now that the CA 9 has announced a rehearing en banc, perhaps list members
can provide insight on the following:  Bush v. Gore can be read as either a
substantive equal protection decision that requires equal statewide
outcomes in the effective weight given each vote or as a procedural
decision that requires vote counting rules specified ex ante and
objectively enough to reduce the risk of partisan manipulation of the
counting process to a tolerable level.  Einer Elhauge, in the Wall Street
Journal and in Policy Review, as well as Abner Greene, have pressed for the
procedural interpretation of Bush v. Gore.  Yet so far, that reading of
Bush v. Gore has appeared nowhere in the State's briefs, nor has it been
discussed on the list at all.  My own view is the text of the Bush v. Gore
can be read to support either view; I also think the procedural view is
probably the better justification for the decision, whichever reading the
text supports; but that a majority of judges are likely to read Bush v.
Gore for the outcome-oriented substantive principle of equally-weighted
votes.  Why has the State not pressed the alternative view?  And if my
assessment of likely judicial responses is right, why would that be, given
the textual and functional plausibility of the Elhauge position?

Rick Pildes
Professor of Law, New York University School of Law
40 Washington Sq. South
Room 322-B
New York, NY 10012-1099
also reachable at:  rick.pildes@nyu.edu
o:  212 998-6377
fax:  212 995-4341
http://www.law.nyu.edu/faculty/profiles/bios/pildesr_bio.html