Although it might make sense to construe the Equal Protection Clause as
requiring rough equality in error rate and voters-per-hour, I doubt that
Bush v. Gore can be profitably read to this effect.  The majority says
it wasn't talking about voting system disparity (dicta, granted, but
with a clear signal) and Souter says voting system disparity isn't
unconstitutional.

I continue to think that the best reading of Bush v. Gore is a concern
with nonuniform counting standards and the potential for local official
discrimination, i.e., an analogy to the first amendment Lovell v.
Griffin line of cases.  In an article called "Is There a First Amendment
Defense for Bush v. Gore?", forthcoming next spring in the Notre Dame
Law Review, I make this argument in an extended format.  I address in
detail what the first amendment caselaw holds, and what it doesn't; why
analytically the analogy between the first amendment setting and vote
counting setting is sound; respond to various objections about extending
the Lovell line to vote counting; and discuss in detail whether Justice
Stevens was right in saying that a single, impartial arbiter would have
cured any nonuniformity problem, and whether the US Supreme Court should
have remanded for the Florida Supreme Court to "impose" uniform
standards.

I'll get the piece up on SSRN soon and send an e-mail here when I do.

regards,
Abner Greene, Fordham Univ. School of Law (a devastated Kerry supporter
who still believes that there were serious problems with Florida's
recount in 2000)

EDWARD FOLEY <foley.33@osu.edu> 11/05/04 12:39 PM >>>

Members of this list might be interested in the following, which
concerns disparities in the availability of voting machines in Ohio this
year:

http://moritzlaw.osu.edu/electionlaw/analysis/041105a.htm

As mentioned at the end of the posting, while this disparity would not
be a basis for revisiting the result of this year's election, it raises
the possibility of some kind of injunctive relief pursuant to Bush v.
Gore, in a effort to avoid a similar disparity next time.

Ned Foley