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