Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Invoking the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court effectively ended the 2000 presidential election contest. In Bush v. Gore, the Court determined that the Florida Supreme Court violated the Equal Protection Clause by not identifying and mandating uniform standards among counties for counting ballots.1 The Florida court had ordered a partial manual recount of the Florida vote for presidential electors, requiring the counting of all ballots that contained a “clear indication of the intent of the voter,” but allowing the relevant counties to determine the physical characteristics of a ballot that would satisfy this test.2

According to the Supreme Court, the recount process approved by the Florida Supreme Court “is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter.” 3 Once the right to vote is granted equally, the state cannot later, by “arbitrary and disparate treatment, value one person’s vote over that of another,” the Court announced.4 While acknowledging that local jurisdictions can implement different election systems, the Court underscored that it was remedying a state court ruling that failed to provide “at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” 5 However, the Court in Bush v. Gore limited its holding to “the present circumstances,” where “a state court with the power to assure uniformity” fails to provide “minimal procedural safeguards.” 6 Citing the “many complexities” of application of equal protection “in election processes generally,” the Court distinguished the many situations where disparate treatment of votes results from different standards being applied by different local jurisdictions.7

Once a geographical unit is established from which a representative is elected, the Equal Protection Clause requires all who vote in the election “to have an equal vote.” 8 In Gray v. Sanders, the Supreme Court invalidated a Georgia county unit system as a basis for tabulating votes whereby, based on population, each county was allocated a number of county-unit votes: “Counties with from 0 to 15,000 people were allotted two units; an additional one unit was allotted for the next 5,000 persons; an additional unit for the next 10,000 persons; another unit for each of the next two brackets of 15,000 persons; and, thereafter, two more units for each increase of 30,000 persons.” 9 Although each qualified voter was provided one vote in the statewide election under the “county unit system,” the Court observed that the “end result weights the rural vote more heavily than the urban vote and weights some small rural counties heavier that other larger rural counties.” 10 In striking down the law, the Court emphasized that standards of equal protection require that “[o]nce the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.” 11 Further, the Court in Gray characterized analogies drawn between this case and the electoral college, redistricting, and “other phases of the problems of representation in state or federal legislatures or conventions” as “inapposite,” observing that the Constitution expressly contemplates those processes and this “case is only a voting case.” 12

By contrast, in Gordon v. Lance, the Court approved a 60% affirmative vote requirement in a referendum election before constitutionally prescribed limits on bonded indebtedness or tax rates could be exceeded.13 Distinguishing its ruling in Gray v. Sanders, the Court pointed out that the equal protection violation found there was based on denying or diluting “voting power because of group characteristics-geographic location and property ownership-that bore no valid relation to the interest of those groups in the subject matter of the election . . . [and] was imposed irrespective of how members of those groups actually voted.” 14 Further, while acknowledging that the requirement departed from strict majority rule, the Court pointed out that the Constitution did not prescribe majority rule, but instead, proscribed discrimination through dilution of voting power or denial of the franchise because of some class characteristic-race, urban residency, or the like-and the provision at issue in this case was neither directed to nor affected any identifiable class.15

Footnotes

1

531 U.S. 98, 110 (2000) (per curiam). ( “Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.” )

2

Id. at 102.

3

Id. at 109.

4

Id. at 104–05 (citing Harper v. Va. Bd. Of Elections, 383 U.S. 663, 665 (1966)). The Court stated: “Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Id. at 105.

5

Id. at 109 ( “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.” )

6

Id.

7

Id.

8

Gray v. Sanders, 372 U.S. 368, 379 (1963).

9

Id. at 372.

10

Id. at 379.

11

Id.

12

Id. at 378.

13

403 U.S. 1, 7–8 (1971).

14

Id. at 4.

15

See id. at 6–7.