Bush v. Gore1 was a straightforward and legally correct decision. If one were
familiar only with the commentary that ensued in the decision’s wake, this claim might
sound almost lunatic. This article will explain why the Supreme Court acted properly,
indeed admirably, and why the ubiquitous criticisms that have been leveled at the Justices from both the left and the right are at best misguided.2
For almost forty years, the Supreme Court has treated the stuffing of ballot boxes
as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect
forms of vote dilution have also been outlawed. Like some ofthose practices, the selective
and partial recount ordered by the Florida Supreme Court may have been an inadvertent
form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegalv otes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightlyconcludedthatthe vote dilutioninthis case violated well-established equal protection principles.
Nor did the Supreme Court err in its response to this constitutional violation.
