October 08, 2020 Feature

Election Law

Edward B. Foley

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It’s been nearly 20 years and a lot has happened since then.

On Tuesday, December 12, 2000—exactly five weeks after that year’s Election Day—the U.S. Supreme Court issued its decision in Bush v. Gore, transforming election law and ushering in two decades of intense litigation over the voting process that shows no signs of abating. Ironic, perhaps, for a decision explicit that its “consideration” was “limited to the present circumstances” and thus intended to have only narrow, if any, precedential effect.

But no opinion gets to control how it is used by subsequent courts and litigators. Lawyers for candidates in campaigns ever since Bush v. Gore have been exploiting that case as an illustration of what judges can do if they are willing to intervene in an election dispute and settle the rules for casting and counting ballots.

Illustration by Chad Crowe

Illustration by Chad Crowe

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