Bush v. Gore Lives

SCOTUSblog has Analysis: Bush v. Gore lives. The 6th Circuit Court of Appeals in Ohio decided Friday about the issue of using different voter machines in different precincts when they have different accuracy characteristics. It turns out that punch cards produce far more over- and under- votes than other devices, and that devices that produce a receipt work well. Well if different precincts use different devices, that means voters have different odds of having their votes counted accurately and is that a violation of the Equal Protection Clause?

An Ohio court originally found that it wasn't. The 6th Circuit on Friday reversed that decision and based it's opinion heavily on the US Supreme Court's Bush v Gore decision of 2000. Remember that one? It's the on that said "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Basically, this decision is just for this case and not for precedent. Scalia once explained that that case was very unusual in its time constraints, they only had a couple of days when they normally have several months for such a decision, hence their warning.

But the 6th Circuit decision cited the Bush decision 116 times saying: "Even if the Court was playing fast and loose with the law, we, as an inferior court, are not in a position to disregard Supreme Court precedent because we think they got it wrong....Whatever else Bush v. Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it." So was Bush v. Gore binding or not? You'd think counting votes was simpler than this. Where's Jimmy Carter when you need him?